General Purchase Order Terms and Conditions

1. Applicability.
   (a) These terms and conditions (these “Terms”) govern the purchase of goods (“Goods”) and services (“Services”) by the Buffalo and Fort Erie Public Bridge Authority (the “Buyer) from the seller (the “Vendor”) named on the face of the purchase order accompanying and/or incorporating these Terms (the “Purchase Order”). Buyer and Vendor are each individually a “Party” and are together the “Parties”.
   (b) Notwithstanding anything in these Terms or in the Purchase Order to the contrary, if a written contract signed by both Parties is in existence covering the purchase and sale of the Goods and Services covered hereby, the terms and conditions of said contract will prevail to the extent they are inconsistent with these Terms.
   (c) Subject to Section 1(b), the Purchase Order 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. This Agreement prevails over, and excludes, any of Vendor’s general terms and conditions of sale, quotations and other commercial documents, regardless of whether or when Vendor submitted its sales confirmation on such terms. This Agreement expressly limits Vendor’s acceptance to the terms of this Agreement. Fulfillment, in whole or part, of the Purchase Order constitutes acceptance of these Terms.
   (d) Buyer may at any time cancel all or any part of a Purchase Order. Upon such cancellation, Vendor will, to the extent and at the times specified by Buyer, stop all work pertaining to the cancelled portion of the Purchase Order, incur no further costs, and protect all property in which Buyer has or may acquire an interest. Buyer will not be responsible for any costs in connection with a cancelled Purchase Order except for payment of the portion of the Goods and Services provided prior to notice of the cancellation, provided that such Goods or Services have been delivered to Buyer and meet the requirements of this Agreement.
   
   
2. Delivery of Goods and Performance of Services.
   (a) Vendor 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 no Delivery Date is specified, Vendor shall deliver the Goods within 30 days after Vendor’s receipt of the Purchase Order. If Vendor fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Vendor and Vendor shall indemnify, defend and hold harmless Buyer and Buyer’s directors, officers, agents and employees (collectively, “Indemnitees”) against any and all losses, claims, damages, injuries, death, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs and expenses, including, but not limited to, reasonable attorneys’ 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, occurring in connection with or attributable to Vendor’s failure to deliver the Goods on the Delivery Date.
   (b) Unless otherwise stated in the Purchase Order or as otherwise agreed in writing by the Parties, Vendor shall deliver all Goods in strict accordance with this Agreement to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Vendor shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Vendor must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material will be made at Vendor’s expense and risk.
   (c) Vendor shall provide the Services to Buyer as described and in accordance with the schedule set forth on the Purchase Order or as otherwise agreed in writing by the Parties, and in accordance with the terms and conditions set forth in these Terms.
   (d) Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder and agrees to timely deliver the Goods and provide the Services, including in strict accordance with all performance dates, timetables, project milestones and other requirements in this Agreement.
   
   
3. Quantity. If Vendor delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods will be returned to Vendor at Vendor’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price (as defined below) for the Goods will be adjusted on a pro-rata basis.
   
   
4. Shipping Terms. Unless otherwise stated in the Purchase Order or as otherwise agreed in writing by the Parties, delivery shall be made DDP (Incoterms 2010) to the Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
   
   
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
   
   
6. Inspection and Rejection of Nonconforming Goods and Services. Buyer has the right to inspect the Goods and Services on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods and Services, and may reject all or any portion of the Goods or Services if it determines the Goods or Services are nonconforming or defective. If Buyer rejects any portion of the Goods or Services, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety; (b) accept the Goods and Services at a reasonably reduced price; or (c) reject the Goods and Services and require replacement of the rejected Goods and Services. If Buyer requires replacement of the Goods and Services, Vendor shall, at its expense, within five business days replace the nonconforming or defective Goods and replace or properly re-perform the noncomforming or defective Services 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 Vendor fails to timely deliver replacement Goods or perform replacement Services, Buyer may replace them with goods or services from a third party and charge Vendor the cost thereof and terminate this Agreement for cause pursuant to Section 17(a). Any inspection or other action by Buyer under this Section will not reduce or otherwise affect Vendor’s obligations under this Agreement, and Buyer will have the right to conduct further inspections after Vendor has carried out its remedial actions.
   
   
7. Price. 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 Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price will be effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
   
   
8. Payment Terms. Vendor shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Vendor within 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in the currency specified in the Purchaser Order. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor. In the event of a payment dispute, Buyer will deliver a written statement to Vendor listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed will be deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 8. The Parties will seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing its obligations under this Agreement notwithstanding any such dispute.
   
   
9. Vendor’s Obligations Regarding Services. Vendor 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 (including, but not limited to, any export licenses);
   (b) comply with all rules, regulations and policies of Buyer, including, but not limited to, security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, 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 records of the time spent and materials used by Vendor in providing the Services in such form as Buyer shall approve; and during the term of this Agreement and for a period of two years thereafter, upon Buyer’s written request, Vendor shall allow Buyer to inspect and make copies of such records and interview Vendor personnel in connection with the provision of the Services;
   (d) obtain Buyer’s written consent, which may be given or withheld in Buyer’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval will not relieve Vendor of its obligations under this Agreement, and Vendor will remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor’s own employees. Nothing contained in this Agreement will create any contractual relationship between Buyer and any Permitted Subcontractor or supplier of Vendor;
   (e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;
   (f) ensure that all persons, whether employees, agents, Permitted Subcontractors or anyone else acting for or on behalf of Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
   (g) 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 as may be specified by Buyer; and
   (h) keep and maintain any Buyer equipment in its possession in good working order and not dispose of or use such equipment other than in accordance with Buyer’s written instructions or authorization.
   
   
10. Change Orders. Buyer may at any time, by written instructions and/or drawings issued to Vendor (each a “Change Order”), order changes to the Services. Vendor shall within 10 days after receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Vendor shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in the Price or the performance deadlines under this Agreement. Vendor will not make any changes to the Goods or Services expect with Buyer’s prior written approval.
    
    
11. Warranties.
    (a) Vendor warrants to Buyer that for a period of 36 months after the Delivery Date, all Goods will:
    (i) be new upon delivery (except as otherwise agreed to in writing by Buyer);
    (ii) be free from any defects in workmanship, material and design;
    (iii) conform to applicable specifications, drawings, designs, samples and any requirements specified by Buyer;
    (iv) comply with all applicable laws and regulations;
    (v) be fit for their intended purpose and operate as intended;
    (vi) be merchantable;
    (vii) be free and clear of all liens, security interests or other encumbrances; and
    (viii) 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 Buyer.
    (b) Vendor warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with the highest industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. Vendor warrants to Buyer that it is in compliance with, and shall perform the Services in compliance with, all applicable laws and regulations. These warranties survive performance of the Services by Vendor.
    (c) The warranties set forth in this Section 11 are cumulative and in addition to any other warranty or condition provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Vendor notice of noncompliance pursuant to this Section 11, Vendor shall, at Buyer’s option and at Vendor’s cost and expense, within 15 days: (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 Vendor and the delivery of repaired or replacement Goods to Buyer; and (ii) replace or properly re-perform the applicable Services.
    (d) With respect to Goods or Services primarily being provided within Canada, the Parties agree that the foregoing warranties and conditions apply in lieu of all implied warranties and conditions, and all implied warranties and conditions are expressly disclaimed.
    
    
12. General Indemnification. Vendor shall indemnify, defend and hold harmless Buyer and the other Indemnitees against any and all Losses arising out of or occurring in connection with the Goods and Services purchased from Vendor or from Vendor’s negligence, willful misconduct or breach of any provision of this Agreement. Vendor shall not enter into any settlement without Buyer’s prior written consent.
    
    
13. Intellectual Property Rights and Indemnification.
    (a) In addition to all applicable implied license rights, Vendor grants to Buyer a non-exclusive, perpetual, fully paid-up, royalty-free, worldwide, transferable license to any and all patents, trademarks, trade dress, mask works, copyrights, designs, trade secret rights and other proprietary rights owned or controlled by Vendor which may be required for Buyer to enjoy full beneficial use of the Goods and Services.
    (b) Vendor shall indemnify, defend and hold harmless Buyer and the other Indemnitees against any and all Losses arising out of or in connection with any claim that Buyer’s or any other Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, trademark, copyright, trade secret or other intellectual property right of any third party. In no event shall Vendor enter into any settlement without Buyer’s or any other Indemnitee’s prior written consent.
    
    
14. Scope of Liability.
    (a) For any breach of this Agreement by Vendor, Vendor will be liable to Buyer for all: (i) direct damages caused by Vendor’s breach; and (ii) consequential, incidental, indirect, special, multiple, exemplary, punitive and other damages (including, but not limited to, loss of revenue, business, savings and goodwill) incurred by Buyer as a result of such breach, regardless of whether Vendor knew about the possibility of such damages and regardless of whether such damages were reasonably foreseeable.
    (b) IN CONNECTION WITH THIS AGREEMENT, BUYER’S TOTAL LIABILITY TO VENDOR SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PRICE ACTUALLY PAID BY BUYER UNDER THIS AGREEMENT, AND BUYER WILL NOT BE LIABLE TO VENDOR FOR ANY INTEREST, PENALTIES OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, MULTIPLE, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, BUSINESS, SAVINGS OR GOODWILL), REGARDLESS OF THE FORM OF ACTION OR THE THEORY OF RECOVERY, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    
    
15. Insurance. During the term of this Agreement and for a period of 36 months thereafter, Vendor shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than U.S. $5,000,000.00 with financially sound and reputable insurers. Prior to providing any Goods or Services to Buyer, and thereafter from time to time upon Buyer’s request, Vendor shall provide Buyer with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Buyer as an additional insured and loss payee. Vendor shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Vendor’s insurance policy. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against Vendor’s insurers and Vendor.
    
    
16. Compliance with Law. Vendor shall comply with all applicable laws, regulations and ordinances. Vendor and its employees shall maintain in effect all the licenses, permissions, authorizations, consents and permits necessary for Vendor to carry out its obligations under this Agreement. Vendor shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement. Vendor assumes all responsibility for all government export or import clearance requirements. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
    
    
17. Termination.
    (a) In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to Vendor, either before or after the acceptance of the Goods or Vendor’s performance of the Services, if Vendor has not performed or complied with any provision of this Agreement, in whole or in part, or pursuant to Section 6. If Vendor 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 Buyer may terminate this Agreement upon written notice to Vendor.
    (b) If Buyer terminates this Agreement pursuant to Section 17(a), Vendor’s sole and exclusive remedy is payment for the Goods received and accepted, and Services accepted, by Buyer prior to the termination.
    
    
18. Statutory Terms. If Goods are being delivered or Services are being performed within the State of New York, Vendor agrees to comply with the requirements set forth at www.peacebridge.com/TERMS and www.peacebridge.com/EEO.
    
    
19. Waiver. No waiver by Buyer of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by Buyer. 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. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    
    
20. Confidential Information; Work Product.
    (a) All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, or operations, disclosed by Buyer to Vendor, 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,” (collectively, “Confidential Information”) in connection with this Agreement is confidential, shall be used solely for the purpose of performing this Agreement, and shall not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Vendor shall promptly return all documents and other materials received from Buyer.
    (b) In connection with providing Goods or Services hereunder, Vendor may create work product, ideas, designs, inventions, developments, drawings, recommendations, innovations or other intellectual property (the “Work Product”). All Work Product is and will remain the sole property of Buyer, and, to the extent derived from or containing Confidential Information, will be deemed Confidential Information of Buyer for purposes of this Agreement. All Work Product will not be deemed confidential information of Vendor. Vendor agrees to execute any and all declarations, affidavits, waivers, assignments and other documents and instruments as may be requested by Buyer to evidence Buyer’s ownership of the Work Product.
    (c) Vendor: (i) acknowledges that its failure to comply with any provision of this Section 20 will cause Buyer irrevocable harm and that a remedy at law for such a failure would be an inadequate remedy for Buyer; and (ii) consents to Buyer’s obtaining from a court having jurisdiction specific performance, an injunction, a restraining order or any other equitable relief in order to enforce such provision. Buyer’s right to obtain such equitable relief is in addition to, and not in lieu of, any other remedy (including, but not limited to, monetary damages) to which Buyer is entitled under applicable law.
    
    
21. Force Majeure. Neither Party will be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by any acts of God, floods, fires, earthquakes, explosions, epidemics, wars, invasions, hostilities, terrorist acts or embargoes. If any such event prevents Vendor from carrying out its obligations under this Agreement for a continuous period of more than 30 days, Buyer may terminate this Agreement upon written notice to Vendor.
    
    
22. Assignment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations (including any assignments or transfer by operation of law or otherwise) under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 22 will be null and void. No assignment or delegation will relieve Vendor of any of its obligations hereunder. Buyer may at any time assign, transfer or delegate any or all of its rights or obligations under this Agreement without Vendor’s prior written consent.
    
    
23. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will 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 will have authority to contract for or bind the other Party in any manner whatsoever.
    
    
24. No Third-Party Beneficiaries. Except for enforcement of Sections 12 and 13 by Indemnitees, this Agreement is for the sole benefit of the Parties, their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will 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.
    
    
25. Governing Law.
    (a) If Goods or Services are primarily being provided in the United States or any other location outside of Canada, all matters arising out of or relating to this Agreement are governed by and will be construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York, subject to the provisions of Section 25(c).
    (b) If Goods or Services are primarily being provided within Canada, all matters arising out of or relating to this Agreement are governed by and will be construed in accordance with the internal laws of the Province of Ontario without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario, subject to the provisions of Section 25(c).
    (c) The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or to any purchase and sale of Goods or Services.
    
    
26. Submission to Jurisdiction.
    (a) If Goods or Services are primarily being provided in the United States or any other location outside of Canada, 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 New York in each case located within Erie County, New York, U.S.A. and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
    (b) If Goods or Services are primarily being provided within Canada, any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Province of Ontario located within Welland, Ontario, Canada, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
    
    
27. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving Party in writing to the other Party. All Notices must be delivered by personal delivery, internationally recognized overnight courier (with all fees pre-paid) or facsimile (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice will be effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 27.
    
    
28. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    
    
29. Survival. 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, Sections 9(c), 11, 12, 13, 14, 15, 16, 17(b), 18, 19, 20, 22, 23, 24, 25, 26, 27, 28 and 29.
    
    
30. 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.
    
    
31. EEO/Affirmative Action Compliance. This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin, or for inquiring about, discussing, or disclosing information about compensation.  Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status.