Purchase Order Terms & Conditions
This Purchase Order is subject to your acceptance of the following terms and conditions:
- “Sensia,” “We,” or “us” means Sensia LLC or the subsidiary named in this Purchase Order (“Order”), “you” means the seller named in this Order, and “Products” means the goods and services listed in this Order. Sensia and you are sometimes individually called “party” and together “parties.”
- Accepting this Order. You may accept this Order in writing, by an acknowledgement of this Order through a supplier network portal or by providing the Products, whichever you choose to do first. If you propose to change the terms of this Order in any way, you must understand that none of your proposed terms will become part of this Order and we reject all such terms unless we expressly accept them in writing. Even if this Order refers to a quotation or proposal by you, it does not accept the proposal or quotation or any terms it might contain, and the terms of this Order still apply.
- Pricing and Discounts. We will buy Products for the price stated in this Order. If no price is stated in this Order, the price will be the last price you charged or quoted us. Unless we have stated otherwise in this Order, the price includes all delivery costs. You will be responsible for any other costs before completed delivery. If your payment terms include a discount for prompt payment, we will calculate the discount from the later of when we receive acceptable Products or a correct invoice.
- The law provides us with certain warranties. In addition to those, you warrant to us and our customers that all Products will: (a) conform to the specifications, drawings samples, or other written descriptions that are made a part of this Order; (b) be free of defects, made with new materials (unless we agree otherwise in writing), of merchantable quality and workmanship, and suitable for our intended purposes; (c) be free from defects in design, material, and workmanship; (d) fully comply with all laws, regulations, and industry standards where the Products are manufactured, stored, shipped, used, and sold; and (e) not infringe, nor will our use of them infringe, the intellectual property rights (including trade secret rights) or any other confidentiality, proprietary, or contractual rights of anyone else. You will assign to us any warranties you receive from someone else related to the Products. If the warranties cannot be assigned, you agree to make claims under the warranties on our behalf upon our request. You represent and warrant that the Products do not contain any "open source" software, any portion of “open source” software or firmware code, including but not limited to code that is licensed under the GNU General Public License.
- Possible Problems and Changes. You must tell us immediately if you learn of anything that might indicate a quality or safety issue with the Products or could cause you to violate any of your warranties. You must tell us at least 90 days in advance of any proposed change in the Product’s design, specification, materials, or site or method of manufacture, and you may only proceed upon our prior written consent. Please use a Supplier Change Notification Form, or your company’s own equivalent, to communicate changes of this type.
- Shipping Terms. Unless stated otherwise in this Order, you bear the risk of loss until the Products are delivered and accepted in writing by us. Delivery will then be complete. Unless we agree in writing, all deliveries must be on weekdays during normal business hours. If we request shipment to our customer or our designated freight forwarder, we will provide you with the customer’s or freight forwarder’s name and address before the scheduled shipping date.
- Shipping Documents. You must include your name and address (as well as the name and address any third party responsible for shipment); description of Products (in English if shipping to the United States); Order number by line item; lot number; country of manufacture; agreed Incoterms 2010, including the named place or port; receiving dock location; and any other identification number that we may give you on all shipping documents and each shipping unit. You will provide accurate and complete information on the commercial invoice, packing list and customs documents. Lack of adherence to the above requirements may delay payment.
- Timely Delivery. The delivery of Products on this Order must be made in the quantities and on the date specified on the Order. If you fail to deliver the quantities at the stated time, we may: (i) cancel the specific delivery; (ii) terminate this Order; (iii) refuse to accept delivery; or (iv) choose to accept late delivery. You will be responsible for any damages we suffer as a result of delivery deviating from the Order.
- Rejecting the Products. Our payment for the Products does not necessarily mean that we have accepted them. When we receive Products, we may inspect them but are not required to do so. At any time and at your expense, we may reject and/or return Products to you that exceed the quantity ordered or that violate your warranties. If we return Products that violate your warranties, you will replace them as soon as possible with Products that meet your warranties or refund our purchase price (plus inbound transportation charges, if bought FCA shipping point), whichever we choose, and you will reimburse us for our damages.
- Canceling this Order for Convenience. We may cancel this Order at any time, in whole or in part, for convenience by notifying you any time before you deliver the Products. After we give you such notice, you will take all reasonable steps to minimize your costs due to our cancellation. We will pay you for your unavoidable costs (less any savings realized from our cancellation and excluding any profits) that you can document to our reasonable satisfaction, but we will not reimburse costs exceeding the value of the cancelled order. You will refund to us all unearned progress payments made to the date of cancellation of the Order.
- Canceling this Order for Cause. We may cancel this Order at any time if you fail to perform any of your obligations under this Order or cannot assure us that you will be able to continue to perform your obligations. We will not be responsible for any costs you incur, and we will have all rights and remedies available to us under law or in equity.
- Electronic Commerce and Communication: You will support our electronic commerce and communication programs such as: E-Sourcing/Procurement, Inventory Management, Electronic Invoice Presentment and Payment (EIPP), Electronic Data Interchange (EDI), Supply Network Collaboration (SNC), and other web-based or Business to Business (B2B) Systems as requested by us (collectively referred to as "Electronic Commerce"). In addition, you shall follow all supplier onboarding procedures and associated instructions provided by Sensia and as amended from time to time, including uploading Supplier Inventory Monitor (SIM) reports to the Sensia portal as requested. If we elect to purchase by Electronic Commerce such purchases will continue to be governed by the provisions of this Order and as may be provided in a separate Electronic Commerce agreement between us.
- Making Changes. We may ask in writing to make changes to drawings, designs, specifications, quantities, delivery schedules, production location, manufacturing process, or other terms of the Order. If a change affects your costs or ability to deliver the Products on time, you must tell us in writing, by using the Supplier Change Notification Form, or your company’s own equivalent, within 30 days so we can decide if we want you to go forward with the change. If a change affects your costs and we ask you to proceed, the parties will negotiate a fair adjustment to the price.
- Owning Custom Features of the Products. If you develop custom features for the Products (“Custom Work”) in performing under this Order, you transfer and assign all of your right, title and interest in the Custom Work to us automatically upon creation, including all rights in copyright, the right to register and renew the copyright throughout the world, and any other rights. You agree that the Custom Work is work made for hire under applicable law. You represent and warrant that: (a) the Custom Work was developed through your sole and original efforts and does not infringe the intellectual property or privacy rights of any person; and (b) you have no other arrangements that would interfere with assigning us all of your interest in the Custom Work. You waive any right of approval or moral rights that you may have with respect to modification, combination or any other use of the Custom Work, and on behalf of yourself and your successors, waive any right of reversion which you or they may have, to the extent permitted by law.
- Protecting Us from Losses. You indemnify, defend and hold us (and our affiliates, shareholders, directors, officers, employees, agents, subcontractors, suppliers and customers) harmless from any and all liabilities, damages, injuries, losses, claims, suits, judgments, and expenses (including but not limited to reasonable legal fees, court costs, and out-of-pocket expenses) arising from the Products provided by you under this Order, including but not limited to: (a) a breach of this Order by you or your employees, agents, or subcontractors; (b) acts or omissions related to this Order by you or your employees, agents, or subcontractors; or (c) infringement of any intellectual property right related to the Products or our use of them (unless caused solely by your proper use of our intellectual property). If a claim affects our use of the Products, you will, at your expense and our sole discretion, (i) procure for us and our customers or transferees the right to continue to use and sell the Products; or (ii) redesign the Products to make them non-infringing without diminishing the original functionality.
- Insurance Requirements. During the term of this Agreement and as long as we may reasonably request, you will, at your own expense, procure and maintain the following insurance policies to cover the work as well as any other policies applicable by law in the jurisdiction in which the work is performed:
16.1 Commercial General Liability insurance including but not limited to blanket contractual, premises liability, completed operations and products liability coverage in an amount not less than $5,000,000 per occurrence and in the aggregate. Coverage will apply on a worldwide basis.
16.2 Automobile Liability including coverage for all owned, hired and non-owned automobiles with a limits not less than $2,000,000 combined single limit of liability.
16.3 Workers’ Compensation insurance with statutory limits and Employers’ Liability insurance with limits not less than $1,000,000 per employee, per accident and per disease.
16.4 If professional services are being provided, Professional Liability insurance covering all claims arising out of errors & omissions including designs with a limit not less than $5,000,000 per occurrence.
16.5 If software products and/or services are provided, Professional Liability insurance including Technology Errors & Omissions, Privacy and Cyber-Risk (Network Security) Liability insurance with a limit not less than $5,000,000 per occurrence.
Sensia and its affiliates, shareholders, directors, officers, employees and agents shall be additional insured with respect to all liability policies on a primary basis. Any insurance possessed by us shall be excess and noncontributory.
The above minimum limits may be satisfied through the use of primary and umbrella/excess liability insurance policies. The policies shall contain a provision that it cannot be cancelled or materially changed without 30 days' written notice to us.
Deductibles and self-insured retentions are your sole responsibility. Each insurer must possess a minimum Best's rating of "A-" (or equivalent rating by the comparable rating agency in your country), and be licensed to conduct business in all states/countries where this Order applies. You must understand that the types and amounts of insurance will not limit your liability to indemnify, defend, and hold us harmless. In our sole discretion, we may revise the requirements regarding the type of insurance and limit of liability.
Subject to our sole discretion to grant permission to you to hire subcontractors, you are obligated to ensure that each of the subcontractors obtains and maintains each of the above coverages and extends the same indemnity obligations as set forth herein to us. If the subcontractor fails or is unable to honor these obligations in any manner, you contractually agree to assume this obligation of the subcontractor. Failure to comply with this section will be considered a breach of the contract documents.
You will not start work or enter upon the work site without providing the Certificates of Insurance required by this agreement. You will be responsible for any delays caused by your failure to submit the Certificates of Insurance.
- Buyer Materials. Title (including right of immediate possession) to all tooling, dies, and material furnished by us to you or purchased from you by us (“Buyer Materials”) shall remain with us. Any Buyer Materials are held by you as bailee. Buyer Materials must be: (a) maintained in good condition, (b) permanently identified as our property, (c) adequately insured at your expense for our protection, and (d) used only for work ordered by us. You will ensure that all Buyer Materials are readily identifiable as our property and not commingled with property belonging to you or others. Upon our request, you will return Buyer Materials to us in good condition (fair wear and tear excepted).
- Inspecting Your Facility. We or our representative may inspect any facility where you make, store, or ship the Products, with reasonable notice and in a reasonable manner, up to two times a year (or more frequently if we find a breach of this Order). If the inspection reveals that you have breached any Order, you will immediately take all corrective actions that we may require. We or our representative may return to inspect your facility as often as needed to reasonably ensure that the breach has been corrected. Inspections are at our discretion and do not relieve you of any obligations under this Order.
- Protecting Our Confidential Information. You will treat as confidential (a) all specifications, documents, data, designs, or other information delivered by us to you and (b) any other non-public information that you may receive from or learn about us (collectively, “Confidential Information”). You may only disclose our Confidential Information on a need-to-know basis to your employees (and your agents and subcontractors previously authorized by us to work with you who have signed confidentiality agreements reasonably acceptable to us). You may use our Confidential Information solely to fulfill this Order and not for any other purpose, and you may not disclose it to anyone else. We own the Confidential Information, and when this Order is completed or cancelled, you must return it to us if requested without keeping any copies. Neither party will publicly disclose the terms of this Order or our business relationship and transactions nor use the other’s name or trademark without prior written approval. The obligations under this clause will survive the cancellation, termination, or completion of this order.
- Addressing Events beyond Reasonable Control. If either party is unable to comply with this Order (excluding your shortage of personnel, your shortage of production materials; strike by your employees, or breach of contract by your third party providers) because of events beyond its reasonable control, that party will promptly notify the other in writing and will make reasonable efforts to restore its ability to perform within 10 days. If the inability to perform continues for more than 10 days, the other party may cancel this Order immediately, without costs or penalty, by giving written notice to the party unable to perform. For the purposes of this paragraph, “events beyond its reasonable control” shall not include international currency fluctuations or revaluations.
- Not Employing Child Or Forced Labor. You will not employ children or forced labor in performing your obligations under this Order.
- Supplier Diversity (US Suppliers Only). It is Sensia’s policy that the following businesses should have the maximum opportunity to participate in the performance of contracts. As such, Seller agrees to use commercially reasonable efforts, to partner with: 1) Minority Business Enterprises (MBEs): African American, Hispanic American, Native American, Asia Pacific American, and Asian Indian American, 2) Small Business Enterprises (SBEs): Small Disadvantaged Business; HUBZone Business; Veteran Owned Business; and Service Disabled Business, 3) Female Business Enterprises (FBEs) and Lesbian, Gay, Bisexual, or Transgender Business Enterprises (LGBTEs), and provide the diverse vendor commercial opportunities in an amount equal to at least 10% of Sensia’s annual purchases under this Agreement. If Seller is such a business, upon request, it will submit to Sensia a certification as required by the National Minority Supplier Development Council (NMSDC), the Small Business Administration (SBA), the Women’s Business Enterprise Council (WBENC), the National Gay and Lesbian Chamber of Commerce (NGLCC), or similar state or federal governmental agencies. Upon request, Seller will also report to Sensia the dollar amounts paid by Seller to those diverse vendors for goods and services used in the performance of this Agreement, or other reasonable information requested by Sensia regarding those businesses.
- Export Compliance. You acknowledge your obligation to control access to technical data and equipment under applicable worldwide export laws and regulations and agree to adhere to such laws and regulations and conditions of any licenses issued in connection with any technical data or equipment received under this Order. You are responsible for obtaining required export licenses or other approvals from the government of the country of origin. You will inform us in advance if any Product is or contains any technical data or parts that is controlled or restricted for export by any government agency. You represent and warrant that you are not designated on, or associated with, any party designated on any government restricted parties list, including without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List and Entity List or Unverified List, the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List, the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List and Nonproliferation Sanctions list, the United Nations Security Council Sanctions list, the Australia Consolidated list, the Canadian Restricted Entities list, the EU Financial Sanctions and UN Sanctioned Countries lists, and the World Bank List of Debarred Firms..
- Certificate of Origin/Supplier Declaration. You must provide a Certificate of Origin/Supplier's Declaration, and to the extent applicable, a Free Trade Certificate for each Product delivered under this Order at the time this Order is executed. Thereafter you must provide a Certificate of Origin/Supplier’s Declaration, and to the extent applicable, a Free Trade Certificate on an annual basis and must notify us immediately if the Country of Origin changes. This requirement is a material part of your obligations and your failure to comply is a basis for withholding payment or terminating this Order. All materials and products delivered to us must be in compliance with RoHS, REACH and conflicts minerals disclosure requirements and any such other regulatory requirements imposed on us in which our compliance is dependent upon extracting data and information from our suppliers and you agree to provide us certificates of compliance with RoHS and REACH and other regulatory requirements immediately upon our request. Upon our request, you also agree to provide us a full disclosure of all material ingredients that are contained in the products or parts that are sold to us by you, which includes both the type and quantity of such materials by part or product.
- Import Compliance. The World Customs Organization has established a worldwide framework of standards for international cargo security programs. We participate in several of these programs such as the Customs Trade Partnership Against Terrorism (CTPAT) and the Authorized Economic Operator program (AEO). As a result, you agree to provide information and assistance to us to support our participation in these programs including information about your participation in equivalent programs, and confirmation via certification and/or completion of a security questionnaire that your processes meet international cargo security criteria. You will comply with any such U.S. laws and regulations governing import of the Products including providing data and documentation needed to complete accurate and timely customs entry. The parties agree to provide each other information, support documents, and assistance as may reasonably be required by a party in connection with securing authorizations or licenses for import or return of Products.
- Resolving Disputes. The parties will attempt in good faith to promptly resolve any dispute arising under this Order by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties will further attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction. These procedures are the exclusive procedures for the resolution of all disputes between the parties.
- Assigning This Order. You will not assign any of your rights or obligations under this Order without our written approval.
- Entire Agreement. This Order is the entire agreement between the parties with respect to the Products, and no prior discussion, negotiation, understanding, agreement, acknowledgement, invoice, purchase order, conduct or industry practice will affect it. Any changes to this Order must be in a written document signed by both parties. We may modify these pre-printed terms elsewhere in this Order, and if we do, those terms will govern.
- Not Waiving Rights. Neither party waives any rights under this Order by delaying or failing to exercise them.
- Governing Law. The laws applying to contracts made and fully performed in the State or Province shown in our address on the face of this Order, including provisions of the Uniform Commercial Code but specifically excluding the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, will govern this Order.
- Language of this Order. We both agree to this Order and any related documents being in English. Les parties reconnaissent avoir exigé la rédaction en anglais du Contrat. In the event of a conflict between the English and other language versions, the English version will prevail.
- Survival. Completion or cancellation of this Order will not affect any obligations which expressly survive or accrued before the Order’s completion or cancellation.
- Supplier Code of Conduct. It is our policy that you will comply with the Supplier Code of Conduct published on www.sensiaglobal.com.