PGC GENERAL TERMS AND CONDITIONS OF PURCHASE
5732 Lincoln Drive, Edina, Minnesota, Hennepin County, United States of America
PGC is compliant with current standards for ISO9001 and AS9100. PGC’s expectation is that our external providers will conform to applicable requirements and will flow down said requirements to the Sellers SubSeller.
External Provider is the Seller.
Buyer is PGC with principal place of business at 5732 Lincoln Drive, Edina, Minnesota 55436, USA.
Seller is the provider of goods and/or services set forth under this Purchase Order.
SubSeller is the Seller’s external provider.
Federal Acquisition Regulations “FAR” clause or Defense Federal Acquisition Regulation Supplement “DFARS” clause – if called out directly or by reference, the term “Contractor” means “Seller” and where noted to derive proper meaning in a subcontract situation “Contracting Officer” means “Buyer” and “Government” means “Buyer or the Government.”
Purchase Order is any contract (including but not limited to – Purchase Order, Adoption Purchase Order, Release, GTA, or LTA) which incorporates by reference these General Terms and Conditions of Purchase.
Product includes any product or service specified in a Purchase Order to be delivered by Seller to Buyer under this General Terms and Conditions of Purchase.
General Terms and Conditions of Purchase are the Terms set forth herein.
PURCHASE ORDER OF PRECEDENCE. In the event of conflict between these General Terms and Conditions of Purchase and provisions set forth herein (such as, but no limited to: statements of work, planning, etc., specifications or drawings applicable thereto, the Purchase Order of precedence shall be as follows: (1) Purchase Order; (2) General Terms and Conditions of Purchase; (3) Product Specifications; and (4) Drawings. (Should any conflict arise, Seller shall contact Buyer for specific clarification.)
- Acceptance. This Purchase Order contains the complete Purchase Order between the Seller and Buyer and expressly limits acceptance to its terms. Buyer expressly objects to and expressly rejects any provisions additional to or different than the terms hereof that may appear in Seller’s quotation, acknowledgement, confirmation, invoice or in any other prior or later communication from Seller to Buyer unless such provision is expressly agreed to by Buyer in Writing signed by Buyer.
- Configuration Control or Modifications. Seller is responsible to notify Buyer in writing, WITH AT LEAST 90 DAYS ADVANCE NOTICE, about their intent to change material sources, process or process flow at existing material sources, process control plan, equipment, metrology, packaging or product specifications and request prior written approval by Buyer. If such approval is granted, all part numbers and the originals of all drawings and data shall be revised accordingly. Seller will place the above requirement on all its subcontracts for Seller identified purchased equipment whether such equipment is supplied to Seller as an end item or as a component part of an end item. Unplanned changes (example sub-Sellers going out of business, etc.) should be notified as soon as the information is available. PGC’s expectation is that Sellers are proactively monitoring their supply chains through Purchase Orders to anticipate unplanned events as much as possible.
- Delivery; Quality Assurance and Inspection; Rejected Products, Records Retention. Time is of the essence. If delivery is not expected to be made on-time, Seller will notify Buyer and will take all reasonable steps at Seller’s own cost to expedite delivery; however, Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel this Purchase Order by notice to Seller and arrange for completion and/or purchase of substitute items elsewhere. All risk of loss during carriage/transportation shall be the responsibility of Seller and the Products will be considered delivered only upon receipt of Buyer’s named place of delivery in conformance with the terms and conditions of this Purchase Order. Transportation delivery is according to Purchase Order directions. Any deviations shall be communicated and approved, in advance, by Buyer. All materials shall be suitably packed, marked, loaded and shipped in accordance with the requirements of common carriers. Damage to any material not so packed will be charged to Seller. No charge shall be made by Seller for packing, boxing, drayage, loading or storage, unless otherwise stated herein. Delivery window tolerance is five (5) days early, zero (0) days late. If Seller deliveries fail to meet the schedule specified by Buyer with the result that Buyer is compelled to call upon Seller to ship by other designated instructions to expedite delivery, Seller shall assume the difference for the additional cost of transportation. Seller shall not manufacture or purchase materials of Seller’s required flow time or deliver any materials in advance of schedule set forth in the Purchase Order without Buyer’s written permission. Seller agrees to notify Buyer in writing of any potential delay in schedule. Goods delivered under the Purchase order in excess of ten (10) percent of the amount Purchased herein shall be returned to Seller or retained by Buyer at no cost to Buyer. Quality Assurance and Inspection: Seller shall maintain its quality system in compliance with Buyer’s Supplier’s Quality Requirements. Buyer requires Certificates of Conformance or Certificate of Analysis along with Lot Traceability. When a material specification is referenced on the part call-out; Supplier shall include on the certification that the supplied material meets that standard. Where applicable, indicate on the certification a cure date, Batch number, and compound number(s). All costs associated with source inspection by an approved inspection provider, will be borne by Seller without impact to established pricing. Where applicable, Seller shall permit representatives of Buyer, its customers, the FAA, or pertinent government regulator agencies, to conduct quality system and/or product audits as may be requested by Buyer to evaluate quality compliance at the Seller’s facility and/or any of Seller’s sub-tier Seller’s facilities. Seller shall include substance of this clause in all subcontracts issued hereunder. Work performed under the Purchase Order is subject to Seller’s inspection methods and/or any of Seller’s sub-tier Sellers, and inspection records are retained by Seller or Seller’s sub-tier contractor. Buyer may at its discretion and for such period as it deems necessary locate a resident representative at the Seller’s premises. Buyer’s representative shall be allowed access inter alia to all work areas, status of the Product, internal programs, charts, reports and reviews as necessary to assure timely co-ordination and conformance with the Purchase Order. Seller shall provide reasonable facilities for the safety and convenience of said representatives commensurate with those provided to a member of his/her own staff of a similar standing. Such facilities and equipment shall be provided free of charge. Seller shall include the substance of this clause in subcontracts issued hereunder. Each Product will be subject to final inspection and acceptance by Buyer at destination not withstanding that title may have passed to Buyer, Buyer may have made a prior payment or that Buyer, its customer or the Government may have performed some type of source inspection. If at any time any of the items are found to be defective in material or workmanship or not in conformity with the drawings, specifications, samples, or other requirements of the Purchase Order, in addition to notifying Buyer, Buyer may, in addition to any other rights it may have under the Purchase Order or otherwise (i) correct or have corrected the nonconformity at Seller’s expense or reject and return said item to Seller, and (ii) recover by offset or otherwise any and all costs, expenses and damages paid, incurred or suffered by Buyer as a result of or relating to holding, return, replacement, correction or rejections of nonconforming items. Rejected articles may be returned at Seller’s risk and expense. The Seller shall be responsible for the cost of transportation related to the return and reshipment of any articles rejected by Buyer for failure to meet specifications. Delivery of defective parts shall not be deemed to satisfy the delivery schedule required herein nor shall acceptance of any item be deemed to alter or affect the obligation of Seller or the rights of Buyer under the Warranties article of the Purchase Order. The inspection, review or approval by Buyer or any work, drawing, design, or other document shall not relieve Seller of any of its obligations under the Purchase Order or constitute a waiver of any defects or non-conformities in any Products. Rejected Products: Products rejected and returned shall not be replaced by Seller without prior written authorization of Buyer. The Products shall be subject to inspection and testing by Buyer before and after receipt. Any Product furnished and the time and manner or delivery thereof must comply precisely with the terms of this Purchase Order. Records Retention: Seller shall maintain records documenting product compliance to all applicable procurement documents, drawings, specifications, and standards for a period of seven (7) years after Purchase Order completion.
- Assignment and Delegation. Seller shall notify and obtain prior written approval from Buyer prior to subcontracting any material portion of work to be performed under this Purchase Order. Seller shall include as part of its subcontracts those elements of the Purchase Order that protect Buyer’s rights including but not limited to right of entry provisions, proprietary information, rights provisions and quality control provisions. In addition, Seller shall provide to its subcontractors sufficient information to document clearly the work being performed by Seller’s subcontractor as to facilitate performance under the Purchase Order issued hereunder.
- Warranties. Seller warrants that all articles, materials, work or services furnished hereunder shall be free from defects in material and workmanship and that all items furnished will conform to applicable specifications, drawings, samples and/or other descriptions. Unless manufactured pursuant to detailed design furnished by Buyer, Seller assumes design responsibility and warrants the items to be suitable for the purpose intended. The warranties of Seller together with its service warranties and guaranties shall run to Buyer, its assigns and each successive customer. In addition, Seller agrees to pass any warranty benefits to Buyer that Seller receives from its Sellers of any item Purchase Ordered hereunder.
- Intellectual Property/Patents. Seller warrants that the Products and the sale and use of them will not infringe any United States or foreign patents, trademarks, trade dress, copyrights, trade secrets or any other form of intellectual property that Buyer provides to Seller are Buyer’s exclusive property and Seller disclaims all rights in same. Where payment is made for experimental, developmental, or research work, as such, to be performed in accordance with special requirements of Buyer, Seller agrees to disclose and on request to assign to Buyer each invention, property right, confidential process or know-how, and trade secret resulting therefrom or other form of intellectual property and Seller shall disclaim all rights in same. All drawings, art work, special Products, materials, information or data furnished by Buyer and all intellectual property resulting from this Purchase Order (as referenced in the foregoing sentence) are Buyer’s exclusive property, shall be used by Seller only for Buyer’s work, shall be deemed Buyer’s Proprietary Information as defined in Section 13 below, and shall be kept confidential, pursuant to the terms of Section 13 below, and shall be returned promptly at Buyer’s request. Buyer will market, distribute and/or sell the Products under its own trademark and trade name. Buyer has the right to use any of Seller’s marks, names, other trade identities, copyrighted works or other intellectual property, to the extent that Seller has incorporated such property in or used such property in the manufacture of the Products supplied by Seller to Buyer.
- Invoices; Price; Extra Charges; and Payment, Invoices shall be forwarded to PGC, 5732 Lincoln Drive, Edina, MN 55436 Accounts Payable Department, or emailed to firstname.lastname@example.org. Invoices sent to other departments are honored. (a) Taxes to be paid by Buyer, if any, must be itemized and separately stated as to type of tax (such as State Sales Tax, etc.) Invoices will not be honored unless a certification appears thereon that the goods were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and of regulations and Orders of the U.S. Department of Labor issues hereunder. (b) Seller provides invoices in English and in U.S. Dollars Only. Invoices include information from the PGC Purchase Order including Seller Product Part Number and Description, Price and Extended Price, Date of Sale, Inco Terms, Country of Origin. (d) Payment of Seller’s invoice may be offset for any damaged, defective, or incorrect product unless a credit memo is forwarded to Accounts Payable Department, or emailed to email@example.com. Payments Terms are net forty-five (45) days, payment due dates including discount periods, shall be computed from (1) the date of receipt of the Product, (2) the date of receipt of a correct (proper) invoice.
- Compliance with Applicable Laws. (a) Seller represents, warrants and covenants that all of the Products and materials delivered hereunder will be and will have been produced and/or provided in compliance with all applicable laws, rules, regulations, Purchase Orders, treaties and other requirements of federal/national, state/provincial and local governments and agencies thereof, including, without limitation, those relating to labor (including, if applicable, all provisions of the U.S. Fair Labor Standards Act of 1938, as amended), health, safety and the environment. If any of the Products are purchased for incorporation into Products sold under a government contract or subcontract, the terms required to be inserted by that contract or subcontract, including any applicable non-discrimination and affirmative action requirements, shall be deemed to apply to this Purchase Order. Seller shall indemnify and hold harmless Buyer from and against all losses, costs, fees and damages arising, directly or indirectly, from any actual or alleged failure by Seller to comply with any federal, state or local statutes or other legal obligations. (b) The Seller shall comply with all laws and regulations governing its performance hereunder, including without limitation, laws relating to import and export of hardware, materials, information, documentation, technical data, including but not limited to specifications, drawings, manuals or software (collectively “Information”), whether or not such information was provided to the Seller by Buyer. Seller certifies to Buyer and represents and warrants that Seller will not import, export, or re-export directly or indirectly, any commodity, or any information, to any country in violation of the laws and regulations of any applicable jurisdiction. Specifically, Seller shall not disclose, send, allow for download or otherwise export or re-export information into or to (i) a national or resident of any country to which the United States has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals, the U.S. Department of State’s Denied Parties List of the United States Commerce Department’s Table of Denial Purchase Orders without prior written approval of the United States Government. Seller agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. Seller agrees to notify Buyer in writing should Seller, or any of its employees working with Buyer, become the subject of such list. Seller agrees to defend, indemnify, and hold Buyer harmless from and against any and all costs and damages incurred as a consequence of Seller’s failure to comply with this clause. (c) To the extent it is applicable to Seller’s Products, Seller shall at all times comply with the Fastener Quality Act (Public Law 101-592 as amended by Public Law 106-34) as amended from time to time (the “Act”). Seller shall defend (with counsel reasonably acceptable to Buyer), indemnify and hold harmless Buyer from any and all claims, demands and causes of action brought by Buyer or by any third Party against Buyer in any manner relating to Seller’s failure to comply with the Act. Seller’s indemnity shall include, but not be limited to, reimbursement of any costs associated with any return, recall or retrofit of parts sold under this Purchase Order which are not in compliance with the Act.
- Indemnity. Seller shall be an independent contractor and agrees to indemnify and hold harmless Buyer, its officers, directors, affiliates and employees from any cost, damage, expense or other loss or liability incurred or paid, arising out of or on account of claims of or suits whether in law or in equity which may be asserted or brought against any of the indemnified parties hereunder, for property damage or destruction, personal injury or death or any other damages of whatsoever nature or kind, including claims of consequential loss and breach of contract, in any way related to Seller’s work, its products or its workmanship, or the actions or omissions of the Seller or its employees, agents, or subcontractors, except for claims arising through the claimed sole and exclusive negligence of Buyer. Seller agrees to pay or reimburse Buyer for any expenditures, including reasonable attorney’s fees and amounts paid in settlement, that Buyer may make or become liable for in connection with the investigation, settlement, defense or otherwise by reason of such claims or suits and, if requested in writing by Buyer will defend any such suits with counsel acceptable to Buyer at the sole cost and expense of Seller; Seller agrees to pay and to discharge any judgment, Orders or decrees rendered or entered against any of the indemnified parties for any matter indemnified hereunder; Buyer may retain any money due or to become due to Seller sufficient to reimburse Buyer against any such claims, demands, judgments, or liability. At all times during the term of this Purchase Orders and as long thereafter as there are Products in service by Buyer’s customers Seller shall effect and maintain adequate insurance for Products, Comprehensive General Liability, workers Compensation, and any other required by federal, state or local law.
- Compliance Integrity. Seller warrants that neither it nor any of its employees or representatives have offered or given, or will offer or give any gratuities to Buyer’s employees, agents or representatives for the purpose of securing this Purchase Order or securing favorable treatment under this Purchase Order.
- Compliance with Statutes; Government Regulations; and Export Controls. (a) Seller warrants that in the performance of work under the Purchase Order, it has complied with or will comply with all federal, state and local laws and ordinances and all lawful Purchase Orders, rules and regulations thereunder, including, as applicable. Seller shall indemnify and hold harmless Buyer from and against all losses, costs, fees and damages arising, directly or indirectly, from any actual or alleged failure by Seller to comply with any federal, state or local statutes or other legal obligations. (b) The Seller shall comply with all laws and regulations governing its performance hereunder, including without limitation, laws relating to import and export of hardware, materials, information, documentation, technical data, including, but not limited to specifications, drawings, manuals or software (collectively “Information”), whether or not such information was provided to the Seller by Buyer. Seller certifies to Buyer and represents and warrants that Seller will not import, export, or re-export directly or indirectly, any commodity, or any information, to any country in violation of the laws and regulations of any applicable jurisdiction. Specifically, Seller shall not disclose, send, allow for download or otherwise export or re-export information into or to (i) a national or resident of any country to which the United Sates has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals, the U.S. Department of State’s Denied Parties List of the United States Commerce Department’s Table of Denial Purchase Orders without prior written approval of the United States Government. Seller agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. Seller agrees to notify Buyer in writing should Seller, or any of its employees working with Buyer, become the subject of such list. Seller agrees to defend indemnify, and hold Buyer harmless from and against any and all costs and damages incurred as a consequence of Seller’s failure to comply with this clause. (c) To the extent it is applicable to Seller’s Products, Seller shall at all times comply with the Fastener Quality Act (Public Law 101-592 as amended by Public Law 106-34) as amended from time to time (the “Act”). Seller shall defend (with counsel reasonably acceptable to Buyer), indemnify and hold harmless Buyer from any and all claims, demands and causes of action brought by Buyer or by any third Party against Buyer in any manner relating to Seller’s failure to comply with the Act. Seller’s indemnity shall include, but not be limited to, reimbursement of any costs associated with any return, recall or retrofit of parts sold under this Purchase Order which are not in compliance with the Act.
- Government Contracts. When a Government contract number or the word “ASD” appears on the face of the Purchase Order, the terms and conditions for Government Contracts referenced on the face of the Purchase Order and attached hereto apply to the Purchase Order.
- Priorities, Allocations, and Allotments. If a Government priority rating is shown on the face of the Purchase Order, the Seller shall follow the provisions of the Defense Priorities and Allocation System (DPAS) Regulation (15CFR700) FAR 52.211014/-15 and all other applicable regulations and Purchase Orders of the Office of Strategic Industries and Economic Security, Department of Commerce, in obtaining controlled materials and other Products needed to fill the Purchase Order.
- Ethics Requirements. Buyer is committed to conducting business fairly, impartially and in an ethical and proper manner. Buyer’s expectations are that Seller will also conduct business fairly, impartially and in an ethical matter, and that Seller will have (or will develop) and adhere to a code of ethical standards.
- Applicable Law, Forum, and Disputes (Domestic U.S. contracts). Seller and Buyer agree that the Purchase Order shall be deemed to be made and executed in the State and County shown in Buyer’s address, printed on the face of the Purchase Order, regardless of the Purchase Order in which the signatures of the parties shall be affixed hereto and the Purchase Order(s) and performance hereunder shall be governed, interpreted and construed in accordance with the laws of the State of Minnesota (without regard to any conflict of law rules which might require or allow the application of the law of any other jurisdiction). Any action or claim relating to or arising out of any dispute hereunder shall be brought in the appropriate State or Federal court in the State of Minnesota and Seller hereby irrevocably consents and submits to personal jurisdiction and venue in any such court. Pending resolution by Purchase Order or final judgment of any dispute, action or claim relating to or arising out of this Purchase Order, Seller shall proceed diligently with performance of this Purchase Order in accordance with Buyer’s decision and direction. If the Seller is a non-U.S. Domestic entity, then the following clause shall apply:
- Applicable Law and Arbitration – International Purchase Orders. (a) This Purchase Order shall be interpreted and enforced in accordance with the substantive laws of the State of Minnesota without regard to any conflict of law rules which might require or allow the application of the laws of another jurisdiction). The parties specifically agree that this Purchase Order will not be governed by the United Nations convention of Contracts for the International Sale of Goods. This Purchase Order shall be governed by the English text thereof and shall be interpreted in accordance with the commonly understood and ordinary meaning of the words and phrases used herein, in the United States of America. (b) In the event of any dispute whether in Tort, contract or otherwise arising out of or relating to the existence, validity, construction, breach or termination of this Purchase Order, the parties shall endeavor to resolve such dispute amicably by negotiation. (c) In the event that such dispute cannot be resolved, it shall be finally settled by arbitration. (d) Arbitration shall be held in the City of Minneapolis, Minnesota, unless otherwise agreed to in writing, and administrated by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. Should the parties fail to agree on a mutually acceptable arbitrator(s) within (30) days form the date of the demand for arbitration, then the parties agree to accept an arbitrator(s) appointed by the AAA in accordance with the said rules. The proceedings shall be conducted in English. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Pending resolution by Purchase Order or final judgment of any dispute, action or claim relating to or arising out of the Purchase Order or related Purchase Order, Seller shall proceed diligently with performance of the Purchase Order or related Purchase Order in accordance with Buyer’s decision and direction. (e) The Parties that a breach of the promises set forth in this Purchase Order would cause irreparable damage to the non-breaching Party and that in the event of such breach the non-breaching Party shall have, in addition to any and all remedies of law or by this Purchase Order, the right to seek an injunction, specific to the performance or other equitable relief, to prevent such breach, before any court of competent jurisdiction. The Parties further agree that any action resulting from breach of this Purchase Order, the non-breaching Party may recover, in addition to its damages, the expenses of such action, including its attorneys’ fees and litigation/arbitration expenses.
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