ALBANY
INTERNATIONAL CORP.
TERMS AND
CONDITIONS OF PURCHASE
Agreement. Unless otherwise agreed to in a writing singed by Albany International
Corp.(“Buyer”), Buyer’s Purchase Order (“PO”),
together with the terms and conditions (“Terms”) provided herein, is the entire
agreement between Buyer and Seller with respect to the goods and/or services
(“Goods”) specified. No course of dealing or usage of the trade shall be
applicable unless expressly agreed to by Buyer in writing. No other document,
including but not limited to, Seller’s proposal, quotation or acknowledgement
form, will be part of Buyer’s PO unless specifically agreed to in writing by
Buyer. ANY DIFFERENT OR ADDITIONAL TERMS ARE HEREBY OBJECTED
TO BY BUYER. No right that Buyer may have regarding Buyer’s PO may be waived or modified except by Buyer in writing. Seller
acknowledges that time is of the essence. Failure to tender conforming goods by
the delivery date specified by Buyer shall constitute a breach by Seller and
Seller shall have no right to make a later conforming tender except upon prior
written authorization by Buyer.
Price/Tax. If price
is not stated in Buyer’s PO or otherwise agreed to in
writing by Buyer, the price shall be Seller’s lowest prevailing market price.
In any event, Seller warrants that the prices charged to Buyer hereunder are no
higher than the prices charged by Seller for the same or similar items and
quantities to any other buyer. Unless otherwise agreed to in writing by Buyer,
terms of payment are net 60 days. Payment of invoices will
not be deemed acceptance of Goods. Seller agrees that, unless otherwise
indicated by Buyer, (A) prices specified by Buyer in any orders do not include
any state or local sales, use or other tax for which an exemption is available,
and (B) such prices include all other applicable federal, state and local taxes
in effect at the date of such order. Seller agrees to accept and use tax
exemption certificates when furnished by Buyer. Federal Excise Tax, if
applicable, must be shown separately on invoice.
Shipments. No charge will be allowed for packing or shipping unless designated by
Buyer. If shipping costs are agreed to by Buyer,
shipments must be packed to secure to the lowest transportation costs within
the time specified for performance. Bills of lading must accompany each
invoice. Orders not accompanied by packing lists will be
conclusively deemed in the amount of Buyer’s count or weight. If
Seller’s deliveries are behind the agreed upon schedule, Buyer may elect to
have further deliveries made by express shipments and Seller shall bear the
difference between freight and express shipping rates. Seller shall bear all
risk of loss or damage to goods covered hereunder until acceptance by Buyer as
described in Section 4 below. If requested by Buyer, Seller shall provide to
Buyer U.S. Customs Form 7543 entitled “Certificate of Delivery” properly
executed, as well as U.S. Customs Form 7501, “Entry Summary”.
Acceptance/Rejection. If within a reasonable time after delivery Buyer
finds the Goods, or any part thereof, to be defective in workmanship or
materials or otherwise not in conformity with Buyer’s PO including, without
limitation, the drawings and/or specifications pertaining hereto, Buyer may, at
its discretion, by written notice to Seller, as to such Goods, (i) rescind Buyer’s PO, (ii) accept them at an equitable
reduction in price, (iii) reject and hold them, at Seller's expense subject to
their disposal, and require the delivery of replacement goods, or payment to
Buyer of the replacement cost of such Goods, or (iv) return them freight
collect. If Seller fails to deliver such required replacements promptly,
Buyer may (i) replace such Goods and/or Services and
charge Seller with the cost incurred thereby, or (ii) terminate Buyer’s PO.
Payment by Buyer prior to final inspection and acceptance shall not constitute
acceptance.
Changes/Cancellation. Buyer
shall have the right at any time to make changes in quantities, in drawings and
specifications, in delivery schedules, and methods of shipment and
packages. Changes shall not be binding upon Buyer unless
evidenced by a PO change-notice issued and signed by Buyer. Buyer
may cancel any order in whole or in part (a) at any time prior to acceptance by
Seller and (b) thereafter, in case Seller makes an assignment for the benefit
of creditors, or a receiver is appointed for Seller, or if proceedings in
bankruptcy or for corporate reorganization are filed by or against Seller or upon
Seller’s failure to comply with any of the terms and conditions of such order.
Buyer’s Property. All tools, equipment or material furnished to Seller by Buyer shall be and remain the personal property of Buyer and,
whenever practicable, shall be plainly marked by Seller as the property of
Buyer and shall be safely stored separately and apart from Seller’s property.
Buyer’s property while in Seller’s custody shall be held
at Seller’s risk, shall be insured by Seller at Seller’s expense in amounts
equal to replacement costs with loss payable to Buyer and shall be subject to
removal at Buyer’s request.
Buyer’s Premises. If Seller, its employees, agents, or
sub-contractors are to furnish any labor or services of any kind whatsoever on
Buyer’s premises in connection with any order: Seller agrees to abide by
Buyer’s rules and regulations governing contractors and suppliers while working
on or maintaining facilities on Buyer’s premises, copies of which will be
furnished on request; and Seller shall, before starting work, furnish Buyer
with certificates from insurance carriers of Seller and Seller’s
sub-contractors (if any) that policies of insurance have been issued covering
their legal liability under (i) applicable workmen’s
compensation and occupational disease laws; (ii) public liability insurance
with limits of $1,000,000 per occurrence/ $2,000,000 aggregate for bodily
injury or death and $1,000,000 per occurrence/ $2,000,000 aggregate for
property damage, including loss of use thereof; (iii) contractual liability
insurance covering the indemnification set forth in paragraph 11 hereof; and
(iv) motor vehicle liability insurance with limits of $1,000,000 per
occurrence/ $2,000,000 aggregate for bodily injury or death and $50,000 for
property damage, including loss of use thereof.
Buyer’s Use. Buyer, its successors and assigns, may subject all goods to further
manufacture, may combine them with other articles, or sell or put them to any
use whatsoever, and no claim for royalties or additional compensation may be
made by Seller or anyone else by reason of such
manufacture, combination, sale or use. All unpatented ideas,
information, designs, devices, prints, drawings and technical data concerning
Seller’s products, methods or manufacturing processes which Seller discloses or
furnishes to Buyer in connection with any order shall, except only to the
extent as may be otherwise specifically agreed in writing by Buyer and Seller,
be deemed to have been disclosed or furnished as part of the consideration for
such order, and Seller agrees not to assert any claims by reason of Buyer’s
use, duplication or disclosure thereof.
Warranty. Seller expressly warrants that all materials and articles furnished
(hereinafter called “goods”) will conform to applicable specifications, drawings
and samples, that they will be free from defects in material and workmanship,
and that they will be fit for their intended use. Said warranties, however, shall not be deemed to limit any warranties or
representations of additional scope given to Buyer by Seller or any warranties
implied by law. The period fixed by law or agreement during which Buyer may
assert any claim pursuant to applicable warranties shall commence with the date
on which the goods are first put into use.
Indemnity. Seller shall indemnify and hold Buyer, its
successors and assigns, harmless from and against any and all actions, claims,
liability, cost, damage or expense including attorneys’ fees and other expenses
of defense, attributable in whole or in part to any act or omission of Seller,
its employees, agents or sub-contractors arising out of or in connection with
(a) the filling of this order or Seller’s performance hereunder, or (b) the
furnishing of any labor or services hereunder, or (c) the use or sale of any
goods or services provided for herein by Buyer or its customers, or (d)
Seller’s violation of or failure to comply with any applicable law, rule,
regulation or governmental, court or administrative order. The aforesaid
obligations of Seller shall be in addition to and not in limitation of any
other right, including common law indemnity, to which Buyer may be entitled,
and Seller’s said obligation shall not be limited or restricted for any cause
whatsoever including the use or operation of Buyer’s materials, tools or equipment
by Seller, its employees, agents or sub-contractors.
Infringement. Seller shall indemnify, defend and hold Buyer, its
successors and assigns, harmless from and against any and all actions, claims,
liability, cost, damage or expense, including attorneys’ fees and other
expenses, with respect to any claim of patent infringement or the infringement
of any proprietary information of third parties arising out of the manufacture,
use or sale of the goods called for by any order; provided that this provision
shall not apply if any such claim relates to specifications or information
furnished to Seller by Buyer.
Compliance with Laws. Seller agrees
that it will comply with all federal, state, and local laws and regulations
applicable to the production, sale and delivery of the goods or the furnishing
of any labor or services, and any provisions required thereby shall be deemed to be incorporated herein by reference. Without limiting the generality of the foregoing, Seller certifies
that, to the extent such laws are applicable, (a) all goods have been or will
be produced in compliance with the requirements of the Fair Labor Standards Act
of 1938, as amended, and a certification evidencing such compliance shall be
printed, stamped or typed on Seller’s invoices, and (b) all goods furnished
will conform to and comply with the Occupational Safety and Health Act of 1970
and the standards and regulations issued thereunder. The
clauses set forth in subsections 52.222-26 (Equal Opportunity), 52.222-35
(Affirmative Action for Special Disabled and Vietnam Era Veterans), 52.222-36
(Affirmative Action for Handicapped Workers), 52.203-6 (Restrictions on Subcontractor
Sales to the Government), 52.203-7 (Anti-Kickback Procedures), 52.203-11
(Certification and Disclosure Regarding Payments to Influence Certain Federal
Transactions), 52.203-12 (Limitation on Payments to Influence Certain Federal
Transactions), 52.219-9 (Small Business and Small Disadvantaged Business
Subcontracting Plan), 52.220-3 (Utilization of Labor Surplus Area Concerns),
52.222-1 (Notice to the Government of Labor Disputes), 52.222-21 (Certification
of Non-segregated Facilities), 52.222-37 (Employment Reports on Special
Disabled Veterans and Veterans of the Vietnam Era), 52.223-2 (Clean Air and
Water Certification), 52.227-1 (Authorization and Consent) and 52.227-2 (Notice
and Assistance Regarding Patent and Copyright Infringement) of the Federal
Acquisition Regulation are incorporated herein by reference to the extent
required by law and/or pursuant to any agreement between Buyer and an executive
agency of the United States government, or a supplier to such an agency, to be
so incorporated. Seller agrees to incorporate these clauses into any
agreements with its own contractors or suppliers to the extent required by such
of the above clauses as are incorporated by reference
herein. Seller acknowledges that acceptance of any order shall be deemed a
certification by Seller of certain statements set forth in the incorporated clause. For Goods produced/assembled/performed
in or delivered to the United States, Seller (i)
warrants that each chemical substance constituting or contained in Goods and
Services sold or otherwise transferred to Buyer hereunder is on the list of
chemical substances compiled and published by the Administrator of the
Environmental Protection Administration pursuant to the Toxic Substances
Control Act (P.L. No. 92-573) as amended, (ii) certifies and guarantees that
the Goods supplied hereunder are in compliance with applicable sections of the
Federal Hazardous Substances Act (P.L. No. 92-516), as amended,
and lawful standards and regulations thereunder and (iii) agrees to identify all
hazardous materials contained in items delivered to Buyer and provide all
relevant information pursuant to the Occupational Safety and Health Act (OSHA)
regulations 29 CFR § 1910.1200, including a completed Material Safety Data
Sheet (OSHA Form 20) and the mandated labeling information. Seller
represents that no products supplied under Buyer’s PO have
been produced utilizing forced, indentured or convict labor or utilizing
the labor of persons in violation of the minimum working age law in the country
of manufacture. In the event Buyer determines Seller’s certification to be
inaccurate or incomplete, Buyer shall have the right to
immediately terminate Buyer’s PO without further compensation to the
Seller. Seller shall indemnify and hold harmless Buyer from and against any
costs, liabilities, claims and expenses (including without limitation,
attorneys’ fees) arising out of or in connection with the representations made
by Seller in this Section 12.
Assignment. Except as otherwise expressly provided
therein, no order shall be assignable by Seller without the prior written
consent of Buyer.
Governing
Law. These Terms shall be
construed in accordance with the laws of the State of New York, United
States. The applicability of the UN Convention on Contracts
for the International Sale of Goods is hereby expressly waived by the parties.
Confidential
Information. All
disclosures, drawings, specifications, patterns or technical information
furnished to Seller by Buyer are submitted in confidence upon the understanding
and agreement by Seller that they shall not be disclosed or furnished to any
third party, shall not be used by Seller in whole or in part for any purpose
not designated by Buyer, and shall be returned to Buyer immediately upon
Buyer’s request. Furthermore, Seller
shall make no announcements concerning the fact that Seller has contracted to
supply any materials or services for Buyer without the prior written permission
of Buyer.
Publicity. Advertising,
press releases, or marketing or sales brochures and any other publicity
identifying the existence of Buyer’s PO or relating to Buyer in any way may not be released or published without the prior written
permission of Buyer.
International Dispute
Resolution. Where Seller is domiciled, and the Goods
and Services are produced/assembled/performed, outside the United States, all
disputes arising in connection with this Purchase Order shall
be finally settled by arbitration by a panel of three arbitrators, in
accordance with the Rules of Conciliation and Arbitration of the International
Chamber of Commerce. The expense of such arbitration shall be borne equally by
Buyer and Seller, but each party will pay its own attorneys' fees. The seat of
arbitration shall be Albany, New York, U.S.A. The arbitration shall be conducted in English and both parties shall have
the right to present documentary evidence and witnesses. Both parties shall
also have the right to cross examine witnesses. The
decision of the arbitrators shall be final and binding upon both parties, and
neither party shall seek recourse to a law court or other authorities to appeal
for revisions of such decision.
Domestic Dispute
Resolution. Where Seller
is domiciled, or the goods and services are produced/assembled/performed within the
United States, all disputes arising in connection with this Purchase Order
shall be settled in State or Federal courts in Albany, New York, U.S.A. Seller hereby submits to the jurisdiction
of New York State or Federal Court, as applicable, sitting in Albany, New York,
and agrees that it may be served with all litigation documents (including the
initiation of litigation) via Certified Mail, Federal Express, or other
recognized delivery service which provides evidence of delivery.
Currency. Seller
warrants that it is authorized to
receive payment in the currency stated in Buyer’s PO
and shall be responsible for any costs, taxes, fees, or fines incurred if Buyer
is required to make payment in any other currency.
Non-Exclusive Agreement. Seller
agrees that this is not an exclusive agreement. Buyer is free to purchase Goods
which are the same or similar to Seller’s Goods from any third party.
Survival. Any obligations which by their nature
extend beyond the expiration or earlier termination of these Terms shall
survive.
Force Majeure. Strikes, fires, litigations, accidents or other causes beyond the control of Buyer, which shall affect Buyer’s
ability to receive and use the goods, shall constitute valid ground for
suspension of shipment under any order, upon notification to Seller.
Limitation on Buyer’s Liability. In no event shall Buyer be liable to Seller for
any indirect, consequential, incidental or special damages.