Purchase Order Terms and Conditions
Last updated: January 14, 2022
These Purchase Order Terms and Conditions (these “Terms”) are the only terms which govern the purchase of goods, materials, supplies, software and other products (“Goods”) and/or services (“Services”) by Trew, LLC or any of its subsidiaries or affiliates submitting a purchase order (a “Purchase Order”) to Seller. As used herein, “Seller” shall mean the vendor, supplier, subcontractor or other third party to which the Purchase Order referencing these Terms was submitted for fulfillment and/or performance, and “Trew” shall mean the applicable Trew entity submitting the Purchase Order. Notwithstanding anything herein to the contrary, if a written contract signed by Trew and Seller is in effect covering the sale or license of the Goods and Services covered hereby, the terms and conditions of said contract shall govern and these Terms shall not apply to such covered Goods and Services.
The Purchase Order, any documents expressly referenced therein and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale or any other terms of Seller, including any terms contained in or referenced in any additional documentation or quotation/proposal that is referenced in any Purchase Order, it being acknowledged that such reference in the Purchase Order is solely for purposes of referencing the specifications for the Goods and/or Services to be provided by Seller and all other terms are rejected by Trew. The foregoing exclusion applies regardless of whether or when Seller has submitted such terms. This Agreement expressly limits Seller's acceptance to the terms of the Purchase Order and these Terms. Each Purchase Order shall be deemed to have been accepted by Seller upon the first to occur of Seller’s receipt and failure to object to the Purchase Order in writing within ten days after receipt, delivery of any portion of the Goods, beginning performance of the Services, invoicing for Goods or Services, or Seller’s acceptance of the Purchase Order by any other commercially reasonable means. The Purchase Order may be revoked by Trew at any time prior to acceptance.
If the Purchase Order is issued to a Seller who is a subcontractor to Trew, the following shall also apply: (i) Seller shall provide the Goods and/or Services in accordance with the documents listed as project documents in the Purchase Order and the schedule applicable to the project; (ii) Trew shall have the right to assign and pass through to its customer or end user under the prime contract for which Seller’s Goods and Services are being provided, and such customer or end user shall have the benefit of, all rights Trew obtains under the warranties given by Seller under these Terms or any Seller proposal, quote or other documents; (iii) Seller shall comply with all safety or security rules, procedures or instructions of Trew or its customer or end user, as applicable to the provision of the Goods and/or Services; (iv) except where the Price (as defined below) is a “not to exceed” amount, if Seller determines it will exceed the Price in its provision of the Goods and/or Services, Seller shall provide written notice to Trew in advance of the Price being exceeded, and in the absence of such notice, any amounts exceeding the Price shall be borne solely by Seller without reimbursement from Trew; (v) Seller shall submit to Trew time sheets for approval upon submission of each invoice (but only to the extent Services are being performed on a time and material basis) and properly executed lien waivers as requested by Trew; and (vi) Seller (on its own behalf or on behalf or in conjunction with any other person or entity) agrees that it shall not provide any material, software, controls, services, equipment, machinery or other items, directly or indirectly, to any customer or end user under the prime contract for which Seller’s Goods and Services are being provided without Trew’s prior written consent both during the term of this Agreement and for one (1) year following the termination or expiration of this Agreement or the applicable Purchase Order, whichever is later.
Delivery Of Goods And Performance Of Services
Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Trew may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Trew against any losses, claims, damages, and reasonable costs and expenses resulting from Seller's failure.
Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”). Seller shall pack all goods for shipment according to Trew's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Trew prior written notice if it requires Trew to return any packaging material. Any return of such packaging material shall be made at Seller's risk of loss and expense.
Seller shall provide the Services to Trew as described and in strict accordance with this Agreement. Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
If Seller delivers less than the required quantity of Goods ordered, Trew may reject all or any of the Goods. Any such rejected Goods shall be picked up by Seller at Seller's sole risk and expense within 5 business days after notice of rejection. Any Goods not picked up within such time will be deemed abandoned Goods and Trew may dispose of or use such Goods in its sole discretion on a zero liability basis. If Trew does not reject the Goods and instead accepts the delivery of Goods at the reduced quantity, the Price for the Goods shall be adjusted on reasonable basis determined by Trew.
Unless otherwise provided in the Purchase Order, delivery shall be made FOB Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Purchase Order.
Title And Risk Of Loss
Title and risk of loss passes to Trew as follows: (1) if Seller’s obligations under this Agreement include installation by Seller but Seller’s Goods and/or Services are not subject to acceptance testing, upon completion of installation by Seller in accordance with this Agreement; (2) if Seller’s Goods or Services are subject to acceptance testing, upon completion of acceptance testing; and (3) in all other cases, upon acceptance by Trew at the Delivery Point.
Inspection And Rejection of Nonconforming Goods
Trew has the right to inspect the Goods on or after the Delivery Date. Trew, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Trew rejects any portion of the Goods, Trew has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Trew requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Trew may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause as provided below. Any inspection or other action by Trew under this Section shall not reduce or otherwise affect Seller's obligations under this Agreement, and Trew shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, permit costs, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Trew.
Unless a different payment schedule is agreed to in writing by the parties, Seller shall issue an invoice to Trew on or any time after acceptance of the Goods and Services by Trew and only in accordance with these Terms. Unless different payment terms are set forth in the Purchase Order, Trew shall pay all properly invoiced amounts due to Seller within 60 days after Trew's receipt of such invoice, except for any amounts disputed by Trew in good faith. Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, Trew may set off any amount it owes to Seller against any liability of Seller to Trew, whether matured or unmatured, liquidated or unliquidated, or arising under this Agreement.
Seller's Obligations Regarding Services
Seller shall (a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (b) comply with all rules, regulations and policies of Trew and any worksite where Seller performs any Services, including security procedures concerning systems and data, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including reasonable records of the time spent and materials used by Seller in providing the Services; (d) to the extent the Purchase Order relates to Services being performed on a time and materials basis, submit to Trew, as a condition to payment, time sheets showing an accurate log of hours performed by all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Seller, in performance of the Services upon submission of each invoice; (e) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; and (f) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Trew or otherwise referenced in this Agreement.
Trew and its auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the records described under subsection (c) above, including documentation supporting accounting entries, books, job cost reports, correspondence, instructions, drawings, receipts, subcontractors, proposals, invoices, purchase orders, and other data relating to this Agreement. Seller shall preserve the foregoing records for a period of three (3) years.
If software products are listed in the Purchase Order, or if the Goods or Services deliverables include computer programs, software or firmware of any kind (collectively, "Software"), Seller hereby grants to Trew a perpetual, nonexclusive, transferable, royalty-free license to install, integrate, configure, operate, and use the Software for any purpose on any equipment or hardware, to copy the Software, to copy and use any related documentation and training materials, and to use any tool designed to create licensee-specific configurations. The price stated in the Purchase Order shall be or shall be deemed to include a one-time license fee, and all terms of this Purchase Order shall apply as if the license were a purchase. However, if the Software is developed for or modified according to the specifications of Trew, then the following applies:
Except as provided in the previous paragraph regarding standard "off-the-shelf" (non-customized) software, Trew shall be the sole and exclusive owner of all tangible or intangible products, materials, and any other things that are delivered by Seller or developed by Seller in connection with the performance of any Services. The Services shall be deemed to be a work made for hire and made in the course of the Services rendered. For purposes of this paragraph, the term "developments" means (a) all ideas, designs, patterns, specifications, prototypes, concepts, processes, methods, algorithms, formulas, techniques, or inventions, whether or not patentable, and all works of authorship, and (b) all related patents, copyrights, trademark rights, trade dress rights, and other intellectual property rights. Trew will own all developments that are (i) made, created, discovered, or reduced to practice in performing Services, or (ii) created based upon Trew's confidential information. To the extent that exclusive title or ownership rights in the developments may not originally vest in Trew as contemplated hereunder, Seller hereby irrevocably assigns, and agrees to assign to Trew exclusively, without any further compensation, all present and future right, title and interest in and to the developments and related intellectual property rights, and the developments and their related benefits will immediately and automatically be the sole and absolute property of Trew. Seller will execute and deliver to Trew all documents necessary to perfect, document or evidence Trew's right, title and interest in and to each development. Seller hereby irrevocably designates Trew and its agents as Seller's attorneys-in-fact, to act for and on its behalf to execute and file such documents. Unless otherwise specified in this Purchase Order, Seller will obtain and assign to Trew a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use any third party intellectual property rights incorporated into, required to use, or delivered with the developments. Seller will deliver copies of the above releases and licenses to Trew upon Trew's request.
Trew may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Goods or Services. Seller shall within 5 days of receipt of a Change Order submit to Trew a firm cost proposal for the Change Order. If Trew accepts such cost proposal, Seller shall proceed with the changed Goods and Services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in Seller's compensation or the performance deadlines under this Agreement. To the extent the Purchase Order relates to Services being performed on a time and materials basis and if a maximum price or not-to-exceed amount is listed in the Purchase Order (each, the “Maximum Price”), then the Maximum Price includes the costs attributable to all further development consistent with the Purchase Order. Such further development does not include changes in scope, systems, quality or grade of materials, finishes or equipment all of which, if required, shall be incorporated by a Change Order.
Seller warrants to Trew that for a period of 24 months from the Delivery Date, all Goods will (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Trew or any additional documentation or proposal that is referenced in any Purchase Order; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Trew;
Seller warrants to Trew that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;
If Seller is a subcontractor to Trew, Seller assumes towards Trew any and all obligations and responsibilities applicable to the Goods and Services that Trew assumes to the customer and any end user under the prime contract for which those Goods and Services are being provided; and
The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Trew's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Trew gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly, but in no event any later than 15 days after such notice, (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Trew, and, if applicable, (ii) repair or re-perform the applicable Services.
Seller shall defend, indemnify and hold harmless Trew, its subsidiaries, affiliates, successors, assigns and customers and their respective directors, officers, direct and indirect equity holders, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the Goods and Services purchased from Seller, (b) Seller's negligence, willful misconduct or breach of this Agreement or (c) any claim that an Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Trew's prior written consent.
Limitations Of Liability
Trew is not liable under any circumstances for consequential, incidental, special, punitive or indirect damages of any kind, including, without limitation, lost opportunities, lost revenue or lost profits.
During the term of this Agreement and for the duration of the express warranties set forth herein, Seller shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers which includes, but is not limited to, commercial general liability (including product liability) providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect the Indemnitees, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Seller further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Seller in the jurisdiction or jurisdictions in which Seller’s operations take place. Upon Trew's request, Seller shall provide Trew with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in these Terms.
Compliance With Laws
Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, Trew may terminate this Agreement with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods or Seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Trew may terminate this Agreement upon written notice to Seller. Trew, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause by providing prior written notice to Seller. Upon receipt of such written notice, Seller will immediately discontinue all work and be entitled to payment of its reasonable costs and expenses actually incurred through the date of termination, which costs and expenses shall be Seller’s sole and exclusive remedy for such termination.
No waiver of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.
The existence and contents of any Agreement, whether or not accepted by Seller, and all non-public, confidential or proprietary information of Trew, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer information or pricing information, disclosed by Trew to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Trew in writing. Upon Trew's request, Seller shall promptly return all documents and other materials received from Trew. Trew shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
Intellectual Property Ownership
Trew shall retain ownership of all intellectual property rights it provides to Seller. Seller shall retain ownership of all intellectual property rights, including those embodied in the Goods or Services, it supplies or develops under this Agreement. Notwithstanding the foregoing, Seller hereby grants to Trew a non-exclusive, irrevocable, assignable and royalty free license to use all intellectual property rights embodied in the Goods or Services throughout the world in any of Trew’s or its customers’ locations.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement, whether by sale of all or any portion of its assets, merger, consolidation, or any similar transaction or series of transactions involving the direct or indirect ownership of a majority of Seller’s equity or voting power or other rights that represent the power to direct the management or policies of Seller, without the prior written consent of Trew. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Seller of any of its obligations hereunder. Trew may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Trew's assets.
Relationship Of The Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law; Venue
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Purchase Order, provided that any Notice to Trew shall also be sent to Trew, LLC, 5855 Union Centre Blvd, Suite 100, Fairfield, Ohio 45014, Attn: Legal Department or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Indemnification, Compliance with Laws, Confidential Information, Intellectual Property Ownership, Governing Law, Venue, and Survival.
Amendment And Modification
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. If Trew modifies or otherwise amends these Terms without notice to Seller, the Terms in effect on the date of a Purchase Order shall apply to such Purchase Order and Trew and Supplier shall not be subject to the modified or amended Terms with respect to such Purchase Order. Subsequent Purchase Orders are subject to the Terms in effect on the date of such Purchase Order. Previous versions of these Terms that apply to specific Purchase Orders issued to Seller will be made available upon a request made in accordance with the Notice provisions above.