CSX Purchasing & Materials General Terms and Conditions
Seller is required to review and understand the CSX Purchasing & Materials (P&M) General Terms and Conditions set forth herein (the “General Terms”) and such other Purchaser-approved purchase order, invoice, or applicable EDI transmission (each and collectively, the “Purchase Order”). In accepting, the Purchase Order, the Purchaser and Seller acknowledge and agree they are entering into a binding agreement consisting of the Purchase Order together with the General Terms (together, this “Agreement”).
For the purposes of the General Terms, “Purchaser” shall mean only the entity listed as the purchaser on the Purchase Order, which shall be CSX Transportation, Inc. (“CSXT”), CSX Intermodal Terminals, Inc. or their respective affiliates, and “Seller” shall mean the supplier, vendor, service provider, or other contractor listed on the Purchase Order.
Goods and Services
Seller agrees to provide the goods (the “Goods”) and services (the “Services”) described in the Purchase Order, in accordance with the quantities and specifications as set forth therein.
The Goods and/or Services provided under this Agreement must be filled at a price or prices no higher than those indicated on the front of the Purchase Order. In the absence of such indication of price by Purchaser, Seller must fill the Purchase Order at a price no higher than the price last quoted or charged to Purchaser.
Seller will accept valid sales and compensating use tax-exemption certificates or direct payment permits in lieu of charging such state and/or local taxes. Any privilege, license or gross receipts tax for the account of Seller will not be charged to Purchaser.
Terms of Payment
Purchaser shall pay the net amount within 30 days of receipt of a valid invoice from Seller. For the purpose of calculating payment terms on an electronically transmitted invoice, the date of the transmission confirmation will be deemed the date the invoice was received.
With respect to the purchase of the Goods, no charge will be added for packing, boxing or cartage unless otherwise stipulated herein. A packing list bearing Purchaser's name, address, purchase order number and stock control number(s) must be placed in each packing container. Purchaser's weight and/or count shall be accepted as final and conclusive on all shipments not accompanied by such packing list.
Unless otherwise stated on the front of the Purchase Order, the routing instructions set forth in the Instructions for Shipping Materials shall apply to all shipments pursuant this Agreement. Routing questions should be directed to 904-359-3535.
Seller shall not overload railcars or containers, or load a railcar or container beyond its load-dimension limits. The acceptance by CSXT, CSX Intermodal Terminals, their respective affiliates, or other transportation provider of a railcar, container, bill of lading or other document shall not be a waiver of these prohibitions.
Title and risk of loss
Unless specifically agreed otherwise in writing, title to and risk of loss of all Goods furnished hereunder shall remain with Seller until receipt and acceptance of the Goods at Purchaser's location. Notwithstanding any restrictive legends to the contrary, title to plans, drawings and specifications with respect to the Goods shall be vested in Purchaser and may be used by Purchaser for any purpose.
If Purchaser discloses or grants access to Seller to any research, development, technical, economic or other business information of a confidential or proprietary nature, whether reduced to writing or not, Seller agrees not to disclose such information to any person at any time without Purchaser's prior written consent.
Seller expressly warrants that: (1) all Goods will conform to plans, drawings, specifications or samples furnished by Purchaser or furnished by Seller and approved and accepted by Purchaser, it being understood that such plans, etc., are incorporated by reference and made a part hereof; (2) all Goods will be of merchantable quality, fit and sufficient for the purpose ordered and will be free from defects, latent or patent, in material and workmanship; (3) all Services will be performed in a workmanlike, efficient and safe manner and will conform to standards generally accepted in the trade or industry involved; and (4) it has clear title to the Goods, and the Goods are and will be free from any security interest, lien or encumbrance.
Work on Purchaser’s Premises
If work in connection with the Goods or Services purchased hereunder is to be performed on Purchaser's premises by Seller, the following terms and conditions shall apply:
- In accepting the Purchase Order, Seller agrees that: (1) it will indemnify and hold harmless Purchaser from any and all claims, liabilities, obligations and causes of action arising from such performance or sale; and (2) shall defend any suit brought against Purchaser and shall pay all damages, costs and expenses in connection with such action for injury to or death of any person or for damage to or destruction of any property howsoever caused including damage resulting from the performance or lack or performance of Seller in connection with the Goods or Services purchased hereunder.
- Seller agrees to furnish evidence of adequate insurance coverage of commercial liability, automobile liability, property damage liability and workers’ compensation acceptable to Purchaser. Seller shall name Purchaser (and its affiliates, as necessary) as additional insured and shall waive subrogation.
- Seller agrees that all persons it compensates shall be deemed to be its employees for all purposes, including any tax or contribution levied by federal, state and/or local governments.
- Seller agrees to comply with all rules and regulations established by Purchaser.
Patents, Trademarks; Copyrights
Seller warrants that: (1) the Goods and/or Services purchased hereunder as well as the production, sale and use thereof, do not and will not infringe any third party patents, trademarks, trade secrets or copyrights; (2) Seller will at its own expense defend any suit that may arise in respect thereto; and (3) Seller will defend, indemnify and hold harmless Purchaser, its parents, subsidiaries, affiliates, successors and assigns and their respective customers from all loss, damage, cost and expense, including attorneys' fees, which may result from the assertion of any infringement by any person. If any Goods and/or Services are or are likely to be the subject of a claim of infringement, Seller shall procure, at no additional cost to Purchaser, the right to continue to use the Goods and/or Service.
The laws of the state of Florida shall govern this Agreement. The parties to this Agreement specifically intend that the provisions of Article 2 of the UCC of Florida will control as to all aspects of this Agreement, except where inconsistent with the terms of this Agreement. Seller agrees to comply with all federal, state, county, municipal or other governmental laws, orders, or regulations (U. S. or foreign) and all industry standards in connection with this Agreement including, but not limited to: the provisions of the Occupational Safety and Health Act of 1970 (including the provision of Material Safety Data Sheets); Fair Labor Standards Act; Social Security and Worker's Compensation Laws; Equal Opportunity Clause prescribed in 41 CFR 60-1.4; Affirmative Action Clause prescribed in 41 CFR 60-250.4 regarding disabled veterans and veterans of the Vietnam Era; Affirmative Action Clause for Handicapped Workers prescribed in 41 CFR 60-741.4; 48 CFR Chapter 1 Subpart 19.7 regarding Small Business and Small Disadvantaged Business Concerns; Affirmative Action Compliance Program (41 CFR 60.17); and 41 CFR 60-1.8 prohibiting segregated facilities. Seller agrees to defend, indemnify and save Purchaser harmless if Seller fails to comply with the foregoing, and in the event of such failure Purchaser may, in addition to any other rights it may have hereunder, at law or in equity, terminate this Agreement.
Seller shall indemnify, hold harmless and defend Purchaser, its officers, agents, employees, parents, subsidiaries, successors and assigns against any loss, cost, damage or expense including attorney's fees arising out of any claim or charge for personal injury, death or property damage asserted against Purchaser attributable to the manufacture, sale or delivery of the Goods or performance of the Services. This indemnity shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability or other tort. This indemnity shall survive delivery and acceptance of the Goods or Services.
If any of the Goods or Services are found within a reasonable time after delivery to Purchaser to be defective in material or workmanship or otherwise not in conformity with the requirements of this Agreement, Purchaser, in addition to any other rights which it may have hereunder, at law or in equity, may, at its option (a) reject and return such Goods at Seller's expense, in which event Seller shall either issue a full refund to Purchaser for all monies paid to Seller or replace such Goods, depending upon the written instructions issued by Purchaser; or (b) upon notice to Seller, take such actions as may be required to cure all defects and/or bring the Goods into conformity with all the requirements of this Agreement, or procure replacement goods from an alternate supplier, and in any of the foregoing circumstances. Any and all damages, costs and expenses incurred by Purchaser in the exercise of its rights under this clause shall be promptly reimbursed by Seller. All rights and remedies of Purchaser, whether provided by this order or by law shall be cumulative and may be exercised singly or concurrently.
Waiver by the Purchaser of a breach of any of the terms and conditions hereof or of any contract resulting from this purchase shall not be construed as a waiver of any other breach.
Purchaser may terminate this Agreement without penalty or payment of termination charges, if Seller (1) fails to make delivery as specified, or within a reasonable time if no time is specified; or (2) fails to comply with any other provision of this Agreement. Purchaser also may cancel any unfilled portion of this Agreement at any time without cause upon giving Seller written notice. On such notice, Seller shall immediately discontinue the manufacture or delivery of the Goods or the performance of the Services, thereafter doing only such as may be necessary to preserve and protect work already in progress, or as otherwise specified by Purchaser in such notice. Thereafter, Seller shall be entitled to compensation for its reasonable costs properly allocable to the cancellation but not for any profits for the portion of the Goods not provided and/or the Services not performed.
Fires, floods, strikes, acts of terrorism, war, acts of God, lockouts, epidemics, accidents, shortages of transportation, any governmental warnings that either party might reasonably rely upon that would curtail their operations, or any other causes beyond the reasonable control of the parties that prevent a party from performing its obligations hereunder, shall operate to suspend such obligations during the period required to remove such cause or causes, subject, however, to Purchaser's right of termination as stated above.
In the event Seller shall file a voluntary petition in bankruptcy, or a petition in bankruptcy shall be filed against Seller, or Seller shall make an assignment for the benefit of its creditors, or Seller shall apply for relief in any form as a debtor under any statute of the United States or law or regulation of any other governmental authority or any other proceeding under any statute of the United States or law or regulation of any other governmental authority seeking the relief or readjustment of Seller's indebtedness shall be commenced, then Purchaser shall have the right to forthwith to terminate this Agreement or so much thereof as has not been completed.
Assignment by Seller of this Agreement or the Purchase Order or any interest herein or any payment due or to become due hereunder, without the prior written consent of Purchaser, shall be void.
Conflict of Conditions
It is agreed that: (1) any different terms or conditions in Seller's quotation or acknowledgement of the Purchase Order are not binding on Purchaser unless accepted in writing by Purchaser; and (2) shipment of any Goods or rendering of any Services pursuant to the Purchase Order shall be deemed to constitute acceptance of the terms and conditions of this Agreement. No modification or release shall be binding unless mutually agreed to in writing. Further, in the event the terms and conditions of the General Terms conflict with the terms and conditions of the Purchase Order, the terms and conditions of the Purchase Order shall govern.
Materials deemed hazardous will be packaged, marked and shipped by Seller in compliance with all federal, state and local regulations then in effect and will further comply with any special requirements as might be noted on the face of the Purchase Order.
U.S. Environmental Protection Agency Toxic Substance Control Act
Seller warrants that no chemical on the list of prohibited chemical substances compiled and published by the Administrator of the U.S. Environmental Protection Agency pursuant to the Toxic Substances Control Act is contained in or constitutes the Goods or packaging sold or transferred to the Purchaser, and Seller further warrants that the Goods and packaging are otherwise in compliance with said Act.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled through binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Exclusive venue for such arbitration shall be Jacksonville, Florida.