ABC Companies Purchase Order Terms and Conditions

1. General Applicability. "Seller" means the seller or vendor identified in the Purchase Order which incorporates these Purchase Order Terms and Conditions (these "Terms") by reference (together with these Terms, the "Purchase Order"). "Buyer" means ABC Bus, Inc., or to the extent an ABC Companies Affiliate is identified in the "Sold To" section of the Purchase Order, then that entity. Seller accepts and will be bound by the Purchase Order when Seller executes and returns a written acknowledgment of these Terms, or when Seller accepts the Purchase Order, commences work on the goods or services described in the Purchase Order, or delivers to Buyer any of such goods or services, whichever occurs first. Acceptance of each Purchase Order is expressly limited to acceptance of these Terms and any additional terms stated in the Purchase Order as a complete and exclusive statement of terms. Any additional or different terms proposed by Seller in any quotation, offer, confirmation or otherwise are rejected unless Buyer separately consents to such additional or different terms in writing. No change, amendment, or waiver of any provision of any Purchase Order is binding on Buyer unless in writing and signed by Buyer. Seller may not assign any Purchase Order or any of its obligations (including, without limitation, to subcontractors or tier two vendors) under any Purchase Order without the express written consent of Buyer.
2. Shipping and Billing. Seller agrees to: (a) pack, mark and ship all goods in compliance with the requirements of Buyer and all carriers used so that the goods are secure, the goods are easily identified and the lowest transportation cost is obtained; (b) mark each package with Buyer's Purchase Order number, facility, plant, and/or dock number, and where multiple packages comprise a single shipment, consecutively number each package; (c) describe the contents of each shipment on the bill of lading or other receipt and route each shipment pursuant to instructions from Buyer's traffic department; (d) make no charge for handling, packaging, storage, transportation or drayage of goods unless otherwise stated in the Purchase Order; (e) provide with each shipment packing slips showing Buyer's Purchase Order number; and (f) promptly forward the original bill of lading or other shipping receipt to the attention of the traffic manager at Buyer's shipping address, and mail two copies of Seller's separate invoice for each shipment, showing prices and extensions, to the billing address shown on the Purchase Order. Seller further agrees to accept payment by check or, at Buyer's discretion, cash equivalent payment such as electronic transfer of funds. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any liens, encumbrances and claims on the goods or services under the Purchase Order.
3. Delivery. Time is of the essence. Unless otherwise specified in this Purchase Order, title and risk of loss for each item delivered pursuant to this Purchase Order shall pass to Buyer upon delivery to Buyer's facility and delivery shall be F.O.B. Buyer's "ship-to" address. Unless otherwise specified on the face of this Purchase Order, no variation in the quantity is authorized for shipment. Deliveries are to be made in the quantities and at the times specified in the Purchase Order, including any separate schedule furnished by Buyer and referenced on the Purchase Order. Buyer, in its sole discretion, may from time to time change delivery schedules or direct temporary suspension of scheduled shipments, which shall not be grounds for any modification of the price for any goods or services. Seller will notify Buyer as soon as practicable if Seller is unable to ship on the date(s) specified on the Purchase Order or in any delivery schedule. Seller shall, at its expense, ship by express or air shipment or by the most expeditious way if the delivery schedule is endangered. Buyer will not be required to make payment for goods delivered in excess of the quantities specified in Buyer's delivery schedules. Buyer may hold Seller liable for damages caused by untimely delivery.
4. Changes. Buyer may, at any time, pursuant to a written change order, make changes in any one or more of the following: (i) drawings, designs or specifications where the items to be furnished are to be specifically manufactured for the Buyer in accordance herewith, (ii) method of shipment or packing, (iii) place or time of inspection, delivery or acceptance, and (iv) the amount of any Buyer-furnished property. Any difference in price or time for performance resulting from such changes may be equitably adjusted by Buyer after receipt of documentation in such form and detail as Buyer may direct. No claim by Seller for adjustment hereunder shall be allowed unless in writing (setting forth the proposed adjustment amount) and received by Buyer within twenty (20) days from the date notice of any such change is received by Seller.
5. Acceptance of Goods, Inspection. Buyer has the right to reject, refuse or revoke acceptance of goods that do not conform to Buyer's specifications or to Seller's warranties and to return them to Seller at Seller's expense. To the extent Buyer rejects goods as non-conforming, the quantities under the Purchase Order will not be reduced unless Buyer otherwise notifies Seller. Seller will replace all quantities of rejected goods, without a new Purchase Order or schedule from Buyer, unless Buyer directs otherwise in writing. Non-conforming or excess goods will be held by Buyer for disposition in accordance with Seller's instructions at Seller's risk and expense. Seller's failure to provide written instructions within ten (10) days or such shorter period as may be commercially reasonable under the circumstances after notice of non-conformity will entitle Buyer, at its option, to dispose of the goods, without liability to Seller. Payment for non-conforming goods will not constitute acceptance of those goods, nor will it limit or impair Buyer's right to assert any legal or equitable remedy, nor relieve Seller's responsibility for latent defects.
6. Force Majeure. Any delay or failure of either party to perform its obligations hereunder will be excused if and to the extent that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence (other than lockouts, strikes, slowdowns and other labor problems); provided that written notice of such delay (including the anticipated duration of the delay) is given by the affected party to the other party within ten (10) days after the affected party first learns of the delay. During the period of any delay or failure to perform by Seller, Buyer, at its option, may purchase goods from other sources and reduce the Purchase Order by such quantities without liability to Seller, or have Seller provide the goods from other sources in quantities and at times requested by Buyer and at the Purchase Order price. If requested by Buyer, Seller will, within ten (10) days of such request, provide adequate assurances that the delay will not exceed thirty (30) days. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurance that the delay will cease within thirty (30) days, Buyer may immediately cancel the Purchase Order without liability.
7. Warranty. Seller expressly warrants that all goods or services covered by the Purchase Order will conform to the specifications, drawings, samples, or other descriptions furnished or specified to or by Buyer, and will be merchantable and free from defects in materials and workmanship. In addition, Seller acknowledges that Seller knows of Buyer's intended use and expressly warrants that all goods covered by the Purchase Order which have been selected, designed, manufactured, or assembled by Seller, based upon Buyer's stated use, will be fit and sufficient for the particular purposes intended by Buyer. The above warranties are in addition to implied warranties and to any additional warranties given to Buyer by Seller.  In the event of Seller's delivery of defective or nonconforming items or Seller's breach of warranty, Buyer may at its election and in addition to any other rights or remedies it may have at law or equity or under this Purchase Order, recover from Seller any costs of removing such items from property, equipment or products in which such items have been incorporated and any additional costs of reinstallation, reinspection and retesting and (a) return the items at Seller's risk and expense and recover from Seller the price paid therefore and, if elected by Buyer, purchase or manufacture similar items and recover from Seller the costs and expenses thereof, (b) accept or retain the items and equitably reduce their price, or (c) require Seller, at Seller's expense to promptly replace or correct the items and pending redelivery, to repay Buyer any amount Seller's customer paid for such items. If Seller fails to promptly replace or correct such items as directed by Buyer, Buyer may repair them or have them repaired at Seller's expense or purchase or manufacture similar items and recover from Seller the costs and expenses thereof.
8. Ingredients Disclosure and Special Warnings and Instructions. If requested by Buyer, Seller will promptly furnish to Buyer in such form and detail as Buyer may direct: (a) a list of all ingredients in the goods purchased under the Purchase Order and their relative amounts; and (b) information concerning any changes in or additions to such ingredients. Prior to and with the shipment of goods, Seller agrees to furnish to Buyer sufficient warning and notice in writing (including appropriate labels on goods, containers and packing) of any hazardous material which is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, Buyer and their respective employees of how to exercise that measure of care and precaution which will best prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the goods, containers and packing shipped to Buyer.
9. Termination. (a) Buyer may immediately cancel all or any part of the Purchase Order, without liability to Seller, if Seller: (i) repudiates or breaches any of the terms of the Purchase Order, including Seller's warranties; (ii) fails to perform services or deliver goods on time; or (iii) fails to make progress so as to endanger timely performance of the Purchase Order and does not correct such failure within ten (10) days (or such shorter period of time as commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such failure or (iv) becomes insolvent; files a voluntary petition in bankruptcy or an involuntary petition is filed against Seller declaring Seller bankrupt, provided that it is not vacated within sixty (60) days from the filing date; has a receiver or trustee appointed, provided such appointment is not vacated within sixty (60) days from the appointment date; or executes an assignment for the benefit of creditors.
   
   (b) In addition to any other rights of Buyer to cancel or terminate the Purchase Order as provided in the Purchase Order or by law, Buyer may at its option immediately terminate all or any part of the Purchase Order, at any time and for any reason or no reason, by giving written notice to Seller. Upon such termination, Buyer will pay to Seller the following amounts without duplication: (i) the Purchase Order price for all goods or services which have been completed under the Purchase Order and not previously paid for; and (ii) the actual variable costs of work-in-process and unsalvageable raw materials incurred by Seller in furnishing the goods or services under the Purchase Order (excluding set-up and tooling costs) to the extent such costs are reasonable in amount and are properly allocable or apportioned, under generally accepted accounting principles consistently applied, to the terminated portion of the Purchase Order; less, however, the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer's written consent, and the cost of any damaged or destroyed goods or materials. Buyer will make no payments for finished goods, work-in-process or raw materials fabricated or procured by Seller in amounts in excess of those authorized in delivery releases nor for any undelivered goods which are in Seller's standard stock or which are readily marketable. Payments made under this Paragraph (b) will not exceed the aggregate price payable by Buyer for finished goods which would be produced by Seller under delivery or release schedules outstanding at the date of termination. Except as provided in this Paragraph (b), Buyer will not be liable for and will not be required to make payments to Seller as a result of termination of the Purchase Order, directly or on account of claims by Seller's subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, and general and administrative burden charges. Within sixty (60) days from the effective date of termination, Seller will submit a comprehensive written termination claim to Buyer with sufficient supporting data to permit Buyer's audit, and will thereafter promptly furnish such supplemental and supporting information as Buyer reasonably requests. Seller's failure to submit a timely termination claim will constitute a waiver of such claim. Buyer or its agents may audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller.
10. Intellectual Property. Seller warrants that the goods or articles delivered under the Purchase Order, and the sale and use of such goods or articles, will not infringe upon any patent, trademark or copyright in any jurisdiction. Seller will defend, indemnify and hold harmless Buyer, its successors, assigns, customers and users of its products, from and against all suits and any damages, costs and expenses awarded, including reasonable attorneys' fees, arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright or other intellectual property right by reason of the manufacture, use or sale of the goods or services ordered including infringement arising out of compliance with specifications furnished by Buyer or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller's actions. Seller further agrees to waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, related to a claim asserted against Seller or Buyer for patent, trademark, copyright or other intellectual property right infringement, including claims arising out of compliance with specifications furnished by Buyer. Seller further grants Buyer a worldwide, nonexclusive, royalty-free, irrevocable license to repair and have repaired, and to reconstruct and have reconstructed, the goods covered by the Purchase Order. Seller hereby assigns to Buyer all right, title and interest in and to all trademarks, copyrights and other intellectual property rights in any material created for Buyer under the Purchase Order. Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical information which Seller has disclosed or may hereafter disclose to Buyer in connection with the goods or services covered by the Purchase Order.
11. Indemnity, Limitation of Liability, and Insurance. Seller shall indemnify, defend, and hold harmless Buyer, including its parent, subsidiaries, affiliates, assigns, directors, officers, employees, agents and invitees (collectively referred to hereinafter as “Buyer Indemnified Parties”) from and against any and all liability, demands, claims, litigation or proceedings, loss, cost, damage and expenses (including reasonable attorney’s fees) as a result of any injury or damage to person or property of any nature (hereinafter “Claims”) arising out of or in connection with any goods, services, negligence, acts, or omissions by Seller or its suppliers, contractors or agents, except as a direct result of Buyer Indemnified Parties’ sole negligence.
    
    LIMITATION OF LIABILITY: ANY PROVISION TO THE CONTRARY NOTWITHSTANDING, BUYER INDEMNIFIED PARTIES’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS PURCHASE ORDER INCLUDING THE SUSPENSION, TERMINATION OR BREACH HEREOF IS LIMITED TO THE AMOUNT PAID BY BUYER FOR THE GOODS AND/OR SERVICES UNDER THIS PURCHASE ORDER. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, BUYER SHALL NOT BE LIABLE UNDER THIS PURCHASE ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    
    Seller shall, at its own expense, procure and maintain liability insurance to cover all Claims for injuries to persons or damages to property and all indemnity obligations to Buyer Indemnified Parties (including a duty to defend) which includes but is not limited to workers’ compensation in a statutory minimum limit with a waiver of subrogation in favor of Buyer Indemnified Parties, employer’s liability at a minimum limit of $500,000 per occurrence, commercial auto at a minimum limit of $5,000,000 per occurrence, general and products’ liability at a minimum limit of $5,000,000 per occurrence which includes, but is not limited to coverage for products, completed operations, bodily injury, property damage, and personal & advertising injury and contractual liability All Seller’s insurance shall provide or be endorsed to be primary to any insurance available to Buyer Indemnified Parties. All Buyers Indemnified Parties’ insurance shall be excess over all Seller’s insurance and shall not contribute with Seller’s insurance. Seller shall ensure all Buyer Indemnified Parties are endorsed to the policies (except workers compensation) as additional insureds (including a written cancellation notice provision) with respect to liability for all Claims arising out of services, products or operations by or on behalf of Seller including all materials parts and equipment provided under this Purchase Order. Seller hereby grants to Buyer Indemnified Parties a waiver of any right to subrogation which any insurer of Seller may have against Buyer Indemnified Parties and Seller agrees to obtain any endorsement that may be necessary to affect the waiver of subrogation, but this provision applies regardless of whether or not Buyer Indemnified Parties has received such an endorsement. Seller shall, if requested by Buyer, furnish certificates of insurance and/or copies of endorsements indicating the foregoing coverage.
    
    In addition to any right of setoff provided by law, all amounts due Seller shall be considered net of indebtedness of Seller to Buyer and its affiliates. Buyer may deduct from any sums due to Seller any amounts due or to become due from Seller to Buyer and its affiliates.
12. Remedies. The rights and remedies reserved to Buyer in the Purchase Order are cumulative and in addition to all other or further remedies provided in law or equity.
13. Duty Drawback Rights. The Purchase Order includes all related customs, duty and import drawback rights, if any (including rights developed by substitution and rights which may be acquired from Seller's suppliers), which Seller can transfer to Buyer. Seller agrees to inform Buyer of the existence of any such rights and upon request to supply such documents as may be required to obtain such drawback.
14. Title and Payment. Seller warrants that at the time of sale under the Purchase Order, it will convey to Buyer full title to the goods, free and clear of any and liens, claims, encumbrances, and interests of any third parties, including Seller's subcontractors and suppliers, and that all of Seller's subcontractors and suppliers will have been paid to the extent required by law or by Seller's subcontracts or suborders. Unless otherwise provided on the face of this Purchase Order, the prices appearing herein include all packaging, crating and federal, state and local taxes. Cash discount periods will be computed from the later of (a) the date of delivery and acceptance of the items ordered, or (b) the date of receipt of correct and proper invoices prepared in accordance with the terms of this Purchase Order. Seller further warrants (unless otherwise specifically stated on the face of this Purchase Order) that none of the items furnished under this Purchase Order are government or commercial surplus, used, remanufactured or reconditioned or of such age or so deteriorated as to impair the usefulness or safety thereof.
15. Advertising. Seller will not in any manner advertise or publish the fact that Seller has contracted to furnish Buyer or Buyer's customers the material ordered in the Purchase Order without first obtaining the written consent of Buyer. If Seller violates this advertising restriction, Buyer may terminate all or part of the Purchase Order without any obligation to accept deliveries after the date of termination or make further payments, except for completed articles delivered prior to termination.
16. Government Compliance [For U.S. and Other Sellers]. Seller shall comply with all applicable federal, state and local laws, executive orders, rules and regulations during performance of this Purchase Order, including but not limited to the Occupational Safety and Health Act of 1970, as amended ("OSHA"), Toxic Substances Control Act as amended ("TSCA"), Resource Conservation and Recover Act of 1976, as amended ("RCRA")., Fair Labor Standards Act of 1938, as amended ("FLSA") and the National Traffic and Motor Vehicle Safety Act of 1966, as amended ("NTMVSA"). Seller warrants that (i) all items sold or furnished under this Purchase Order will conform to and comply with OSHA standards and regulations and all applicable Federal Motor Vehicle Safety Standards issued under the NTMVSA, (ii) such items have been manufactured or furnished in accordance with the FLSA and regulations issued thereunder, and (iii) for each chemical product or product containing a chemical substance purchased under this Purchase Order, Seller shall furnish Buyer a Material Safety Data Sheet ("MSDS") in conformance with OSHA, state and local requirements, unless a current MSDS has previously been submitted by Seller to Buyer. Seller further warrants that all chemical substances delivered under this Purchase Order will conform to and comply with the TSCA and regulations issued thereunder. Seller agrees to include on all invoices, "We hereby certify that these goods were produced in compliance with all applicable requirements of orders of the United States Department of Labor issued under Section 14 thereof (29 U.S.C 206, 207, 212 and 214)". Seller agrees to indemnify and hold Buyer and its customers harmless from and against any loss, damage and expenses sustained because of Seller's non-compliance with any applicable law. Unless otherwise exempt under rules and regulations of the Secretary of Labor, Seller agrees to comply during performance of this Purchase Order with the following clauses as set forth in the indicated Code of Federal Regulations reference. Equal Opportunity/41 CFR Part 60-1.4, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era/41 CFR Part 60-250-4 and Affirmative Action for Handicapped Workers/41 CFR Part 60-741.4. Seller agrees to indemnify, defend and hold harmless Buyer and its customers for any loss or damage sustained because of Seller's non-compliance with any such laws, orders, rules, regulations or ordinances.
    
    16 (A): Government Compliance [For Canadian Sellers]. Seller and all Goods being purchased through this Purchase Order shall conform to all applicable federal, provincial, and local statutes, laws, rules, regulations, and ordinances. Seller shall notify compliance with this Section on all of its invoices sent to Buyer. Seller agrees to indemnify, defend and hold harmless Buyer and its customers for any loss or damage sustained because of Seller's non-compliance with any such laws, orders, rules, regulations or ordinances.
17. No Implied Waiver. No waiver of any breach of any provision of the Purchase Order will constitute a waiver of any prior or subsequent breach or an amendment or modification of the Purchase Order.
18. Confidentiality. In no event may copies of the Purchase Order or of any plans, specifications or other similar documents relating to work under the Purchase Order be furnished to any person or entity not entitled to receive such documents, without the prior written consent of Buyer. All drawings, data, designs, engineering instructions, models, specifications or other technical information, written, oral or otherwise, supplied by or on behalf of Buyer or prepared by Seller specifically in connection with performance of this Purchase Order (hereinafter "Information") shall be and remain the property of Buyer. Seller shall not use or disclose such Information except in the performance of orders for Buyer and upon Buyer's request such Information and all copies thereof shall immediately be returned to Buyer. Where such Information is furnished to Seller's suppliers for procurement of supplies by Seller for use in the performance of Buyer's Purchase Orders, Seller shall insert the substance of this provision in any Purchase Order or subcontract hereunder.
19. Governing Law and Forum. The Purchase Order and the entire relationship between Buyer, Seller and their affiliates will be governed by and construed according to the laws of the State of Minnesota, without regard to principles of conflicts of law. Any action or claim between the parties may be brought only in Minnesota, and Seller consents to personal jurisdiction of courts located in Minnesota.
20. Severability. If any term of the Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term will be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Purchase Order will remain in full force and effect.
21. Entire Agreement; Amendment. Except where separate written agreement has been reached by the parties, the Purchase Order, together with the attachments, exhibits, releases or supplements specifically referenced in the Purchase Order, constitutes the entire and only agreement between Seller and Buyer with respect to the subject matter of those documents. The terms stated on the face of Buyer's signed Purchase Order will supersede any contradictory provision in these Terms. This Purchase Order may be amended only by written instrument executed by all of the parties hereto.
22. Additional Terms. Seller specifically agrees to comply with Buyer’s Supplier Code of Conduct, as modified from time-to-time, found at https://abc-companies.com/wp-content/uploads/2024/01/ABC-Companies_Supplier-Code-of-Conduct_2025.pdf As applicable, all nonexempt contractors and vendors will comply with the provisions of 29 CFR Part 470 (Obligation of Federal Contractors and Subcontractors; Notice of Employee Rights Concerning Payment of Union Dues or Fees). The provisions of the Equal Opportunity Clauses at 41 CFR §60-250.5(a) and 41 CFR §60-741.5(a) are hereby incorporated as terms and conditions of this Purchase Order as necessary.