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Terms and Conditions
Terms and Conditions of Purchase by Putzmeister America, Inc. Issued Sept 2015
1. CONTROLLING TERMS
These Terms and Conditions (“Terms”) apply to any purchase order or contract (a “Purchase Order”) to which Putzmeister America, Inc. (“Buyer”) is a party which specifically references or incorporates these Terms, including as to any limited extent (e.g. as to particular sections). The other party to the Purchase Order is the “Seller”. A purchase order issued by Buyer to purchase goods described on the Purchase Order is not a confirmation or acceptance of any offer or proposal to sell goods. Any acceptance by Buyer of any offer by a Seller is expressly conditioned on Seller’s agreement to comply with these Terms and Conditions. Buyer expressly objects to any additional or different terms delivered by Seller in any quotation, acknowledgement, invoice or other form of communication previously or hereafter provided by Seller to Buyer. Any such additional or different terms issued or provided by Seller will have no force or effect and are expressly rejected by Buyer.
2. CANCELLATIONS AND CHANGES.
Buyer may cancel or modify a Purchase Order, or change the delivery destination for goods upon written notice to Seller at any time before the scheduled delivery or completion date, as applicable, at no cost to Buyer.
3. INVOICING; PAYMENT TERMS; TAXES
Upon delivery of the goods subject to the Purchase Order, Seller will issue an invoice for the goods to Buyer. The invoice shall contain a line item for price, taxes and shipping costs as applicable. Unless otherwise agreed in writing by the Parties, Buyer shall pay Seller for the Goods within sixty (60) days of the date of the invoice. Buyer may withhold, deduct or set-off all or a portion of a payment of the invoice for any breach by Seller of these Terms.
Unless otherwise provided in this Purchase Order, Seller shall pay all applicable taxes, charges, value added, tariffs, customs duties, use or other similar taxes, and charges, payable to any governmental authority (“Taxes”). Seller agrees to include a line item for all Taxes payable by Buyer on each invoice.
4. SHIPMENT AND DELIVERY.
The goods sold to Buyer pursuant to these Terms shall be shipped according to the written terms of shipment stated on a Purchase Order.
Seller will ship and deliver the goods adequately packaged for shipment, preservation during shipment, and storage, including all documentation required for use, maintenance and upkeep. , Seller is not responsible to pay for any costs of packaging, shipping, crating or related costs unless specified on a Purchase Order.
Seller must include the Purchase Order number on all correspondence, shipping documents, packing sheets, bills of lading, air bills, and invoices.
Seller agrees to inspect the goods prior to shipment to ensure the goods meet the specifications set forth in the Purchase Order and comply with the Warranty on goods stated herein.
5. TIME IS OF THE ESSENCE.
Time is of the essence for the delivery of goods ordered pursuant to this Purchase Order. Seller agrees to provide Buyer with prompt written notice if there will be a shipment delay or if Seller is unable to comply with the delivery date stated in the Purchase Order. If deliveries are not made at the time specified in the Purchase Order, such failure constitutes a material breach of the Purchase Order and Buyer reserves the right to cancel the Purchase Order without further obligation to Buyer.
6. RISK OF LOSS.
Unless otherwise provided in a Purchase Order, title and risk of loss or damage to the goods will pass to Buyer upon physical delivery to Buyer at the delivery location identified on the Purchase Order. Seller will not retain any security interest in the goods and will deliver the goods free and clear of any liens and encumbrances. Buyer may return or reject shipments of goods which are nonconforming, damaged, or late at Seller’s sole expense and Seller shall continue to bear the risk of loss.
7. OWNERSHIP OF SPECIFICATIONS; CONFIDENTIALITY.
Buyer shall at all times own and retain title to all specifications, drawings, prototypes and other documents furnished by Buyer to Seller hereunder. Seller shall hold the specifications, drawings, prototypes and other documents in confidence and use the same only to the extent necessary for execution of this Purchase Order and shall, upon Buyer’s request, promptly return to Buyer all copies of the same.
Any specifications, drawings, prototypes or other documents which Buyer furnishes to Seller hereunder shall be confidential and may also be subject to a separate confidentiality agreement between Buyer and Seller.
Seller warrants that any goods delivered to Buyer pursuant to these Terms shall: (a) be made from new and first quality material, (b) be free from defects in materials, workmanship and design (if designed by Seller or at its direction); (c) comply with any specifications, drawings, prototypes or other documents provided to Seller by Buyer; (d) be fit for the purpose for which purchased if the purpose is identified to Seller, (e) be merchantable; and (f) be free and clear of all claims, liens, security interests and encumbrances. (collectively “Warranty”).
Seller also assigns to Buyer any and all warranties received by Seller from Seller's suppliers with respect to the goods, and Seller agrees to enforce such warranties on Buyer's behalf if requested to do so by Buyer.
These express warranties shall survive any inspection by, delivery to, acceptance by, and payment by (in each case) Buyer.
9. REMEDIES FOR BREACH OF WARRANTY.
If Buyer concludes that any of the goods fail to conform to the Warranty, in addition to any other rights it may have at law or in equity, Buyer has the right to do any one or more of the following: (i) return the goods and receive a replacement at Seller’s expense; (ii) return the goods to Seller at Seller’s expense and obtain a refund of the purchase price; (iii) promptly repair the goods at Seller’s expense, (iv) pursue any other remedy available at law or in equity, including, but not limited to, the right to obtain actual, incidental or consequential damages as a result of a breach of the Warranty, including but not limited to costs incurred by Buyer for inspecting, repairing or replacing such goods, resulting from production interruptions, resulting from a recall or resulting from Claims for personal injury or property damage resulting from the goods. In all cases, Buyer shall be reimbursed by Seller for its expenses in returning goods which do not comply with the Warranty Seller assumes all risk of loss or damage in transit with regard to goods returned by Seller.
In the event Seller issues a recall of the goods, Seller will be responsible to pay all damages and out-of-pocket expenses incurred by Buyer as a result of the recall, including but not limited to costs of notifying Buyer’s customers, return of goods, refunds, lost profits, and other damages incurred by Buyer.
11. SELLER’S REPRESENTATIONS. Seller represents to Buyer that:
- a. Seller holds title to the goods and any associated software and transfers to Buyer that title and all interest in and to the goods and any associated software, free and clear of any claims, liens, security interests and encumbrances;
- b. The goods do not and will not infringe or violate any intellectual property rights of any third party;
- c. There are no pending or threatened lawsuits, demands or claims related to the goods which are the subject matter of this Agreement, including, but not limited to, claims for negligence, product liability, strict liability or intellectual property infringement;
- d. The manufacture, sale, distribution and use of the goods comply with all applicable international, federal, state and local laws, rules, regulations and ordinances;
- e. None of the goods contain any Conflict Minerals as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. (“Conflict Minerals Laws”); and
- f. The materials incorporated into the goods comply with all laws regarding or related to human trafficking and slavery of the countries in which the Seller is doing business or will do business during the term of the Purchase Order and while the goods are being procured, assembled, manufactured or delivered to Buyer.
Seller agrees to indemnify, defend and hold harmless Buyer as well as its parents, subsidiaries, affiliates, customers, officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against all claims, allegations, lawsuits, losses, damages, verdicts, settlements, costs, penalties, expenses and attorneys’ fees (“Claims”) brought by a third party against any Indemnified Party arising out of or related to: (i) any breach of or inaccuracy in the Warranty and any inaccuracy or breach of any of Seller’s representations or agreements herein; (ii) personal injury or property damage caused by or arising on account of the goods, including but not limited to claims for negligence, strict liability or products liability; (iii) infringement of any patent, copyright, trademark, trade secret or other types of intellectual property as to the goods (unless Buyer designed the goods); (iv) violations of Seller’s obligations to protect confidential information; or (v) Seller’s violation of any Applicable Laws (as defined below).
From the date of the Purchase Order and for a period of three (3) years following the date of delivery of the goods, Seller shall obtain and maintain in place the following insurance coverage: (i) worker’s compensation and employer liability insurance within statutory requirements; (ii) broad form commercial general liability insurance, including premises and operations, products and completed operations, blanket contractual liability, and personal and advertising injury with minimum coverage of $2,000,000 per occurrence; and (iii) umbrella insurance coverage with a minimum coverage of $10,000,000.
Seller agrees that it is responsible for any applicable self-insured retention or deductible related to any Claim under an insurance policy subject to these Terms. Upon request, Seller shall provide Buyer with a certificate of insurance issued by an authorized representative of Seller’s insurance company, naming Buyer as an “Additional Insured” under each policy and providing a waiver of subrogation in favor of Buyer.
14. COMPLIANCE WITH LAWS. Seller has complied and will comply with all applicable international, federal, state and local laws, orders, rules and regulations of any governmental authorities which regulate, affect or relate to the manufacture, sale, packaging, delivery or distribution of the goods or the performance of its obligations hereunder, including, but not limited to (the foregoing, including the following, being collectively the “Applicable Laws”):
- a. Export Laws. Seller agrees to obtain all necessary licenses, permits or other Approvals as may be required to export the goods from their country of manufacture to the delivery destination, and will comply with all applicable international or national export, import or re?export laws, rules and regulations which cover the Goods.
- b. FCPA. The Foreign Corrupt Practices Act, 15 U.S.C. § 78 et seq. (the “FCPA”), the UK Bribery Act of 2010 and all comparable laws and regulations of Seller’s country and all other applicable commercial and public anti-bribery laws.
- c. Employment Laws. All applicable laws regarding minimum wage, living conditions, overtime, working conditions, and labor and employment including, but not limited to, the Occupational Safety and Health Act of 1970, as amended. Seller will not use any child labor or prison inmates in manufacturing, selling, packaging, delivery or distribution of the goods.
- d. Environmental Laws. All applicable environmental laws.
- e. Conflict Minerals. All Conflict Minerals laws and regulations. In addition, Seller will provide Buyer with assistance and cooperation with a country-of-origin inquiry for any minerals used in the Products purchased by Buyer, and provide information and documentation requested by Buyer or any third party hired by Buyer to assist with compliance with the Conflict Minerals Laws.
f. No Human Trafficking. The materials incorporated into the goods comply with all laws regarding or related to human trafficking and slavery of the countries in which the Seller is doing business or will do business in fulfilling any Purchase Order.
In addition, Seller shall be responsible for securing and maintaining at its cost any governmental or regulatory approvals necessary in order to manufacture, sell, deliver, package or distribute the goods.
Either party may terminate its obligations under a Purchase Order (a) at any time if the other party has materially breached a Purchase Order (including without limitation breach of any Warranty), but only after providing written notice of the alleged breach and providing the other party a thirty (30) day opportunity to cure the breach, and the breach is not fully cured within that time period or (b) upon a party’s discovery of a material misrepresentation by the other party.
In addition, either party may terminate a Purchase Order upon the insolvency, receivership or institution of bankruptcy proceedings by or against the other party or upon such other party’s dissolution or ceasing to do business.
In any case, however, termination shall not affect any rights arising prior to the date of termination.
Neither party shall assign, transfer or otherwise dispose of its rights under a Purchase Order in whole or in part, without the prior written consent of the other party. Any purported assignment or transfer in violation of this provision shall be deemed null and void.
If any provision of a Purchase Order shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use commercially reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.
18. DISPUTE RESOLUTION.
In the event that a dispute arises between Seller and Buyer arising out of these Terms, the parties shall meet and negotiate in good faith to attempt to resolve the dispute.
In the event the dispute is not resolved within thirty (30) days of the date one party notified the other party in writing of the dispute, the parties agree to submit the dispute to mediation with the Judicial Arbitration and Mediation Service (“JAMS”), or its successor, for mediation to take place in Milwaukee, Wisconsin with each party to pay its own legal fees and each party to equally share the mediation costs. The parties agree that JAMS will appoint a mediator who is a licensed attorney and has substantial experience with resolving disputes regarding the sales of goods and the Uniform Commercial Code, but whether the appointed mediator has these qualities is within JAMS’ discretion.
If the parties are unable to resolve a dispute through mediation and the mediator has declared an impasse in writing, any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Milwaukee, Wisconsin before one arbitrator.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator must be a licensed attorney with substantial experience with resolving disputes regarding the sales of goods and the Uniform Commercial Code, but whether the appointed arbitrator has these qualities is within JAMS’ discretion. Judgment on the arbitration award may be entered in any court having jurisdiction. This section shall not preclude or delay the parties from seeking provisional remedies from a court of appropriate jurisdiction.
19. GOVERNING LAW.
This Agreement shall be construed and governed according to the internal laws of Wisconsin without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Purchase Order.
20. ENGLISH LANGUAGE.
These Terms were written in English and should be interpreted using the English language. Any notices required under these Terms shall be provided in the English language.
21. NO THIRD PARTY BENEFICIARIES.
These Terms do not confer any benefits on any third party, and no third party may rely on any of these terms.
A Purchase Order may only be amended by written change orders signed by Buyer. Delivery of the goods to, or pursuant to the direction of, Buyer shall constitute acknowledgement and acceptance of these Terms.
These Terms and Conditions supersede and replace any previously issued Terms and Conditions