These TransCore Purchase Order Standard Terms and Conditions, and the Purchase Order (“Order”) to which these terms are incorporated, are the complete terms of the Order between the TransCore affiliate (“Buyer”) and the Seller. In the event of conflict between these terms and conditions and the terms expressly agreed to in the Order, the terms in the Order shall prevail. This Order issubject to the terms and conditions of any applicable Prime Contract. In the event of any conflict with the provisions hereof, the Order terms shall control.
(a) “Buyer” means the TransCore entity identified in the Order.
(b) “Seller” means the person, firm, or company to whom the Order is addressed.
(c) “Order” means the purchase order document issued by Buyer to Seller specifying the Materials to be obtained, incorporating by reference any exhibits, specifications, drawings, or documents otherwise provided by Buyer to Seller, but excluding any terms contained in any order acceptance or confirmation provided by Seller.
(d) “Materials” means all the products and/or services to be supplied by Seller under the Order.
(e) “Prime Contract” means the contract between Buyer and Buyer’s customer under which this Order is issued, if applicable.
Seller shall be deemed to have accepted these terms and conditions by commencement of performance called for in the Order, by delivery of the Materials to Buyer, by written acceptance or confirmation of the Order, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or conflicting from those stated herein. Buyer hereby expressly objects to and rejects any such additional or conflicting provisions, and none of such provisions shall be deemed to be a part of this Order unless specifically agreed in writing by Buyer.
TIME IS OF THE ESSENCE FOR THIS ORDER. The date specified for delivery is the required delivery date at Buyer’s ship to location identified in the Order (FCA Destination). Seller shall bear the risk of loss of, or damage to, the Materials covered by this Order until delivered to the location specified in the Order and accepted by Buyer. Unless otherwise noted, Buyer reserves the right to refuse any Materials and to cancel any part of the Order if Seller fails to deliver any part of the Order in accordance with the terms specified herein. Upon rejection or revocation of acceptance of any Materials, Seller promptly shall replace or correct, at Buyer’s option, any unsatisfactory units at Seller’s expense, including all shipping costs. If Seller’s deliveries will not meet agreed to schedules, Buyer may require Seller to expedite delivery, and any difference in cost caused by such change shall be paid by Seller. Such right shall be in addition to any other rights and remedies of Buyer. Acceptance of any part of the Order shall not bind Buyer to accept future part(s) of the Order nor deprive Buyer of the right to return Materials already accepted. Acceptance shall not be deemed to be a waiver of Buyer’s right to cancel or return all or any part of the Materials due to: (i) nonconformance of the Order; (ii) defects latent or patent, or (iii) breach of warranty. Acceptance shall not be deemed to be a waiver of Buyer’s right to make any claim for damages, including but not limited to manufacturing cost, loss of profits, injury to reputation, or other special, consequential and incidental damages. Delivery shall not be deemed to be complete until Materials have been received and accepted by Buyer.
The Materials purchased by this Order must be suitably packed and prepared for shipment to secure the lowest transportation rates or appropriately packed to comply with any applicable law or regulation and any specific transportation specifications of Buyer and carrier. Buyer has the right to reject Materials delivered by Seller if packaging or identification do not meet requirements stated in the Order. Each box or package will include a packing slip showing the Order number, item number, quantity, and a description of the Materials. In the event no Packing List accompanies any shipment, the count, weight, or other measure of Buyer shall be final and conclusive. Buyer shall not be obligated to accept any shipments in excess of the ordered quantity. Any excess or advance shipments may be returned to Seller at Seller’s expense.
If any Materials involve operations by Seller on the premises of Buyer, its affiliates, customers, or end users, Seller will conduct such operations to minimize interference with operations at the site, will comply and cause its personnel, contractors, officers, representatives, and agents (“Representatives”) to comply with all applicable workplace procedures and health, safety and environmental requirements, and will take all necessary precautions to ensure that all work is carried out in a safe and proper manner so as to prevent injury to persons or property. Seller will be responsible for the acts and omissions of its Representatives and for any injury to persons or property that occurs during the performance of work or services for Buyer.
(a) Prices are (i) not subject to increase, (ii) no higher than Seller’s current price to any other customer for the same quality and quantity of such Materials, (iii) all inclusive of all applicable installation, testing, debugging, warranty charges, license or use fees, and any other cost of every kind and description associated with Seller’s work, and all applicable federal, state, and local taxes and duties.
Invoices shall contain the Order number, item number, description of materials, quantities, unit prices and extended totals. Invoices submitted hereunder will be paid by Electronic Funds Transfer (EFT) and after receipt of Seller’s proper invoices for Materials delivered and accepted, less any deductions provided for in this Order, including adjustments due to shortages, late delivery, rejections, or other failure to comply with this Order. Unless otherwise stated on the face of the Order, payment terms are net 60 days from receipt of invoice.
Seller represents and warrants that all Materials provided hereunder (i) will be new, unless otherwise specified, and free from defects in material and workmanship; (ii) will conform to applicable specifications, drawings, and standards of quality and performance, and that all items will be free from defects in design and suitable for their intended purpose; (iii) are fit and safe for consumer use, if so intended; (iv) that all services performed pursuant hereto will be free from defects in material and workmanship and (v) will be performed in accordance with the specifications and instructions of Buyer, provided that Seller retain discretion and control with respect to the manner and means of performing such services and shall at all times remain an independent contractor. Seller undertakes free of charge to repair, replace, or refund all defects caused by faults in construction, materials, or production, during a period of (i) twelve months from the date of final acceptance of the Order or (ii) the period required by Buyer’s customer, whichever is greater. If the Materials are not suitable for the intended purpose for a period due to Seller’s default, the warranty period shall be prolonged for a period corresponding to the time it has not been possible to use the Materials for their intended purpose. Materials which are replaced/repaired by the above warranty provisions shall have a renewed warranty period equal to the original warranty period. Seller undertakes under the foregoing warranty that the Materials shall at Seller’s cost be rectified to comply with the Order or replaced by new Materials as soon as possible and no later than fourteen (14) days, or any other duration agreed by Buyer, after receipt of notice from Buyer. All the representations and warranties of Seller together with its service warranties and guarantees, if any, shall run to Buyer and Buyer’s customers. The foregoing warranties shall survive any delivery, inspection, acceptance, or payment by Buyer.
Buyer shall have the right to inspect and test the Materials at any reasonable time and place as determined by Buyer. Buyer may refuse or reject any of the Materials that, in Buyer’s sole discretion, are non-conforming. Buyer assumes no contractual obligation to perform any inspection or test. Materials rejected shall be returned to the Seller at Seller’s expense unless other arrangements are agreed between the Buyer and Seller. The fact that Buyer failed to inspect or test any Materials shall not affect any of the Buyer’s rights. If Materials arrive damaged, the Buyer will decide to accept or reject the delivery after inspection. If Materials are rejected, the Seller must bear the cost of Materials returned, additional handling or any storage or cancellation fees and all related costs including, but not limited to, replacement of the rejected items. For Materials received and declared rejected by Buyer, Buyer may, at its sole discretion, elect to accept repair instead of replacement. Any such associated costs shall be borne by Seller. All rights and remedies of the Buyer hereunder shall be in addition to any other remedies provided by law.
(a) Buyer may, by written notice to Seller at any time before complete delivery of this Order, make changes within the general scope of this Order in any one or more of the following: (a) drawings, designs or specifications; (b) quantity; (c) delivery; (d) method of shipment or routing; (e) schedule for delivery; or (f) the amount of Buyer furnished property. Buyer may direct Seller to suspend, in whole or in part, delivery of goods or performance of services for such period of time as may be determined by Buyer to be reasonable. If any such change or suspension causes a material change in the cost of this Order, or the time required for the performance of work under this Order, an equitable adjustment shall be made in the Order price and/or delivery schedule if Seller has notified Buyer in writing of any claim for such adjustment within five (5) days from the date of notice of the change from Buyer. No adjustment or any other modification of the terms of this Order will be allowed unless authorized by Buyer in writing. Seller shall proceed with the Order as changed without interruption and without awaiting settlement of any such claim.
(b) Without prior written consent of the Buyer, Seller shall not (i) change this Order; (ii) make any changes in the design of goods to be furnished by Seller under this Order, or (iii) ship non-conforming Materials. Any Materials received that do not conform to this Order may be rejected in Buyer’s sole discretion and any cost or damages resulting from this non-conformance and rejection shall be paid by Seller.
Any damages for delay which were caused by Seller including, but not limited to, any liquidated damages, fees, or penalties assessed against Buyer, shall be assessed and/or deducted by Buyer from the Seller Price for said efforts as liquidated damages and not as a penalty. The assessment of liquidated damages by Buyer against Seller is not an exclusive remedy and shall not preclude Buyer from exercising any other rights or remedies available to Buyer.
(a) Seller shall not disclose information concerning this Order to any third party, unless authorized in writing by Buyer prior to such disclosure, or such disclosure is required by law, subpoena, or other court order. Seller shall not make news releases, publicize, or issue advertising pertaining to the Order or TransCore’s customer, without first obtaining the written approval of Buyer. The restrictions of this Section shall continue in effect upon completion or termination of this Order.
(b) Supplier shall safeguard and keep confidential any and all information relating to Buyer obtained by it or provided to it by Buyer in connection with this Order and shall use such information only for the purposes of carrying out its obligations under this Agreement.
This Order shall not be assigned, transferred or subcontracted nor shall Seller have the right to assign any of its rights or obligations hereunder to a third party without the prior written consent of Buyer. Any purported assignment or attempt to assign, transfer orsubcontract without the prior written consent of Buyer shall be void and without force or effect. Any assignment, transfer, or subcontract shall be subject to all applicable terms of this Order.
Seller hereby waives and releases all rights of mechanic’s lien and similar rights for payment for services, labor, equipment, or materials furnished by Seller under this Order. If, within five (5) days after receipt of notice from Buyer, Seller fails to release and discharge any lien or threatened lien, Buyer may discharge, bond against, or release the claim of lien or otherwise deal with the lien claimant. Seller shall pay Buyer (or, alternatively, Buyer shall have the right to offset against any amounts owing to Seller) all costs and expenses incurred in so doing, including reasonable attorneys’ fees incurred by Buyer.
(a) Seller shall be deemed to be in default hereunder if it violates any of the terms hereof or fails timely to perform any of its covenants, duties or obligations hereunder, or if it performs or fails to perform any other act, whether pursuant to this Order or otherwise, which gives Buyer reasonable grounds to feel insecure with respect to Seller’s future performance hereunder. Upon default by Seller hereunder, Buyer may exercise any of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or under applicable law: (i) Reject or revoke acceptance of any of the Materials, whether or not such Materials are defective and whether or not the condition of delivery thereof otherwise relates to, pertains to, concerns or gives rise to such event of default; (ii) Terminate this Order without any obligation with respect to Materials not yet delivered to Buyer at the time of such termination, or (iii) procure or otherwise obtain, upon such terms and in such manner as Buyer may deem appropriate, Materials similar to those terminated and Buyer shall be liable for any excess costs of such similar Materials. In no event shall Buyer be subject to payment of any restocking fees, termination fees, or any indirect, incidental, or consequential damages. Buyer’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or at any other time.
(b) Buyer may at any time and for any reason terminate this Order for its convenience. Any such termination shall be effected by delivery to the Seller of a notice of termination specifying the extent to which the Order is terminated and the date upon which such termination becomes effective. Upon receipt of notice of cancellation, Seller shall immediately stop work on the undelivered portion of the Order and make no further commitments for materials or services to complete such affected Order. In such event, Buyer shall have all rights and obligations accruing both at law and in equity, including Buyer’s rights to title and possession of any Materials paid for prior to termination. Under no circumstances will Buyer be liable for prospective profits or other indirect, incidental, or consequential damages, including but not limited to lost profits, loss of income or revenue.
(c) If Buyer’s customer terminates the Prime Contract or any portion thereof, Buyer may terminate this Order or any portion thereof without penalty to Buyer.
(d) After acceptance of this Order, Seller will have no right to terminate or cancel any part of the Order without Buyer’s written permission.
When Seller is providing services under this Order, Seller will maintain at all times workers’ compensation, comprehensive general liability (including products/ completed operations and contractual liability), automobile, public liability, professional errors and omissions (if applicable), property damage and other appropriate insurance in accordance with good industry practice and in amounts sufficient to cover its activities and obligations under this Order (in amounts not less than $1,000,000 (or higher amounts as required by law) unless lower levels are agreed to by Buyer) with carriers acceptable to Buyer and rated by A.M. Best at or above A-. Seller will name Buyer as an additional insured. All such insurance will be primary coverage and Seller waives, and will cause its insurers to waive, all rights of subrogation against Buyer. Seller shall provide certificates of insurance showing such coverage prior to performing any work at Buyer’s premises or promptly upon Buyer’s request. All certificates of insurance will provide for 30 days’ notice to Buyer if the described policies are cancelled or materially modified before the expiration date stated on the certificate.
(a) Seller shall indemnify and hold harmless Buyer, its officers, agents, employees, and Buyer’s customers (“Indemnified Parties”), against all loss, cost, liability, and claims arising directly or indirectly from Seller’s performance hereunder. The foregoing indemnity shall include, without limitation, attorneys’ fees and expenses, injury to or death of a person, and actual or alleged patent, trademark, or copyright infringement. In case the goods or services or use thereof are held to constitute infringement, Seller shall at its expense and at its option either procure for Buyer the right to continue the use of such goods or services; or in a manner acceptable to Buyer make replacement or modification to avoid infringement. If requested by Buyer, Seller shall defend the Indemnified Parties.
(b) Buyer’s total liability for all obligations, claims, or damages arising out of or relating to this Order, howsoever caused, and regardless of the legal theory asserted, including breach of contract, warranty, tort, strict liability, any indemnification obligation, and any statutory liability or otherwise, shall not, in the aggregate, exceed the total amount due to Seller under this Order. Buyer shall not, in any event, be liable for any special damages, including indirect or consequential damages, loss of profits, loss of sales, loss of revenue, loss of opportunity, diminution of value, or punitive damages. Any claim by Seller against Buyer relating to this Order must be made in writing to Buyer within one (1) year from the date that such claim arose.
If Buyer furnishes any material to Seller as part of this Order (“Buyer Property”), Seller agrees: (i) all Buyer Property shall remain the sole property of Buyer; (ii) not to substitute other material in place of Buyer’s Property without Buyer’s prior written consent; (iii) all Buyer Property, and all products, parts, or other items manufactured, developed, or produced utilizing Buyer Property, will be supplied and used solely for the benefit of Buyer and not for the benefit of Seller or third parties, and (iv) to protect and safe guard Buyer Property against loss, damage, or unauthorized use or disclosure. Risk of loss with respect to all Buyer Property shall be with Seller.
(a) If any experimental, developmental or research work is called for or required hereunder, Seller agrees to and hereby does grant to Buyer an irrevocable, non‑exclusive, fully transferable, royalty‑free license to make, have made, use and sell any invention, improvement or discovery (whether or not patentable) that Seller conceives or first actually reduces to practice in the performance of this Order.
(b) Seller agrees to and hereby does grants to Buyer (i) an irrevocable, non‑exclusive, fully transferable, royalty‑free license to reproduce, translate, publish, use and dispose of; and to authorize others to do so, any copyrighted or copyrightable material ordered as articles or incorporated in or supplied as a supplement with, any articles; and (ii) the right to reproduce, use and disclose for any purpose all or any part of the reports, drawings, blueprint, data and technical information delivered or specified to be delivered by Seller to Buyer under this Order.
Seller agrees to comply with the applicable provisions of any federal, state or local law or ordinance and all orders, rules and regulations issued there under.
If the Materials covered by an Order are a result of a contract with the U.S. Government, Seller agrees that the Order and Seller’s provision of Materials will be subject to the provisions of the Renegotiation Act of 1951 and regulations enacted thereunder, as applicable, including all provisions and regulations with respect to elimination of excessive profits through negotiation, and Seller will ensure compliance with all applicable Government laws and regulations relating to non-discriminatory hiring, wage rates and other subjects pertinent to Seller’s Materials, and all terms and regulations associated with such acts. To the extent applicable, Company incorporates by reference 29 CFR Part 471, Appendix A to Subpart A, as well as any E-Verify obligations described in FAR 52.222- 54. Seller certifies that it maintains no segregated employee facilities as provided in 41 C.F.R. Section 60-1.8, and will comply with all applicable requirements of 38 U.S. Code 4212, Executive Orders 11246, 11375, 11758 and 12086, amended and other applicable laws and Executive Orders relating to equal opportunity for employment on government contracts. Seller shall provide evidence of the foregoing compliance upon request.
TransCore is committed to being Democratic Republic of the Congo (“DRC”) conflict free in the procurement of certain materials used in its products. TransCore has reporting obligations to disclose whether products it manufactures contain certain “conflict minerals” (cassiterite, wolframite, columbite-tantalite, gold or derivatives) originating from the DRC or an adjoining country. Supplier agrees to adopt and implement policies, due diligence frameworks, and management systems to ensure that minerals used in any goods supplied to Buyer are conflict-free. Additionally, Supplier agrees to timely provide, upon TransCore’s request and in a requested format, certain data concerning its supply chain that may be needed for applicable reporting obligations.
(a) Seller agrees to comply with all applicable export and re-export control laws and regulations, including but not limited to United States Export Administration Regulations (EAR) administered by the Bureau of Industry and Security, U.S. Department of Commerce, trade and economic sanctions regulations administered by the Office of Foreign Assets Control (OFAC), U.S. Department of Treasury, the International Traffic in Arms Regulations (ITAR), Arms Control Export Act, and United States Munitions List (USML) administered by Directorate of Defense Trade Controls, Bureau of Political-Military Affairs of the U.S. Department of State, and any other export authorities identified in Supplement 3 to Part 730 of the EAR.
(b) Seller shall accurately identify in writing to Buyer, within thirty (30) calendar days after issuance of this Order those goods, material, equipment, services, and technologies for which an export license or other regulatory approval is required and shall provide accurate export classification and licensing information necessary for supporting export documents, including but not limited to (as applicable) the appropriate Export Control Classification Numbers (ECCN), an indication of the applicability or availability of license exceptions or exemptions, and all pertinent technical data, drawings, brochures, technical expertise, or other relevant information as deemed necessary by Buyer. Seller shall obtain any required license or other regulatory approval required.
Seller shall maintain all records and accounts pertaining to the Order for a period of (i) three (3) years after final payment under this Order (“Record Retention Period”) or (ii) the audit period required by the Prime Contract, whichever is longer. Buyer and/or designated auditors shall have the right to inspect and copy said records and accounts during the course of the Order and during the Record Retention Period.
The validity, construction, scope and performance of this Order shall be governed by the laws of the State of Delaware without regards to its conflict of laws principles.
The failure of Buyer to insist upon strict performance of any of the terms and conditions in this Order or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of the same or to rely on any such terms or conditions at any time thereafter. The invalidity in whole or in part of any term or condition of this Order shall not affect the validity of other parts hereof.
In the event of any controversy, claim, or dispute arising under or relating to this Order(“Dispute”), the parties agree to first negotiate in good faith to reach a mutually agreeable resolution of such Dispute within a reasonable period of time. Pending the resolution of any Dispute arising under this Order, Seller shall proceed diligently with the performance of this Order. If good faith negotiations are unsuccessful, Seller hereby knowingly, voluntarily, and intentionally waives any right it may have to a trial by jury of any Dispute.
Neither Buyer nor Seller shall be liable for failure to perform under this Order if such failure is due to events which are beyond the reasonable control and without the fault or negligence of Buyer or Seller and which intervene after the execution of this Order and impede its performance, provided such failure to perform shall only be excused for the duration of such intervening event and shall be subject to the Buyer’s right to terminate this Order pursuant to clause 15. Examples of such Force Majeure events include but are not limited to: war or act of war, insurrection, riot or civil commotion, or other act of God, or any act of governmental authority (including export restrictions).
The provisions of this order which by their nature are intended to survive the termination, cancellation, completion or expiration of this Order shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration.
The parties hereby agree that this Order, including all documents incorporated herein by reference, shall constitute the entire agreement and understanding between the parties hereto and shall supersede and replace any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof. No amendment or modification of this Order shall be binding upon either party unless it is set forth in a written instrument signed by authorized representatives of both Buyer and Seller.
TransCore, Terms & Conditions dated December 6, 2021
This purchase order and any resulting agreement shall be governed by and interpreted in accordance with the laws of the State of New Mexico and the United States of America. Any litigation arising from this agreement shall be inst. ituted in either the state or federal courts located in New Mexico.
This purchase order and any documents referenced herein, and any documents hereafter agreed to in writing by TransCore, shall constitute the entire agreement between the parties and shall supersede all previous communications, negotiations and representations between the parties regarding the subject matter of the purchase order. Acceptance by supplier is limited to the terms of this purchase order or any other terms hereafter agreed to in writing by TransCore.
Risk of loss and title shall pass to TransCore at the time goods are actually delivered to TransCore or its designee.
Prices and other charges of any kind shall be no higher than those set forth in this purchase order or, if no prices are set forth, no higher than those last quoted in writing, e-mail acceptable, to TransCore prior to this purchase order.
Unless stated in this purchase order, there will be no charge to TransCore for boxing, packing, or storage. Materials will be suitably packed to avoid damage, to secure the lowest transportation cost, and to conform to all legal requirements and the requirements of applicable common carriers. Shipment shall be made in the manner and by the route indicated in purchase order. Additional costs resulting from failure to do so will be charged to supplier.
Delivery shall be made in full quantities ordered and at the time specified in strict accordance with TransCore’s delivery schedule. In the event such schedule cannot be met, TransCore will immediately be notified of the fact and amount of delay by telephone or fax. In the event of delay, TransCore may cancel the order or any part thereof, expedite routing at supplier’s cost, or exercise other legal remedies. Time is of the essence.
Supplier is responsible to inspect and ensure the quality of goods and services, and TransCore has no duty to inspect the same until within a reasonable time after its use of the goods or services. TransCore may reject goods upon inspection. If rejected, goods or services may be held by TransCore or returned to supplier at supplier’s risk and expense without prejudice to TransCore’s other rights or remedies.
TransCore may terminate all or any part of the purchase order at its option by notice to supplier. In such event, TransCore will pay supplier all actual direct costs incurred to date of notice and shall have no other liability. TransCore further may terminate all or any part of the purchase order, upon notice to supplier, for any default or breach by supplier or insolvency of supplier. In such event, TransCore may purchase substitute or similar goods or services and supplier will pay all increased costs that may result, as well as exercise all other legal rights or remedies it may have. Supplier will fulfill any portion of the purchase order which is not terminated.
TransCore will have the right upon written notice to supplier to make changes as to destination, specifications, or other aspects of the purchase order prior to shipment, and to postpone delivery.
Supplier warrants that the goods and services supplied will be of merchantable quality, will conform to any specifications, drawings, or samples specified by TransCore, and will be free of defects under normal use for one year. Non-conforming goods will promptly be repaired or replaced without cost to TransCore.
Supplier will indemnify, defend, and hold TransCore harmless against any claim that goods supplied hereunder infringe any patents or other intellectual property rights of any kind.
The rights and remedies reserved herein are in addition to any other rights or remedies TransCore may have at law or in equity. No waiver or delay by TransCore shall operate to waive or otherwise prejudice any other right or remedy TransCore may have. In any legal action commenced to enforce the terms and conditions herein the prevailing party shall be entitled to recover costs and expenses of such litigation, including without limitation, its attorney’s fees.
TransCore makes every effort to comply with all applicable laws and expects all its suppliers to do the same. This includes health and safety, labor and human resources, environmental, and source and content of materials. To ensure TransCore is compliant with all embargos, sanctions and other import/export laws TransCore performs a comprehensive screen of its customers and business partners routinely.
TransCore recognizes and supports California Transparency in Supply Chains Act of 2010 (SB 657) to eliminate human trafficking and slavery in its supply chain. Routine on site visits/audits will be conducted to ensure compliance. Further, TransCore helps host annual communications with its employees to regularly train them on all applicable laws surrounding its supply chain. All our vendors and business partners are expected to operate within full compliance.