ANNUAL PURCHASE AGREEMENT
FOR THE PURCHASE OF
PERFORMANCE CONTROLLERS
("Purchase Agreement")
1. DATE AND TERM
This Purchase Agreement is made December 1, 1998, and shall apply to
orders made according to this Purchase Agreement, from December 1, 1998
and shall continue valid until December 1, 2000.
2. PARTIES
(a) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc., (the Purchaser)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.▇.▇. (the Purchaser's primary place of business)
(b) Performance Control, L.L.C., (the Supplier)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the Supplier's primary place of business)
Orders applicable to this Purchase Agreement may be made directly by the
Purchaser or any of the companies listed in Appendix 7 ("Participating
Units"), or subsequently added to the list by the Parties. Any
Participating Unit shall establish its own ordering procedures with the
Supplier.
The Participating Unit and the Supplier shall always communicate
directly regarding any specific Order.
3. APPLICABLE TERMS
The General Terms and Conditions of Purchase, attached as Appendix 5
("GTC"), shall apply and the application of any other general terms and
conditions is specifically excluded.
Annual Purchase Agreement Date: December 1, 1998 Page 1 of 5
13. CONTRACT DOCUMENTS
In the event of any conflict between the provisions of this document and
any Appendix to this Purchase Agreement listed below, or between any two
Appendices, this document shall govern and the Appendices shall be
interpreted in their numbered order.
Appendix 1 Specification - NEMA 1 Dated October 1, 1998
Specification - NEMA 12 Dated October 1, ▇▇▇▇
▇▇▇▇▇▇▇▇ 2 Technical Specification
- "The Performance Control User's Guide" Dated 1998
- Wall Bracket mounting Instructions for Escalators Dated 10/1/98
- Floor/Wall Bracket Mounting Instructions for Escalators Dated 10/1/98
- Field Installation of Remote L.E.D. Indicator Light Kit Dated 10/1/98
- Three Circuits to Guarantee Adequate Voltage to Motor
During Regenerative Power Mode Dated 10/1/98
- Drawing Numbers: - 3134E01 Dated 1/14/98
- DET 00, 10, 20, 30, 40, 50,
60, 70, 80, 90, 100 All
Dated 1/14/98
- 05251N50.00 Dated 7/16/98
- 05251N57.00 Dated 7/16/98
- 05251N58.00 Dated 7/16/98
- 05251N59.00 Dated 7/16/98
Appendix 3 Testing
- Testing Procedures for Three Phase Dated 11/1/97
- Cold Test Procedures for Performance Controller Dated 10/1/98
- Final Test Procedure for Performance Controller Dated 10/1/98
Appendix 4 Performance Bond - Not Required
Appendix 5 General Terms and Conditions of the Purchase
Dated: April 1, 1998 Pages: 12
Appendix 6 Price List
Appendix 7 Participating Units
Appendix 8 Example of Purchase Order Form
Appendix 9 Warranty
Appendix 10 Special Conditions
14 PARTIES REPRESENTATIVES (GTC 7.2)
For the Purchaser: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Purchasing Manager, Branch Support
For the Supplier: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Director
Annual Purchase Agreement Date: December 1, 1998 Page 4 of 5
15. OTHER PROVISIONS
The following additional clauses to the General Terms and Conditions may
apply, as directed by the Purchase Order.
[ Buy America Act (41 U.S.C. 10) ]
[ U.S. Steel Act ]
[ Federal Acquisition Regulations ]
[ Minority Business Utilization (MBE/WBE/DBE) ]
[ Special requirements per State and Local jurisdictions. ]
Except as modified herein, the Purchase Agreement between the parties is hereby
ratified, approved and confirmed.
An instrument in writing, signed by the parties hereto, as amended, may only
further amend this Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Annual Purchase Agreement
as of the day and year first above written. The parties have executed this
Purchase Agreement in two identical copies, one for each party.
SIGNED: "SUPPLIER" SIGNED: "PURCHASER"
PERFORMANCE CONTROL, L.L.C. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ INC.
a Michigan limited liability company a corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member Purchasing Manager, Branch Support
DATE: December 7, 1998 DATE: 12/9/98
WITNESSES:
/s/ [illegible signature] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ [illegible signature] /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Annual Purchase Agreement Date: December 1, 1998 Page 5 of 5
APPENDIX 5: GENERAL TERMS AND CONDITIONS OF PURCHASE ("GTC")
1 Definitions
The following capitalized terms shall have the meanings assigned to
them, unless a different definition is assigned to them in the
Purchase Agreement:
"Delivery"
Completion of the delivery of the Equipment,
including successful completion of the specified
inspections and tests to insure the equipment meets
the requirements set forth in the Purchase Agreement
for the quality and workmanship of the equipment.
"Equipment"
The materials, equipment and all necessary
documentation to be delivered to the Purchaser by
the Supplier, including any specified services to be
performed in connection with the Delivery, such as
installation and testing of the Equipment. (GTC 3.1)
"Supplier"
"Seller" as referenced on the individual ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ Inc. Purchase Orders is same as "Supplier".
"Purchaser"
"Buyer" as, referenced on the individual ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ Purchase Orders is same as "Purchaser".
"Purchase Agreement"
Contract for the purchase of (goods or services) by
KONE Corporation, including its subsidiaries.
"End User"
Legal entity responsible for the use of the
installed product furnished by KONE and its
subsidiaries.
"Project Destination"
Installed location of the product furnished by KONE
and its subsidiaries.
"Participating Units"
Business unit (including international subsidiaries)
within KONE Corporation which participates in the
purchase of goods or services covered by the
Purchase Agreement.
2 PAYMENT
2.1 Payment Terms
Unless otherwise agreed to in Article 7 of the Annual Purchase
Agreement, payment shall be made within 40 days after delivery of
material and receipt of invoice, (original and one copy), with prices
and extended. Supplier shall render separate invoices for each and
every shipment. Supplier shall render a monthly statement no later
than the 5th of the month following shipment of goods. Under no
circumstances shall Purchaser pay any late, interest, carrying or
other charges with respect to any amounts invoiced to Purchaser for
goods ordered under the Purchase Agreement.
3 EQUIPMENT
3.1 Scope of Delivery
The Equipment shall be completed to meet the Specification attached
to the Purchase Agreement ("Specification") and shall be delivered to
the Purchaser within the period allowed for the Delivery. The
Equipment shall be deemed to include any equipment and services which
are necessary for the Delivery and the intended use of the Equipment,
regardless of whether or not it is specifically identified in the
specification.
Individual deliveries may be changed by Purchaser from time to time
to correspond with the progress of the projects for which goods are
ordered hereunder. Purchaser may change the Delivery date to any date
upon (i) thirty days notice for those portions of this order with a
Delivery date of six months or less from date of the order. If no
Delivery date is shown, Purchaser shall fix a Delivery date by giving
Supplier (i) thirty days notice for deliveries required within the
six-month period following said notice, and (ii) sixty days notice
for deliveries required beyond the six-month period following such
notice.
In accordance with Purchase Order, Supplier shall give Purchaser 24
hours notice of all shipments.
3.2 Modifications
No change or modification of the Purchase Agreement or General Terms
and Conditions shall be made without Purchaser's and Supplier's
specific written consent.
The Purchaser shall have the right to request the Supplier to modify
the Specification at any time. Any adjustment to the Purchase Price
and to the Delivery Time caused by the modification shall be agreed
to via a written change order. The rights and obligations of the
parties under the Purchase Agreement shall extend to all
modifications.
3.3 Documentation
The Supplier shall provide the Purchaser with documentation
concerning Equipment in accordance with the Purchase Agreement. Upon
a reasonable request by the Purchaser, the Supplier shall deliver
additional instructions and documentation to enable the orderly use,
installation and servicing of the Equipment.
The Purchaser shall have the right to use all documentation that has
been placed at his disposal, for any authorized purpose and to place
such documents at the disposal of authorities, the End User, or any
other third party, as necessary in such connection.
Supplier shall accept individual Purchase Orders and agree to the
terms hereof (i) signing and returning the Acknowledgment Copy of
the Purchase Order hereof, or (ii) furnishing Purchaser with any
other writing indicating its acceptance, or (iii) performance by
Supplier in accordance with the Purchase Order. However, the receipt
from Supplier of any acceptance or any document purporting to be an
acceptance of the Purchase Order, or receipt of goods shipped or work
performed under the Purchase Order or payment therefore, does not
constitute an assent by Purchaser to any terms, which are different
from or additional to the instructions, Terms and Conditions on the
Face and Reverse Side of the Purchase Order, unless expressly
assented to in writing by Purchaser. The Purchase Order is revocable
at any time prior to acceptance. Without limiting the foregoing,
Purchaser's receipt of any invoice from Supplier, before or after
Supplier's delivery of goods described herein, shall not obligate
Buyer to any terms in such invoice which differ from or are in
addition to the terms contained herein.
3.4 Inspections and quality control
Both the Purchaser and the End User shall be allowed free access to
the facilities of the Supplier at all reasonable times for the
purpose of inspecting, expediting, or testing the Equipment and the
quality thereof and witnessing tests which may have been agreed upon.
The costs of carrying out of any tests and inspections shall be borne
by the Supplier. The cost of attending shall be borne by the
attending party.
In addition, if any goods furnished by Supplier shall fail to satisfy
the requirements of the specifications, or shall prove to be
defective in any respect, Purchaser may, at its option, upon notice
to Supplier, (i) require Supplier to promptly correct or replace the
same at Supplier's expense; (ii) correct or replace or arrange to
correct or replace the same, for which Supplier shall reimburse
Purchaser immediately upon demand; or (iii) cancel all or any portion
of this order. If Purchaser elects to cancel, Purchaser shall hold
any goods in its possession affected by the cancellation at
Supplier's risk, to be disposed of in accordance with applicable law,
and Supplier shall refund any payments made on account of the
canceled goods. Furthermore, in the event any goods furnished by
Supplier are or become defective in any respect whatsoever or if
Supplier breaches any of its warranties or obligations hereunder,
Supplier agrees to indemnify and hold harmless Purchaser from any or
all loss, liability, cost or expense (including court costs and
reasonable attorney's fees and expense) by reason of any injury or
damage, whether direct or indirect, consequential, incidental or
otherwise, including all claims of such injury or damage to persons
or property, caused by, relating to or arising from such defect or
breach.
No approval of the Supplier's technical documents or drawings,
inspection, testing of the Equipment, or supervision of design work
or manufacturing, whether by the Purchaser or the End User, shall be
construed as implying any limitation on the obligations and
liabilities of the Supplier.
3.5 Safety
The Equipment shall include all specified safety devices and the
Supplier shall ensure that they fully satisfy the requirements of any
applicable safety regulations and standards. If any additional safety
devices are required, due to a non-compliance with any regulations
and standards, they shall be install at the cost of the Supplier.
Whenever any work is performed at any facility of the Purchaser, the
Supplier shall comply with all applicable safety regulations of the
Purchaser and shall follow any other instructions given by the
Purchaser concerning the safety.
3.6 Compliance with other laws and regulations
The Supplier shall also ensure that the Equipment fully complies with
any other applicable laws and regulations in the end use location for
the installed equipment.
3.7 Change in Laws
If any modification of the Specification is necessary due to an
unanticipated change in laws after the signing of the Purchase
Agreement, the Supplier shall request a modification to be made in
accordance with Article 3.2.
4 DELIVERY
4.1 Shipping, Packing, Marking, & Storage
All shipments are to be made as directed on the front page of the
individual Purchase Order. Notices must be sent to consignee. A
NOTICE must be sent to Consignee covering carload and truckload
shipments within 24 hours of the material being forwarded, giving
number of order, kind of material, shipper's name, car number and
initials and routing. Enclose shipping memorandum in each package or
tack same inside each car door. For less than carload and truckload
shipments, indicate order numbers on all material or packages and
packing slips and Bills of Lading, in space provided on the blanks of
the various railroad, truck and express companies. IMMEDIATELY upon
shipping, mail the Purchaser two (2) copies of tally and shipping
memorandum.
The Equipment shall be packed in a manner which is appropriate with
regard to the means of transport to be used and the nature of the
Equipment and in accordance with any instructions given in the
Specification as to the manner, size, weight, etc. of the packing.
The Equipment shall be clearly marked by the Supplier and carry
information concerning the identity of the recipient and the name of
the place of destination together with any specific instructions
necessary for handling and storage.
4.2 Early Delivery
No Equipment should be delivered or performed prior to the time
agreed in the Purchase Agreement as the earliest time for delivery
without the prior written consent of the Purchaser.
4.3 Hold on Delivery
Purchaser may direct Supplier, from time to time, to hold and store
all or any part of the goods to be delivered hereunder and to await
further delivery instructions from Purchaser. In the event Supplier
holds and stores all or a substantial part of any completed order for
longer than (180) one hundred eighty days, Purchaser will pay
Supplier a storage fee at a rate comparable to that charged by
warehouseman for storing similar size and type goods on similar
premises, for the time the goods are stored after the initial one
hundred eighty days until Purchaser releases equipment for delivery.
4.4 Delay by the Supplier
If Supplier shall fail or refuse to proceed with this order, or if
Supplier shall fail to make delivery of all items within the
specified times agreed upon in the Purchase Agreement or on the
Purchase Order, Purchaser shall have the right to cancel all or any
part of this order. Time is of the essence to this contract. The
Supplier agrees that if the goods ordered are not delivered at the
time and in accordance with purchaser's instructions, and purchaser
pays or incurs any damages, penalty or other charge for a late
delivery or performance under the terms of the aforesaid contract(s)
on account of supplier's late delivery, supplier shall immediately
indemnify and hold harmless purchaser therefore.
4.5 Quantity
The specific quantity ordered on each individual Purchase Order must
be delivered in full. Delivery of any unauthorized quantity is
subject to Purchaser's rejection, and such goods shall be held at
Supplier's risk. Purchaser may return such goods at Supplier's risk,
and all transportation charges to and from the original destination
shall be paid by Seller.
4.6 Transfer of Title
The title to all Equipment or parts thereof shall be transferred to
the Purchaser when the relevant parts have been obtained, or
otherwise identified and separated, by the Supplier, as parts to be
used for the purposes of the Purchase Agreement.
4.7 Transfer of Risk
The Supplier shall bear the risk of loss of the Equipment until the
Delivery of equipment is complete and written acceptance by
Purchaser, upon which the risk of loss shall be transferred from the
Supplier to the Purchaser.
4.8 Right to Withhold
The Purchaser may deduct any amount owed by the Supplier from any
payment of the Purchase Price. The Purchaser shall pay the undisputed
amounts payable pursuant to the Purchase Agreement, however, disputed
amounts being payable only after the final settlement of such
disputes.
4.9 Waiver
No waiver by Purchaser of any breach of any provision of the order
shall constitute a waiver of any other breach or provision. No act,
conduct or failure to act of Purchaser shall, constitute a waiver of
any provision contained herein unless such waiver is in Writing,
executed by Purchaser and delivered to Supplier.
5 OTHER RESPONSIBILITIES OF THE SUPPLIER
5.1 Insurance
Supplier shall at all times and at Supplier's cost, maintain a
Comprehensive General Liability Policy including bodily injury and,
property damage coverage and containing a Broad Form Contractual
Liability Endorsement which specifically cover the indemnity under
paragraph 7.2 and the obligation Supplier has accepted hereunder.
This Comprehensive General Liability Policy shall be specifically
endorsed to name Purchaser as an additional insured.
5.2 Supply of Spare Parts
The Supplier guarantees the availability of spare parts for the
Equipment for at least ten (10) years after Delivery of the
Equipment.
5.3 Special Tools
No charge shall be made for patterns, pattern equipment, jigs, dies
and fixtures or special apparatus used in the manufacture of the
Equipment provided by the Supplier.
5.4 Liability for Defects
The Supplier guarantees that the Equipment complies in every respect
with the requirements of the Purchase Agreement and that they are
free from any defect in design, materials, or workmanship. Any
non-compliance appearing during the period to time specified in the
Purchase Agreement as the period starting from the Delivery of
Equipment during which the Supplier shall be liable for any defects
in the Equipment ("Guarantee Period"), shall be corrected by the
Supplier without delay and without any additional cost to the
Purchaser or the End User.
If any repair under the guarantee obligation is made subsequent to
the End User having put the Equipment in service, the guarantee
period in respect of the affected Equipment shall be renewed starting
from the date when the repair work was approved by the End User.
Should the Supplier refuse, or fail, to fulfill his guarantee
obligation to the Purchaser's, or End User's, satisfaction, within a
reasonable period of time, the Purchaser shall be entitled to have
repair or replacement carried out at the Supplier's expense. The same
right shall accrue to the Purchaser, if in case of urgency the
Purchaser finds it inappropriate to wait for the Supplier to carry
out the work.
The Purchaser shall request the consent of the Supplier before
carrying out the repair or replacement work, if time permits. If such
work has been carried out without the consent of the Supplier, the
Supplier will be given opportunity to inspect the repaired or
replaced products to evidence the applicability of the Supplier's
guarantee liability to such work.
The guarantee obligation for the Supplier shall not extend to defects
proved to having been directly caused by wrong or negligent
operation, overloading or inadequate maintenance.
6 BONDS
The performance bond, if required from the Supplier, shall be issued
by any acceptable surety in any agreed from, for the value set in the
Purchase Agreement or Purchase Order to secure the performance of the
obligations of the Supplier. The Performance Bond shall be valid
until the end of the Guarantee Period.
7. LIABILITIES OF THE SUPPLIER
7.1 Liability for Damages
As the Purchaser's international operations demand promptness and
reliability, it is understood that the Supplier appreciates and
accepts the fact that he shall fulfill all of his obligations with
particular care and that even a minor breach may cause considerable
damage to the End User. The Supplier shall particularly undertake to
fulfill his obligations in respect of the timeliness and quality of
the Equipment. Any direct costs incurred by the Purchaser due to any
breach shall be compensated for in full by the Supplier.
If Supplier fails or neglects to perform, keep and observe any term,
provision, warranty or condition contained in the Purchase Agreement,
Purchaser shall have, in addition to any other rights and remedies
contained herein or in any other agreements between the parties, all
the rights of an aggrieved Purchaser under the Uniform Commercial
Code of Illinois or other applicable law, all of which rights and
remedies shall be cumulative, and none exclusive, to the extent
permitted by law. Purchaser may, upon written notice to Supplier, set
off and deduct all or any part of (i) any obligations owing to
Purchaser by Supplier hereunder, and/or (ii) any damages sustained by
Purchaser resulting from any breach of this agreement by Supplier
against any part of the price due under any and all agreements now or
hereafter in effect between the parties.
7.2 Indemnification and Hold Harmless
The Supplier shall defend, indemnify and hold harmless the Purchaser
and the End User against losses and claims for injuries or damage to
any person or property which may arise out of or in consequence of
the performance of any Purchase Agreement or Purchase Order by the
Supplier and against all claims, demands, proceedings, damages,
costs, charges, and expenses in respect thereof or in relation
thereto. Provided that the Supplier's liability to indemnify and hold
harmless the Purchaser as aforesaid shall be reduced proportionately
to the extent that the act or neglect of the Purchaser, his servants,
or agents may have contributed to the said loss, injury, or damage.
7.3 Patents
Supplier warrants that the goods furnished under this order do not
infringe any patent rights. Supplier shall indemnify and hold
harmless Purchaser, its affiliates and their customers from losses,
expenses (including attorneys' fees), claims or liability of any
nature arising out of the infringement or alleged infringement of any
patent on account of the manufacture, sale or use of any goods
furnished hereunder except where compliance by Supplier with
specifications prescribed by and originating with Purchaser
constitutes the sole basis of infringement or alleged infringement.
Supplier, at its expense, agrees to defend any suit brought or claim
asserted against Purchaser, its affiliates and their customers on
account of any such infringement or alleged infringement upon being
notified in writing thereof by Purchaser. If the use of such goods in
enjoined, Supplier shall at its expense make every reasonable effort
to obtain for Purchaser, its affiliates and their customers, a
License to continue to use such goods. If after a reasonable time
Supplier is unable or fails to obtain such license, Supplier shall,
at its expense, either replace such goods with equivalent
non-infringing goods or modify such goods in a manner acceptable to
Purchaser so that they become equivalent, non-infringing goods. If
Supplier fails or is unable to do any of the above, Supplier shall
refund to Purchaser the money or other consideration paid therefor.
7.4 Confidentiality
All drawings and technical documents submitted by the Purchaser to
the Supplier prior or subsequent to the Purchase Agreement, shall
remain the exclusive property of the Purchaser. They may not, without
the Purchaser's express written consent, be utilized by the Supplier
or copied, reproduced, transmitted, or communicated to a third party.
The Supplier shall, at the Purchaser's request, immediately return
any copies of the drawings or technical documents held by him at the
end of the Guarantee Period.
The Supplier shall ensure that no information regarding the Purchase
Agreement is brought to the knowledge of any third party without
obtaining prior consent thereto from the Purchaser.
8 MISCELLANEOUS
8.1 Notices
Notices shall be deemed to have been validly given if delivered
personally in writing, telexed, sent by registered air mail, or
telefaxed, followed by a letter copy, to the addresses set forth in
the Purchase Agreement or to any other address of which the Parties
hereto may have informed to the other Party. A notice or document
sent by registered air mail shall be deemed to have been received on
the 14th day after mailing.
8.2 The Representatives of the Parties
All communication between the parties shall be affected through the
representatives named in the Purchase Agreement or their substitutes
as notified from time to time by either party to the other party.
However, all communication concerning any specific Order or
Participating Unit shall be affected directly between the
Participating Unit and the authorized representative of the Supplier.
8.3 Amendments
Amendments to the Purchase Agreement shall only be made in writing
with specific reference to the Purchase Agreement and therefore any
waiver given by either party to the other in any one instance shall
not be deemed an amendment of the Purchase Agreement.
8.4 Entire Agreement
The Purchase Agreement and the documents listed in the Purchase
Agreement shall constitute the entire agreement between the parties
and it shall precede any other document exchanged between the parties
before the date of the Purchase Agreement. No document shall be
deemed to be included in the Purchase Agreement without a specific
reference.
8.5 Assignment and Subcontracting
The Supplier may not transfer or assign the Purchase Agreement or any
part of it without the prior written consent of the Purchaser. The
Purchaser may freely assign the Purchase Agreement or any part
thereof to any company affiliated with the Purchaser by giving
advance notice thereof to the Supplier.
If the Supplier wishes to employ subcontractors, the written consent
of the Purchaser must be obtained before the subcontracting work is
ordered.
8.6 Termination
In addition to any other rights of termination specified in the
Purchase Agreement, the Purchaser has a right to terminate the
Purchase Agreement in the event that the Supplier is in serious
breach of his obligations under the Purchase Agreement and has failed
to remedy such breach within thirty (30) days of a written demand
thereof by the Purchaser. The Equipment failing to meet the specified
time and quality requirements shall always be considered a serious
breach of the obligations of the Supplier.
Purchaser may cancel all or any part of this order at any time
without notice of any kind, after acceptance and before complete
delivery is made, upon the happening of any of the following:
insolvency of the Supplier, however induced; the application by
Supplier for the appointment of receiver, trustee or custodian for
Supplier or any part of its assets; the execution by Supplier of an
assignment for the benefit of creditors; Supplier becomes insolvent
or fails generally to pay its debts as such debts become due.
8.7 Excuse of Performance: Cost of Performance
The terms and provisions of Section 2-615 of the Uniform Commercial
Code notwithstanding, the occurrence or existence of the following
events and circumstances shall not excuse Supplier from the
performance of any of its obligations hereunder: (i) any adverse
change in the cost or availability of raw materials, supplies or work
in process from the date of this order to the Date Required; (ii)
fires, floods, explosions, accidents or breakdowns; (iii) riots,
strikes, slowdowns or other concerted acts of workmen, whether direct
or indirect; and (iv) any other cause similar to any of the
foregoing. Under no circumstances shall Purchaser pay or be liable to
Supplier for a price in excess of the price determined in accordance
with Appendix 6 (Price List) of the Purchase Agreement hereof due to
an increase in Supplier's cost of performance between the date of
this order and the time of Supplier's performance thereof unless the
Project Designation space on the front page of the Purchase Order is
completed and the general contractor(s) or owner(s,) of said
Project(s) agree(s) to pay such increase.
8.8 Force Majeure
The following circumstances shall constitute an event of Force
Majeure, provided they arise subsequently to the entering into the
Purchase Agreement and could not reasonably have been anticipated by
the Supplier at the time: war, mobilization, civil commotion, revolt
or riot, government intervention, official strike, and acts of God.
The Supplier may not invoke any events of Force Majeure unless he can
prove that
(a) he has taken all reasonable steps to limit the effects and
to make good the time lost, during and after the event of
Force Majeure,
(b) he has, when the circumstances he wishes to invoke as
events of force majeure have become known to him, within
three (3) days given written notice to the Purchaser of
the nature and anticipated consequences of the Force
Majeure.
Under no circumstances can a period longer than seven (7) days prior
to the written notice be taken into account as an event of Force
Majeure, whether known to the Supplier or not.
8.9 Applicable Law
APPLICABLE LAWS: SEVERABILITY. Supplier shall comply with the
provisions of the Fair Labor Standards Act of 1938, as amended, the
Occupational Safety and Health Act of 1970, and all other applicable
Federal, state and local laws, regulations, rules and ordinances.
This agreement shall be interpreted under the parties' rights and
remedies governed by the Uniform Commercial Code of Illinois.
Wherever possible, each provision of this agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this agreement shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this agreement.
8.10 Settlement of Disputes
Solutions to any disputes arising in connection with the Purchase
Agreement shall be negotiated in good faith between the parties. If a
solution cannot be found in mutual negotiations, the disputes shall
be finally settled under the rules of American Arbitration
Association.
In addition, either party has a right to submit any dispute, or seek
enforcement of any provision of the Purchase Agreement in the local
court of the other party at his discretion, shall take precedence
over any arbitration proceedings and decision of the court shall be
final and binding to the parties.
8.11 Buy American Act
If required by the conditions stated in the Purchase Agreement,
Supplier must comply with provisions of the Buy American Act (41
U.S.C. 10) including, but not limited to, Federal Acquisition
Regulations 52.225-1, 52.225-3, 52.225-5, as applicable per project
specification requirements.
APPENDIX 7: PARTICIPATING UNITS
1) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc.,
Elevator Division, McKinney, Texas
.................... ▇▇▇▇▇▇ ▇▇▇▇▇▇, Purchasing Manager
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
2) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc.
Escalator Division, Moline, Illinois
.................... ▇▇▇▇▇▇ ▇▇▇▇▇▇, Materials Manager
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
3) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc.
MAC Spares Center, Moline, Illinois
.................... ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Purchasing Manager
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
4) FHE Services, Inc./C.E. Elevators Corp., Long Island City, NY
.................... ▇▇▇▇ ▇▇▇▇▇▇▇, President
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
5) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc., Modernization Support Team, Moline, IL
.................... ▇▇▇▇ ▇▇▇▇▇▇▇, Manager, Modernization Support Team
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
6) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc. Branch Locations
.................... Branch Managers
7) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Elevator Co. Limited, Canadian Branch Locations
.................... ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President, General Manager & CEO
.................... Phone: ▇▇▇-▇▇▇-▇▇▇▇
APPENDIX 9: WARRANTY
9.1 Supplier warrants to Purchaser that any product provided by
Supplier hereunder be free from defects in material and/or
workmanship under normal use and operation during the warranty period
stated herein. In any product provided hereunder proves to be
defective in material and/or workmanship with in eighteen (18) months
from date of delivery, provided conditions of operation have been
normal at all times, and that the product has not been subjected to
abnormal stresses, such caused as incorrect primary voltage and
frequency or improper ventilation, Supplier will correct such defect
at Supplier's own expense by repairing or replacing the defective
product.
9.2 Claims for defective product shall be subject to verification by
an authorized employee of the Supplier.
9.3 Any replacement or repaired product furnished under this Warranty
shall be warranted by Supplier for a new warranty period and under
the same warranty conditions as applicable to the original product,
unless only a components was replaced.
9.4 The foregoing Warranty does not apply to experimental, prototype
or developmental products.
9.5 Supplier shall pay transportation charges for controllers
returned to Supplier and delivered to Purchaser only if Supplier is
responsible under the terms of this Warranty. Purchaser shall notify
supplier, in writing, of any intention to return an alleged defective
product. Purchaser shall give such advance notification to allow
Purchaser to arrange for shipment, should Supplier so desire.
9.6 Other than the Warranty contained herein and in 5.4 of Appendix 5
(GTC), Supplier disclaims that any other warranty has been given to
Purchaser, whether express or implied.
APPENDIX 10: SPECIAL CONDITIONS
The following modifications are made herein to Appendix, 5: General
Terms and Conditions of Purchase ("GTC").
10.1 Section 3.3 is modified by adding the following language:
"Notwithstanding anything to the contrary
contained herein, no term and condition of any
individual Purchase Order shall modify any term
and/or condition applicable to Supplier under the
Purchase Agreement, including by way of
illustration and not limitation the scope of
Supplier's obligations for delivery or the
Purchase Prices for the Equipment. In the event
of any conflict between an individual Purchase
Order and the Purchase agreement, as amended
herein, the amended Purchase Agreement shall
control."
10.2 Section 3.6 is amended to read as follows:
"The Supplier shall also ensure that the
Equipment fully complies with any other
applicable laws and regulations of an end use
location in the United States of America and
Canada for the installed equipment."
10.3 Section 5.4 is hereby modified by amending the last
sentence thereof to read as follows:
"The guarantee obligation for the Supplier shall
not extend to defects proven to have been
directly caused by wrong or negligent
installation, operation, overloading or
inadequate maintenance."
10.4 Section 7.4 is amended to read as follows:
"All drawings and technical documents submitted
by either the Purchaser to the Supplier or the
Supplier to the Purchaser (hereinafter
"Submitting Party") shall remain the exclusive
property of the Submitting Party. they may not,
without the Submitting Party's express written
consent, be utilized by the other party, or
copied, reproduced, transmitted or communicated
to a third party.
The other party shall, at the Submitting Party's
request, immediately return any copies of the
drawings or technical documents held by it at the
end of the Guarantee Period. Both parties shall
ensure that no information regarding the Purchase
Agreement is brought to the knowledge of any
third party without prior consent thereto from
the other party."
10.5 The following language shall be added as Section 8.12
Logos:
"Purchaser shall provide Supplier with silk
screen of Purchaser's logo for cover of
controller. Supplier will provide, at no cost to
Purchaser, covers on the Performance Controller
with Purchaser's logo in lieu of Supplier's
standard cover and logo."