Revision 01, January 20, 2020
These general purchasing terms and conditions (“Terms and Conditions”) shall apply to all purchase orders, order confirmations or other agreements to which they are appended or which otherwise expressly reference these Terms and Conditions (collectively, together with these Terms and Conditions, the “Agreement”), and all products supplied under the Agreement (“Product”).
1. Modification; Conflict
No modification to these Terms and Conditions shall be effective unless made in writing and signed by both parties. Acknowledgement by Supplier on standard forms or in any other fashion which contains terms and conditions differing from those set forth herein shall not indicate any intention or agreement by Bharat Forge Aluminum USA, Inc. (“BF-USA”) to vary, add to, or detract from these Terms and Conditions. No increase in the purchase price shall be effective unless authorized in a supplemental purchase order issued by BF-USA or its authorized agent.
2. Product Purchased from Authorized Reseller
In the event BF-USA purchases any Product from Supplier’s authorized reseller, each such Product shall be treated as if it was purchased under these Terms and Conditions.
3. Delay
BF-USA shall have the right to delay payment to Supplier, without loss of discount, if any, and without breach of any other payment term herein, for the same number of days as delivery by Supplier fails to conform to the terms herein. This clause shall not constitute any waiver of BF-USA’s rights or remedies against Supplier for late delivery.
4. Force Majeure
If performance other than payment for Product by Supplier or BF-USA is prevented or delayed by reason of any cause beyond the control of, and without the fault of, the party affected, and which cannot be overcome by reasonable diligence (collectively, “Force Majeure”), the party affected shall be excused from such performance to the extent that it is necessarily prevented or delayed thereby, during the period of any such cause. However, after ninety (90) consecutive days of such suspension on the part of one party, the other party may terminate the Agreement or the applicable order without liability under these terms and conditions. The party invoking Force Majeure shall send written notice thereof to the other party within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the Force Majeure.
5. Warranty; Indemnity
5.1. Supplier warrants and agrees that all merchandise and equipment furnished hereunder, and the normal use thereof, are and shall be free and clear of infringement of any patent or other intellectual property right of any third party, and that Supplier shall indemnify, hold harmless and, if requested by BF-USA and at Supplier’s expense, defend BF-USA, its affiliates and its and their officers, directors, agents and direct or indirect customers from and against any and all demands, claims, actions, suits or proceedings alleging such infringement and all losses, costs and expenses (including reasonable attorneys’ fees, expert witness fees and litigation costs) related to or arising therefrom.
5.2. Supplier warrants that all Product and services provided hereunder shall conform to the specifications, drawings, samples or other description furnished or published by Supplier, shall be free from defect in materials, workmanship and design, shall be fit for the purposes intended, and shall conform with all applicable laws, governmental standards, rules and regulations. Supplier shall, at its own expense, repair or replace, at BF-USA’s option, any nonconforming or defective Product and reimburse BF-USA for all reasonable costs incurred by BF-USA as the direct result of such nonconforming or defective Product, including customer returns and recalls.
The returns/ rejections will be picked up by the supplier at its own costs.
5.3. Supplier specifically agrees to indemnify and hold harmless BF-USA, its affiliates and its and their officers, directors, agents and direct or indirect customers from and against any and all demands, claims, actions, suits or proceedings and all losses, costs and expenses (including reasonable attorneys’ fees, expert witness fees and litigation costs) for personal injury, death or property damage, or otherwise related to or arising out of any alleged faulty workmanship, nonconformity with specifications, defect or other alleged breach of the warranties set forth in the preceding paragraph.
6. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, ARISING OUT OF OR IN CONNECTION WITH PERFORMANCE OF OBLIGATIONS PROVIDED FOR UNDER THIS AGREEMENT OR FOR TERMINATION OF THIS AGREEMENT AS PROVIDED FOR HEREIN, REGARDLESS OF WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE AND REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER IN TORT, CONTRACT OR OTHERWISE).
7. Supervision
If Supplier is required to have access to BF-USA’s premises, Supplier shall be solely and independently responsible for the direction, supervision and control of Supplier’s employees and for any other persons or firms that Supplier engages to assist in performance. Supplier shall maintain adequate safeguards and use reasonable care to protect BF-USA’s employees and property, and the person and property of others on or near the premises.
8. Insurance
8.1. Supplier shall maintain insurance covering all risks of loss of or damage to real and personal property under the care, custody or control of Supplier, its employees, officers, directors, agents, representatives, and subcontractors. Such insurance shall contain a waiver of subrogation against BF-USA, its employees, officers, directors, agents, representatives and subcontractors. Any failure by Supplier to carry insurance shall not impose any liability on BF-USA for any loss of or damage to such property.
8.2. Supplier shall maintain Commercial General Liability insurance, or any comparable policy that covers the entire scope of products and services provided by Supplier, which shall protect Supplier and BF-USA from all claims of damages for injury to person or persons, including death, and from all claims on account of property damage, caused by Supplier, its employees, officers, directors, agents, representatives, and subcontractors, arising out of performance of, or failure to perform, Supplier’s obligations hereunder. BF-USA shall be named as an additional insured under such Commercial General Liability insurance.
8.3. Supplier shall maintain Workers’ Compensation insurance or state approved self-insurance, and Employers Liability insurance as required by law in each jurisdiction in which Services are performed.
8.4. Where Supplier’s services include care, custody or control of any property of BF-USA, or in the event that any property of BF-USA comes into Supplier’s possession, Supplier further agrees that said property of BF-USA shall be insured by fire and extended coverage policy of a reputable insurance company and shall, upon BF-USA’s request, submit proof of such insurance.
8.5. Supplier shall maintain any other insurance needed to cover its liabilities and obligations under this Agreement.
8.6. All insurance provided by Supplier shall be from a reputable insurance company and shall be primary to and non-contributing with any insurance provided by BF-USA, as respects the liability of Supplier hereunder. For any insurance that is written on a Claims Made rather than an Occurrence based policy form, insurance must continue to be maintained for at least five (5) years after the expiration of the applicable warranty period .
8.7. Prior to the commencement of work, Supplier shall provide BF-USA with proof of insurance coverage upon request. If Supplier subcontracts any portion of the Agreement, it shall direct each subcontractor to maintain insurance of the types and in the amounts set forth herein. Supplier shall be responsible for the consequences of any failure of any subcontractor to maintain such insurance.
8.8. Supplier’s liability shall not be limited to the insurance required under these Terms and Conditions.
9. Business Continuity Plans
Supplier represents that it has in place and will continue to have in place during the term of any applicable warranty period a business continuity plan that demonstrates how Supplier will prevent, mitigate the effects of, and recover from, any accident or event that might threaten the ability of Supplier to produce, ship and/or deliver Product or any related services to BF-USA, including, without limitation, installation, repair and servicing, including accidents or events that might occur within Supplier’s supply chain. Plans are subject to audit by BF-USA or its agents or representatives. Supplier shall cooperate with and provide information to BF-USA to support reasonable inquiries about Supplier’s ability to assure business continuity during any potential accident or event, and shall promptly notify BF-USA of any actual or threatened disruption and the mitigation activities planned or taken.
10. Confidentiality
10.1. For a period of five (5) years following the date of the Agreement, Supplier shall maintain as confidential any and all information received by Supplier in the course of performance of its obligations hereunder relating to the designs, property, equipment, processes or materials owned or used by BF-USA, or any other information provided by BF-USA or its representations to Supplier which is designated (or verbally indicated to be) confidential or could reasonably be understood to be confidential under the circumstances. Supplier shall (a) not disclose any such information to any person, except to its employees and contractors who have a need to know and who are bound by confidentiality obligations substantially similar to those herein and (b) use such information only in performance of its obligations hereunder.
10.2. Supplier’s obligations under the preceding paragraph shall not apply to the extent any such information: (a) is or becomes generally available to the public other than as a result of disclosure by Supplier or its representatives, (b) becomes available to Supplier on a non-confidential basis from a source other than BF-USA, or (c) was known to Supplier on a non-confidential basis prior to its disclosure by BF-USA, as demonstrated by documentary evidence thereof. Supplier may disclose confidential information to the extent required by applicable law or legal process, provided that Supplier provides prompt written notice to BF-USA prior to such disclosure so that BF-USA may seek an appropriate remedy, and that Supplier discloses only such information legally required to be disclosed.
10.3. Unless otherwise expressly provided for in the Agreement, neither party is acquiring any intellectual property of the other party hereunder.
10.4. The parties acknowledge that the actual or threatened breach of this Section 10 would result in immediate and irreparable harm for which there is no adequate remedy at law. Therefore, the parties agree that injunctive relief (or other equitable relief as may be deemed proper by a court of competent jurisdiction) would be an appropriate remedy, without the necessity of posting bond or other security and without the necessity of proving actual damages.
11. Export Control
Each party hereby agrees that it shall not knowingly export, directly or indirectly, any United States source technology or software information acquired from the other party under this Agreement, or any direct product of that technology or software, to any country for which the United States Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining such license or approval, when required by applicable United States Law.
12. Use of Name
Neither party shall make any reference to the other party, its trademarks or trade names in advertising, public announcements, or promotional materials without express written permission from the other party. The fact that BF-USA is a customer of Supplier shall be treated as confidential information and Supplier shall not identify BF-USA as one of its customers unless BF-USA gives its written permission.
13. Severability
If any provision of these Terms and Conditions is held to be unenforceable under then current laws, the enforceability of the remaining provisions shall not be affected thereby, and in lieu of each such unenforceable provision the parties shall negotiate to add a provision similar in terms to such unenforceable provision as may be possible.
14. Waiver of Default
Any failure of either party to require or enforce the strict keeping and performance by either party of any of these Terms and Conditions shall not constitute a waiver by either party of a breach or any such terms or conditions in the future and shall not impair such terms or conditions in any way, or the right of either party at any time to avail itself of such remedies for any such breach of any term or condition. No waiver of any right or remedy hereunder shall be effective unless expressly stated in writing by the waiving party.
15. Independent Contractor
Supplier shall act as an independent contractor and nothing herein shall be construed to make Supplier, or any of its employees, officers, directors or representatives, the agent or employee of BF-USA.
16. Assignment
Neither party may assign the Agreement or any of its rights or obligations thereunder without the prior written consent of the other party, except that such consent shall not be required for any assignment by BF-USA to any of its affiliates or to any third party which acquires all or substantially all of that portion of the assets of BF-USA to which this agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. Any attempted assignment in contravention of this paragraph shall be null and void and of no force or effect.
17. Right to Audit
As BF-USA deems necessary and upon reasonable notice to Supplier, Supplier shall provide BF-USA with access to its facilities, quality procedures, records, employees and regulatory submissions in order to assess Supplier’s performance of its obligations hereunder. Supplier shall maintain complete and accurate records to substantiate Supplier’s charges to BF-USA for a period of six (6) months after completion of the work to which the records relate. Supplier will also provide BF-USA with specific third-party invoices upon request. BF-USA reserves the right to audit at its sole expense and shall have access to such records upon at least two (2) weeks’ notice for purposes of an audit during normal business hours during the performance of the obligations provided hereunder and for six (6) months after completion of the work to which the records relate.
18. Compliance with Laws
Supplier shall comply with all applicable laws, rules and regulations in connection with the performance of its obligations hereunder and the manufacture or distribution of Product, including, but not limited to, applicable labor and environmental protection laws, standards, codes, ordinances, directives and regulations. Failure to so comply shall constitute a breach and give rise to BF-USA’s right to terminate the Agreement or any outstanding order thereunder.
19. Governing Law; Jurisdiction
19.1. This Agreement and any claim or controversy arising out of or relating to rights and obligations of the parties under it will be governed by and construed in accordance with the substantive laws of the State of North Carolina, without regard to its conflicts of laws principles. The provisions of the United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods shall not apply to this Agreement.
19.2. Any action or proceeding arising out of or related to the Agreement shall be brought only in a state court located in Lee County, North Carolina, or in the United States District Court for the Middle District of North Carolina, and the parties hereby consent to such exclusive venue and the jurisdiction of such courts over the subject matter of such proceeding and themselves.