Terms and Conditions
- PAYMENT/PRICE/TAXES/QUANTITIES - Any reference to “Wheelabrator” shall be deemed to include Wheelabrator Technologies Inc., and any subsidiary(ies) or Affiliate(s) thereof. Prices and quantities on this Purchase Order shall be firm and fixed unless otherwise agreed to in writing by Wheelabrator. Unless otherwise provided herein, such prices include all applicable taxes, and invoices subject to discount will be discounted 2% if paid within 10 days of the invoice or the date of receipt and inspection of goods, whichever is later. Net bills will be paid within 60 days of the date of the invoice or the date of receipt and inspection of goods, whichever is later. Contractor/Vendor (“Seller”) shall invoice Wheelabrator within 60 days of the date of receipt and inspection of goods. Wheelabrator shall receive the benefit of any general reductions in Seller's price prior to delivery, and in no event shall Wheelabrator be charged a price higher than charged to Seller's other customers for goods or services of like grade and quality and in similar quantities. “Affiliate(s)” shall mean, as to any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity (each a “Person”), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. As used in this definition, “control” (including, with correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
- ACCEPTANCE/INSPECTION/REJECTION - By acceptance of this Purchase Order and/or performance hereunder, Seller agrees to comply with these terms and conditions. Acceptance of this Purchase Order is limited to the terms and conditions contained herein and none of Seller's terms and conditions in acknowledging or accepting this Purchase Order shall apply. Seller may not ship under reservation. Final inspection and acceptance of goods and services shall be on Wheelabrator's premises unless otherwise agreed to in writing. Payment for goods covered by this Purchase Order shall not constitute an acceptance thereof. The failure of Wheelabrator to inspect and accept or reject materials shall not relieve Seller from responsibility for defective or non-conforming materials nor constitute a waiver of any of Wheelabrator's rights or remedies hereunder. If any of the goods are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of this Purchase Order, in addition to such other rights, remedies and choices as it may have by contract or by law, Wheelabrator at its sole option may (a) reject and return such goods at Seller's expense; or (b) require Seller to remove and replace nonconforming goods with goods that conform to this Purchase Order. If Wheelabrator elects option (a) above, Seller will reimburse Wheelabrator for the purchase price paid for such rejected goods. If Wheelabrator elects option (b) above, and Seller fails to promptly make the necessary removal and replacement, Wheelabrator may inspect and sort the goods and return all nonconforming goods to Seller, at Seller's expense, and Seller will reimburse Wheelabrator for the purchase price paid for such nonconforming goods.
- DELIVERIES/REMEDIES/RISK OF LOSS - Time is of the essence for this Purchase Order. Whenever any event occurs that delays or threatens to delay the timely performance of this Purchase Order, Seller shall give immediate notice thereof to Wheelabrator in writing. If Seller does not comply with Wheelabrator's delivery schedule, Wheelabrator may require delivery by fastest way and charges resulting must be fully prepaid and absorbed by Seller. If Seller fails to make deliveries at the time agreed upon, Wheelabrator reserves the right to cancel this Purchase Order, purchase the undelivered items from any other source it chooses, and hold Seller accountable for any additional cost or damages incurred by Wheelabrator. Goods purchased F.O.B. Seller's plant or shipping point shall not be considered delivered until they reach the Wheelabrator receiving point indicated hereon. Title to all goods, and all documents, drawings, etc. relating thereto, will pass to Wheelabrator at the time of final acceptance by Wheelabrator. Any loss or damage prior thereto will be Seller's risk.
- WARRANTY - Seller warrants (a) it will, at the date of delivery, have good title to all goods supplied hereunder and said goods will be free and clear of any and all liens and encumbrances; (b) all goods will be new, merchantable, free from defect in materials or workmanship, fit for the purpose intended, and conform strictly to the specifications specified and any other documentation referenced herein; and (c) all services shall be performed in by qualified individuals in a good, professional and workmanlike manner, consistent with the level of care and skill ordinarily exercised in Seller's industry. This warranty shall survive any inspection, delivery, or acceptance of the goods or services, or payment therefor by Wheelabrator, and shall run to Wheelabrator and its successors and assigns, and shall not be deemed to be exclusive.
- CHANGES - Wheelabrator may, at any time in writing, make changes to this Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, the performance of the work under this Purchase Order, an equitable adjustment shall be made in the price and/or delivery schedule. Price increases or extensions of time for delivery shall not be binding on Wheelabrator unless evidenced by a change notice issued and signed by Wheelabrator. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within 20 days from receipt by Seller of the change. Nothing contained herein shall relieve Seller from proceeding without delay in the performance of this Purchase Order as changed. In connection with any claim for adjustment under this clause, Seller shall submit cost data in such form and detail as may reasonably be required by Wheelabrator.
- BANKRUPTCY - If Seller ceases to conduct its operations in the ordinary course of business (including inability to meet its obligations as they mature) or in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, including any reorganization proceeding, or in the event of the appointment of an assignee for the benefit of creditors, then Wheelabrator may cancel this Purchase Order for default and hold Seller accountable for any additional costs or damages incurred by Wheelabrator. Wheelabrator's only liability shall be payment in accordance with this Purchase Order for deliveries previously made or for goods or services covered by this Purchase Order that are subsequently delivered or performed in accordance with the terms of this Purchase Order.
- INFORMATION DISCLOSED/DRAWINGS - Seller shall keep confidential all technical, economic, or business information, including, but not limited to, pricing, methods, processes, financial data, lists, products, statistics, or related information, not known to the general public concerning Wheelabrator or its suppliers or customers which is obtained by Seller from any source during the term of this Purchase Order, and shall not divulge such information without obtaining Wheelabrator's prior written consent. Upon completion or termination of this Purchase Order, Seller shall promptly return to Wheelabrator all materials incorporating any such information and any copies thereof. Seller shall not make copies of any Wheelabrator documents unless required for the performance of this Purchase Order. Seller agrees that the remedy at law for any breach of the foregoing provisions of this paragraph will be inadequate and that Wheelabrator, in addition to any remedy at law, shall be entitled to appropriate injunctive relief. Seller shall promptly supply as-built drawings to Wheelabrator upon delivery of any goods or completion of any services. All drawings and other documentation prepared hereunder, and the related intellectual property rights, will be the sole and exclusive property of Wheelabrator and shall be deemed to be "Works-Made-For-Hire" within the meaning of the Copyright Act of 1976 of which Wheelabrator is the author of within the meaning of such Act.
- INDEMNIFICATION/INSURANCE - To the extent that Seller's agents, employees, or subcontractors enter upon a Wheelabrator site, Seller shall take all necessary steps to prevent the occurrence of any injury to any person, or any damage to any property, arising out of any acts or omissions of such agents, employees, or subcontractors. Except to the extent that any such injury or damage is due solely and directly to Wheelabrator's gross negligence, Seller shall indemnify, defend, and hold harmless Wheelabrator, its affiliates and their respective officers, directors, employees and agents, against any loss, claim, damage, liability, expense (including attorneys' fees) and cause of action, whether or not relating to third party claims, arising out of (a) any act or omission of Seller, its agents, employees or subcontractors, (b) defective goods supplied hereunder, or (c) any breach of any agreement or warranty hereunder. Seller shall maintain public liability, property damage, and employers' liability and workers' compensation insurance as will protect Wheelabrator from any of said risks and from any claims, with such limits as Wheelabrator shall request, and name Wheelabrator as additional insured thereunder. Seller shall hold harmless, defend and indemnify Wheelabrator, its affiliates and their respective officers, directors, employees, and agents against any loss, claim, damage, liability, expense (including attorneys' fees) and cause of action, whatsoever, based upon or arising out of any claim of infringement of any patent, trademark, trade secret or other proprietary right by reason of the use, sale or manufacture of any article furnished to Wheelabrator. These remedies shall be in addition to any other remedies provided for by law or equity.
- GOVERNING LAW/ENTIRE AGREEMENT/SUPPLEMENTARY DOCUMENTATION - This Purchase Order and the actions performed hereunder shall be governed by the laws of the state from which this Purchase Order is issued without regard to conflict of laws principles thereof. This Purchase Order, together with such other documents specifically agreed upon by Wheelabrator and Seller in writing to be a part hereof, shall constitute the entire agreement between the parties. All negotiations, agreements, etc. prior to the date of this Purchase Order, with respect to the subject matter of this Purchase Order, are superseded hereby. The terms and conditions in this Purchase Order shall govern over any provision in any of Seller's proposals, specifications, drawings, instructions, notices, or purchase orders.
- TERMINATION - Wheelabrator may terminate all or any part of this Purchase Order at any time without cause by written notice to Seller. In the event of such termination, Seller shall be entitled only to its actual documented costs and non-cancelable commitments incurred to the date of cancellation, less the salvage value of the work-in-progress and less the sum of any payments received by Seller through the date of cancellation.
- SET-OFF - Wheelabrator shall be entitled to set off any amount owing at any time from Seller to Wheelabrator against any amount payable at any time by Wheelabrator.
- COMPLIANCE WITH LAWS - Seller and all its employees, subcontractors, consultants, or agents shall, at Seller's expense, comply with all applicable laws, rules, and regulations, including those imposed by the specific Wheelabrator plant where the goods are to be delivered or the services to be performed, and assume all liabilities or obligations imposed by such laws, rules, and regulations with respect to Seller's performance under this Purchase Order.
- REMEDIES FOR BREACH - Upon Seller's breach of any provision of this Purchase Order, Wheelabrator may serve notice upon Seller to correct said breach. If within 5 calendar days of Seller's receipt of said notice, the breach is not remedied, Wheelabrator may retain all funds due or owing to Seller and may cause the goods or services to be delivered by another vendor. Upon Wheelabrator's request, Seller shall deliver to Wheelabrator all work-in-progress, and Wheelabrator may thereupon cause such work to be completed. Seller shall then be liable to Wheelabrator for the excess of (a) Wheelabrator's cost of obtaining the goods or services from another vendor, over (b) the original Purchase Order price, less any payments received by Seller. These remedies shall be in addition to any other remedies provided for by law or equity.
- SEVERABILITY/ASSIGNMENT - If any term or provision of this Purchase Order shall be invalid or unenforceable, the remainder of this Purchase Order shall be valid and enforced to the fullest extent permitted by law. Neither this Purchase Order nor any rights and obligations under it shall be assigned or contracted to a third party by Seller without the prior written consent of Wheelabrator.
- EQUAL EMPLOYMENT OPPORTUNITY - During the performance of this contract, the Seller agrees to comply with all Federal, state and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 CFR §60-1.4, 41 CFR §61-300.10, 29 CFR Part 471 Appendix A to Subpart A, 41 CFR §60-300.5 and 41 CFR §60-741.5, which specific clauses are herein incorporated by reference into all covered contracts and subcontracts as required by Federal law. THE SELLER SHALL ABIDE BY THE REQUIREMENTS OF 41 CFR §60-300.5(a) and §60-741.5(a). THESE REGULATIONS PROHIBIT DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS ON THE BASIS OF PROTECTED VETERAN STATUS OR DISABILITY, AND REQUIRE AFFIRMATIVE ACTION BY COVERED PRIME CONTRACTORS AND SUBCONTRACTORS TO EMPLOY AND ADVANCE IN EMPLOYMENT QUALIFIED PROTECTED VETERANS AND INDIVIDUALS WITH DISABILITIES.