The following Terms and Conditions are applicable to Schenker Americas, Inc. and its subsidiaries and US affiliates, including but not limited to Schenker, Inc. and Schenker Global Management & Technology Center Americas, Inc. (hereinafter referred to as Schenker or Buyer and transactions, wherein Schenker is the Buyer and the other contracting party is the Seller.
Terms and Conditions
GOVERNING PROVISIONS. In the event of conflict between the terms written on the face of Schenker’s Purchase Order or other contract of purchase (the “PO”) and these Purchase Agreement Terms & Conditions ("T&Cs"), the terms written on the face of the PO or other contract of purchase shall prevail. Any goods or materials purchased by Schenker, ("Buyer") from Seller (the "Products"), and any service performed for Buyer by Seller (the "Services"), shall be deemed to be only upon the terms, including these T&Cs, in this Agreement, except as they may be added to, modified, superseded, or otherwise altered by Buyer or by mutual agreement of the parties. The terms of the PO and these T&Cs shall exclusively govern transactions between Buyer and Seller notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice or other form of Seller and notwithstanding Buyer's act of accepting or paying for any shipment or any similar act of Buyer. Buyer hereby rejects any different or additional terms and conditions proposed by Seller.
COMPLIANCE WITH LAWS. Seller warrants that any Products shall be adequately contained, packaged, marked, labeled and registered in compliance with, and that the Products and Services shall conform to, the requirements of all applicable Federal, State and local laws, regulations, rules and orders. In accordance with the foregoing provision, but not by way of limitation, it is specifically understood Seller warrants that Seller complies with the Fair Labor Standards Act of 1938, as amended. Seller agrees that, if this is construed to be a subcontract within the meaning of the Rules and Regulations approved by the United States Secretary of Labor pursuant to Executive Order 11246, as amended, the Vietnam Era Veterans Readjustment Act of 1974, as amended, or the Rehabilitation Act of 1973, as amended, or of the regulations issued pursuant to Executive Order 11625, the provisions of the applicable regulations as well as the Equal Opportunity and Nondiscrimination provision of Section 202 of Executive Order 11246 shall be incorporated herein by reference and shall be binding upon Seller as part of this Agreement. Seller warrants that all Products meet or exceed the safety standards established and promulgated under the Occupational Safety and Health Act of 1970, and the regulations issued thereunder, as amended. Seller shall defend, indemnify and save harmless Buyer from and against any claims, liabilities, expenses (including attorneys' fees), fines, penalties, damages and/or economic losses arising out of or resulting from the failure of Seller and/or the Products or the Services to comply with the requirements of this Paragraph 2.
PRICE AND DELIVERY. No extra charge of any kind, including charges for boxing, packing or crating shall be allowed unless specifically agreed to in writing in advance by Buyer. At any time during the term of this Agreement that Buyer can purchase goods of a like quantity at a price or under terms which will result in a delivered cost to Buyer that is lower than the delivered cost of the Products, Buyer may notify Seller of such lower delivered cost and Seller shall, within fifteen (15) days after such notice, advise Buyer in writing whether or not Seller shall meet such price or such terms. If Seller elects not to meet such price or such terms, or fails to advise Buyer within such period, Buyer may purchase the lower delivered cost goods, and the quantity of any purchase so made shall correspondingly reduce the purchase and sales obligations of Buyer and Seller hereunder. Unless otherwise provided in this Agreement, delivery of the Products shall be at Buyer's facility. Risk of loss, liability and/or damage shall remain with Seller until the Products are physically delivered to Buyer's facility.
FAVORED NATIONS. Seller warrants that the prices for the Products or the Services are not less favorable than those currently extended to any other customer for the same or like goods or services in equal or less quantities. In the event Seller reduces its price for such Products or services during the term of this Agreement, Seller agrees to reduce the price of the Products or Services correspondingly.
INSPECTION AND ACCEPTANCE. All Products or Services shall be accepted subject to Buyer's rights of inspection, rejection, and revocation of acceptance (pursuant to the provisions of Article 2 of the Uniform Commercial Code). Payment for or use of Products or Services prior to inspection shall not constitute acceptance thereof and shall be made without prejudice to any and all claims that Buyer may have against Seller. Buyer's signature on any shipping/receiving document shall not constitute acceptance of Product or Services or any different terms or conditions or acknowledge condition of Product or Services but shall merely acknowledge receipt of a shipment or Services.
Without limiting any of Buyer's rights provided by law or by this Agreement, Seller shall, upon request of Buyer and at Seller's expense, immediately replace at Buyer's facility any Products or Services rightfully rejected by Buyer.
TAXES AND GOVERNMENTAL CHARGES. This Agreement shall not include Sales or Use taxes, nor shall such taxes be added to the purchase price, if Buyer has indicated in the space provided for such purpose of the face hereof, that the purchase is exempt from such taxes. Seller agrees to pay any other taxes imposed by federal, state, or local law upon the Products or Services sold to Buyer hereunder unless otherwise agreed, except taxes required by law to be paid or borne by Buyer.
Seller shall, upon request of Buyer, inform Buyer whether any Products are imported or manufactured with imported materials and furnish Buyer with all documentation required for duty drawback for product or imported materials contained in the Product purchased by Buyer hereunder.
PATENTS. Seller agrees to defend, indemnify and hold harmless Buyer, its successors, customers and users, from and against all liability, economic loss, damage, and expense (including attorneys' fees) resulting from any actual or alleged infringement of any intellectual property right, or any litigation based thereon, with respect to the Products or Services (or any part thereof and including Seller's process of manufacturing Products), and any such obligation shall survive acceptance of such Products or Services and payment therefore by Buyer.
INDEMNIFICATION. Seller shall assume the sole responsibility for any and all actual or alleged damage or injury (including death) to any and all persons (including, but not limited to employees of Seller or Buyer) and to all property arising out of or resulting from the performance of its obligations under this Agreement or any act or omission of Seller, and shall defend, indemnify and save harmless Buyer from and against any and all claims, liabilities, expenses (including reasonable attorneys' fees), fines, penalties, damages and/or economic losses of whatsoever nature arising therefrom except for such claims, liabilities, etc. as are caused by the sole negligence of Buyer.
WARRANTY. Seller warrants good title to all Products. Seller warrants that the Products are new, merchantable, safe, fit for intended use, free from defects in workmanship and materials and conform to any specifications, drawings, samples, or other descriptions referenced herein or applicable thereto.
Seller further warrants that all Services shall be performed in accordance with the highest standards, in a workmanlike manner, free from defects in workmanship and materials and in conformance with all specifications, plans, or drawings referenced herein or applicable thereto. Products or Services found to be defective in material or workmanship or nonconforming with specifications within eighteen months from the date of shipment (or performance) or twelve months from the date of putting same into service, whichever date occurs first, shall, at Buyer's
option be corrected or repaired in place by Seller, or be replaced at Buyer's facilities by Seller, or be returned to Seller at Seller's expense (including transportation and handling costs) for repair, replacement or full refund.
These warranties shall survive any inspection, delivery, use or acceptance of Products or Services, or payment therefore by Buyer. Seller agrees that all warranties and indemnities applicable to Products or Services provided hereunder shall automatically inure to the benefit of, and be directly enforceable by, a third party purchasing or receiving such Products or Services from Buyer.
LIEN WAIVERS/SUBCONTRACTORS. Seller shall, at its sole cost and expense, obtain from all its subcontractors and materialmen waivers and releases of all liens which may be imposed by them against the premises of Buyer or the improvements thereon, in connection with any Products or Services, and Seller shall defend, indemnify and hold harmless Buyer with respect thereto. If Seller engages subcontractors, Seller agrees that its agreements therewith shall provide for the subcontractors to be bound by these terms and conditions as fully as if they were the prime contractor and, without limiting the generality of the foregoing, to provide to Buyer the insurance certificates required in paragraph 16 hereof.
CANCELLATION. Time is of the essence of this Agreement. In addition to all its other legal remedies, Buyer reserves the right to cancel all or any part of the undelivered Products or Services if Seller does not make deliveries as specified, or if Seller breaches any of the terms hereof. Buyer may terminate the purchase of Services or Products at any time for its convenience on 30 days’ advance written notice. Buyer may, at its option and without prejudice to any other remedy, terminate any PO immediately if Seller shall become insolvent or if Seller shall be in default of its obligations and such default continues for more than 10 days after written notice thereof.
FORCE MAJEURE. Each party shall be absolved from liability from any act, omission or circumstance occasioned by any cause not within its control, without the negligence of the party affected, and which it could not, by reasonable diligence, have foreseen or avoided. Such acts, omissions or circumstances, however, shall not relieve a party of liability in the event of its failure to use reasonable diligence to remedy the situation and remove the cause with all reasonable dispatch and to give notice (including all details of the situation) in writing to the other party as soon as possible after the occurrence thereof.
SECRECY. Seller agrees not to make any use of writings, data, designs, drawings, specifications or any other information furnished to it by Buyer or observed or developed by Seller in the performance hereof and to not disclose any of the foregoing to third parties, except as required in the performance of this Agreement and then only after first obtaining a written agreement from such third parties to be bound by similar secrecy and use restrictions. Upon completion, cancellation or termination of this Agreement, Seller shall return to Buyer all of the foregoing, including all copies, extracts or derivatives of tangible materials containing any of the foregoing made by Seller or third parties employed by Seller. Buyer shall at all times have title to all drawings, specifications, writings or other documents prepared or furnished by Seller hereunder. All Products or Services produced for Buyer hereunder which are subject to or may be copyrighted under the Federal Copyright Act shall be deemed to be "works made for hire" and title to and ownership of such Products or Services shall at all times be in Buyer.
QUALITY COMMITMENT. Seller agrees to promptly notify Buyer of loss of any third-party certification (such as ISO9000 Series, QS9000) that occurs during the term of this Agreement or any extension thereof.
SUBSTANCE ABUSE/CONDUCT ON BUYER’S PREMISES. Seller certifies at all times while Seller's employees, representatives, agents, and subcontractors are on Buyer's premises, Seller and its employees, representatives, agents, and subcontractors shall be in compliance with the Drug Free Workplace Act of 1988, as it may be amended, (which shall be deemed to apply to all services performed hereunder) and any governmental laws or regulations regarding substance abuse. Seller will take all action: (i) necessary to comply with such requirements and (ii) which Buyer reasonably deems necessary to prevent substance abuse or the influence of legal and illegal drugs and alcohol on Seller's employees while on Buyer's premises.
Seller certifies at all times that if Seller's employees, representatives, agents, or subcontractors are to perform Services on Buyer's or its customers’ premises, Seller’s employees, representatives, agents, and subcontractors shall have had a comprehensive criminal background check conducted by Seller or the individual’s employer no earlier than 30 days prior to being assigned to perform Services on Buyer’s or its customers’ premises. This investigation will review the individual’s background for the past seven years and will cover each and every state/county/locality (unlimited in number) where the individual has lived or worked, and also will include a review of each and every applicable national or federal database. This investigation will include all alias names provided to Seller and/or found on the Social Security number trace and address locator (unlimited in number). Seller will conduct an individualized analysis of each background investigation result with regard to the role the individual is proposed to assume on Buyer’s or its customers’ premises and the potential risk the individual will pose if placed on Buyer’s or its customers’ premises. In addition to all relevant laws, Seller will consider the following factors in making its determination of whether an individual should be proposed to be placed at Buyer’s or its customers’ premises: the nature of the conviction, the amount of time that has passed since the conviction, the age of the individual at the time of the conviction, and the nature of the role/job-relatedness of the conviction. Buyer will not make personnel decisions with regard to Seller’s employees, representatives, agents, or subcontractors, but will have the absolute right to refuse to place any proposed individual on its or its customers’ premises based upon the information gathered during the background investigation.
Seller shall cause its employees, representatives, agents and subcontractors who enter on or about Buyer’s premises or any facility occupied by Buyer to observe Buyer’s rules and policies regarding safety, health, security and the environment, and its vendor code of conduct, as applicable.
Seller shall procure and maintain all of the required insurance coverages from and with reputable and financially responsible insurance providers. SELLER shall procure and maintain the following minimum coverage levels. If SELLER is self insured for any or all of the types and levels of
insurance requirements codified in this Section, SELLER shall confirm this in writing which will be made part of this Contract by attachment.
Workers Compensation in accordance with state statutes.
Employer Liability of not less than $1,000,000.00
Commercial general liability insurance (including contractual liability and protective liability coverage) insuring SELLER against liability for injuries to persons, including injuries resulting in death, environment restoration, and loss or destruction of or physical damage to property in a combined single limit of an amount not less than one million dollars ($1,000,000) per occurrence; five million ($5,000,000) general aggregate.
Auto Liability with combined single limits of liability for bodily injury or property damage of not less than $1,000,000.00. All insurance coverage’s provided under SELLER’S commercial automobile policy must be for all owned, leased, rented, hired, and any other vehicles operated by SELLER in connection with the transportation performed hereunder.
Each of the policies of insurance specified in this section shall name SCHENKER, its directors, officers, employees, stockholders, subsidiaries and affiliates, as additional insured as respects to SELLER’s negligence, and as a loss payee as SCHENKER’s interest may appear, and shall further provide that SCHENKER shall not be obligated to pay premiums for any such insurance, such insurance shall be primary with respect to all insured, and such insurance shall be applicable separately to each insured and shall cover claims, suits, actions or proceedings by each insured against any other insured.
SELLER’S insurance policies shall provide for waiver of insurer’s subrogation rights against SCHENKER, its directors, officers, employees, stockholders, subsidiaries and affiliates.
It is expressly understood that SCHENKER does not represent that the types of, or minimum levels of insurance coverage’s set forth herein are adequate to protect the SELLER’s interests. SELLER shall pay deductible amounts under the foregoing policies.
SELLER shall furnish SCHENKER written certificates from applicable insurance providers establishing that the said insurance has been procured and is being properly maintained. All such insurance policies shall provide (unless otherwise provided by statute), that in the event of cancellation or any material modification thereof, said underwriter shall endeavor to provide written notice of such cancellation or material modification shall be given to SCHENKER no less than thirty (30) days prior to the effective date of such cancellation or modification.
If SELLER fails to maintain any insurance required by this Section, SCHENKER may, at its option and without notice, provide such insurance where permissible by law and, in such event, SELLER will, promptly upon demand, reimburse SCHENKER for the cost thereof plus a 15% administration charge. In the event SELLER fails to make payment within ten (10) days thereafter, SCHENKER may deduct any outstanding amount from any payments then due SELLER.
Insurance Certificates must be made out to either business entity Schenker, Inc., or Schenker Logistics, Inc. depending on which entity you are conducting business with. The mailing address for the certificate of insurance is as follows.
41 Pinelawn Road, Suite 110,
Melville, New York 11747 (USA)
Attn: Insurance Compliance Department
This certificate of insurance must be on our file before the vendor or their representatives commence work on Schenker premises. To expedite the approval please e-mail the certificate to email@example.com
WORKS MADE FOR HIRE. All materials developed by SELLER in performance of the order will be “works made for hire” under the U.S. Copyright Laws. These materials include, but are not limited to, systems, computer programs, applications (in source code and object code format), modifications, derivative works, updates, operating instructions, reports, studies, flow charts, notes, stored data, unique design concepts, drawings and all other information or documentation developed for or relating to the computer software programs developed under this Agreement. These materials are owned by and are the property of BUYER and shall be provided to BUYER upon request. To the extent that the materials are not deemed “works made for hire,” SELLER hereby irrevocably grants, assigns, transfers, and sets over to BUYER all right, title and interest of any kind, nature or description in and to the materials. SELLER agrees to execute any documents reasonably requested by BUYER in connection with the registration of copyrights, trademarks and other intellectual property protection in the materials produced hereunder.
DELIVERY DATE. SELLER agrees to provide regular, written status updates every 15 days via email to procurement@DBSchenker.com on the progress of the order.
MISCELLANEOUS. No transfer or assignment of this Agreement or any of its rights or obligations shall be made by either party without the written consent of the other party which consent shall not be unreasonably withheld or delayed. The failure of either party to insist in any instance upon strict performance by the other party of any provision of this Agreement shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without reference to its conflicts of law principles. Seller agrees to cause its employees, representatives, agents or subcontractors who enter on or about any premises of SCHENKER or of SCHENKER’s customer to exercise reasonable care and to abide by site rules.