MV TRANSPORTATION PURCHASE ORDER TERMS AND CONDITIONS

These MV Transportation Purchase Order Terms and Conditions (the “Terms and Conditions”) will govern all purchase orders (each, an “Order”) placed by MV Transportation, Inc. and/or its affiliates (“MV Transportation”) to a vendor (“Vendor”) for materials, items, products, components or services (hereinafter referred to as “Material”). By accepting an Order, Vendor accepts these Terms and Conditions.

 

1. ACKNOWLEDGMENT AND ACCEPTANCE OF ORDER. This Order constitutes an offer that is expressly limited to the Terms and Conditions contained herein.  All exhibits, attachments, technical specifications, drawings, notes, instructions, or information referenced in the Order are incorporated herein by reference.  These Terms and Conditions control unless they are specifically varied or contradicted by one of the following methods in the listed order of precedence: 1) Varying terms on the face of this Order; 2) A current existing master purchase agreement; 3) Another valid contract between MV Transportation and the Vendor to which this Order applies.  All other prior oral or written statements varying the Order are specifically rejected and disclaimed.

 

2. CHANGES/AMENDMENTS. MV Transportation shall have the right at any time, by written (including electronic) notice, in the form of a Change Order, to the Vendor, to make any changes it deems necessary, including, but not limited to, changes in specifications, design, delivery, testing methods, packing or destination.  If any such required changes cause an increase or decrease in the cost of or the time required for performance, a mutually agreed reasonable adjustment may be made in the contract price or delivery schedule, or both.  Any claim by the Vendor for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from receipt by the Vendor of notice of change.  Price increases, extensions of time for delivery and change in quantity shall not be binding on MV Transportation unless the claim for adjustment is agreed to and signed by MV Transportation.

 

3. DELIVERY/FORCE MAJEURE. If any Material is not delivered by the date specified herein, MV Transportation reserves the right, without liability, to cancel this Order as to any Material not yet shipped or tendered, and to purchase substitute Material and to charge the Vendor for any loss incurred.  Any provisions hereof for delivery by installment shall not be construed as making the obligations of the Vendor severable.  If the Vendor is unable to complete performance at the time specified for delivery hereunder, by reason of strikes, labor disputes, riot, war, fire or other causes beyond the Vendor’s reasonable control, MV Transportation, at its option, may elect to take delivery of Material hereunder in its unfinished state and to pay such proportion of the contract price as the work then completed bears to the total work hereunder and to cancel all or any portion of the undelivered Order without liability as to the balance of the Material covered hereunder. 

 

4. TITLE AND RISK OF LOSS. Terms of shipping are F.O.B. Destination (MV Transportation delivery location), Freight Pre-paid unless otherwise noted within the terms of this Order.

 

5. PRICE/TAXES. Prices stated on the Order hereof are firm and shall remain firm until deliveries have been completed unless otherwise expressly agreed to in writing by both parties.  The Vendor agrees that any price reduction made with respect to Material covered by this Order subsequent to placement will be applied to this Order.  All prices specified herein include all charges for, but not limited to, inspection, packaging and loading.  Prices set forth are exclusive of applicable sales, use, excise, value-added or similar taxes. 

 

6. PAYMENT TERMS. Payment terms are net 50 days from the date of receipt of invoice unless otherwise specified in the Order.

 

7. PRICE PROTECTION; PRICE GUARANTEE AND NOTICE OF PRICE INCREASES. Vendor guarantees its prices against manufacturer’s or Vendor’s own price decline. If Vendor reduces its price on any Material sold to MV Transportation, which Material has not yet been delivered to MV Transportation by Vendor or, if consistent with Vendor’s practice, which Material is currently in MV Transportation’s inventory (including Material on hand, in warehouses and in transit), Vendor will, at MV Transportation’s option, either refund in an amount or give MV Transportation a credit equal to the price difference for such Material, multiplied by the units of such Material to be delivered by Vendor and/or currently in MV Transportation’s inventory. For all Material not yet shipped to MV Transportation, Vendor agrees to meet the price of any of its competitors selling comparable Material in the United States. If a court, regulatory agency or other government entity with jurisdiction finds that the prices on an Order are in excess of that allowed by any law or regulation of any governmental agency, the prices will be automatically revised to equal a price which is not in violation of such law or regulation. If MV Transportation will have made payment before it is determined that there has been a violation of this section, Vendor will promptly refund an amount of money equal to the difference between the price paid for the Material and the price which is not in violation of this section. If contemporaneously with Vendor’s sale of Material to MV Transportation, Vendor sells or offers to any competitor of MV Transportation any comparable Material (i.e. of like grade and quality) at lower prices and/or on terms more favorable than those stated on the Order, the prices and/or terms of the Order will be deemed automatically revised to equal the lowest prices and most favorable terms at which Vendor will have sold or will have offered such Material and payment will be made accordingly. If MV Transportation will become entitled to such lower prices, but will have made payment at any prices in excess thereof, Vendor will promptly refund the difference in price to MV Transportation or at MV Transportation’s option, credit its next invoice for Material.

 

8. WARRANTIES. The Vendor warrants that any Material supplied hereunder shall conform to the generally recognized manufacturing and safety standards of the Vendor’s industry in the United States, shall meet any warranty customarily provided by Vendor for the Material and shall meet or exceed the Vendor’s representations and specifications on performance as detailed in the Vendor’s brochures, sales literature and other specifications for the Material as may be available.  Vendor will pass through any supplier warranty that Vendor receives concerning the Material to MV Transportation.  In addition to any other express or implied warranties, the Vendor warrants that the Material furnished pursuant to this Order will: (a) be free from defects in title, workmanship and material; (b) be free from defects in design except to the extent that such items fully comply with detailed designs provided by MV Transportation and is not modified by Vendor; (c) be of merchantable quality and suitable for the purposes, if any, which are stated on this Order; (d) not infringe upon or violate any patent, copyright, trademark, trade name, trade dress, trade secret or, without limitation, any other rights belonging to others, and Vendor will pay all royalties owed by Vendor, if any, to the appropriate licensor; and (e) not violate any other laws, ordinances, statutes, rules or regulations of the United States or any state or local government or any subdivision or agency thereof.  Vendor warrants that all weights, measures, sizes, legends, law tags or descriptions printed, stamped, attached or otherwise indicated with regard to the Material are true and correct, and conform and comply with all laws, rules, regulations, ordinances, codes and/or standards of federal, state and local governments relating to such Material.  If any Material covered by this Order is found not to be as warranted, MV Transportation may, by written (including electronic) notice to the Vendor: (a) rescind this Order as to such non-conforming Material; (b) accept such Material at an equitable reduction in price; (c) reject such non-conforming Material and require the delivery of suitable replacements.  If the Vendor fails to deliver suitable replacements promptly, MV Transportation, with notice of five (5) days, may replace or correct such Material and charge the Vendor the additional cost occasioned MV Transportation thereby, or terminate this Order for default.  Any items corrected or furnished in replacement are subject to all the provisions of this article entitled WARRANTIES to the same extent as items initially furnished or originally ordered.  Cost of replacement, rework, inspection, repackaging, loading and transportation of such corrected Material shall be at the Vendor’s expense.   This warranty provision shall survive any inspection, delivery, acceptance, payment, expiration or earlier termination of this Order and such warranties shall run to MV Transportation, its successors, assigns, employees, and users of the Material.  Nothing herein, however, shall limit MV Transportation’s rights in law or at equity for damages resulting from delivery of defective Materials or damage caused during the delivery of Materials or provision of services.  Rights granted to MV Transportation in this article entitled WARRANTIES are in addition to any other rights or remedies provided elsewhere in this Order or in law.

 

9. INSPECTION AND ACCEPTANCE. The Vendor shall inspect all Material prior to shipment to MV Transportation.  All Material covered by this Order may be inspected and tested by MV Transportation or its designee.  If MV Transportation so elects to inspect or test, successful completion of such inspection and testing shall be a prerequisite to MV Transportation’ acceptance of the Material.  If any Material covered by this Order is defective or otherwise not conforming with the requirements of this Order, MV Transportation may, by written (including electronic) notice to the Vendor: (a) rescind this Order as to such non-conforming Material; (b) accept such Material at an equitable reduction in price; (c) reject such non-conforming Material and require the delivery of suitable replacements.  If the Vendor fails to deliver suitable replacements promptly, MV Transportation, with notice of five (5) days, may replace or correct such Material and charge the Vendor the additional cost occasioned MV Transportation thereby, or terminate this Order for default.  No inspection (including source inspection) test, approval (including design approval) or acceptance of Material shall relieve the Vendor from responsibility for defects or other failures to meet the requirements of this Order.  Payment of invoice will not constitute acceptance of Material ordered and will be subject to the remedies discussed herein, if the Vendor failed to meet the requirements of this Order.  Rights granted to MV Transportation in this article entitled INSPECTION AND ACCEPTANCE are in addition to any other rights or remedies provided elsewhere in this Order or in law.

 

10. PATENT INDEMNITY. THE VENDOR AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND MV TRANSPORTATION, ITS EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS WITH RESPECT TO ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS OF ACTUAL OR ALLEGED INFRINGEMENTS OF ANY LETTER, PATENT, REGISTERED OR INDUSTRIAL DESIGN, TRADEMARK OR TRADE NAME, TRADE SECRET, COPYRIGHT OR OTHER PROTECTED RIGHT IN ANY COUNTRY RESULTING FROM ANY SALE, USE OR MANUFACTURE OF ANY MATERIAL DELIVERED HEREUNDER AND TO PAY AND DISCHARGE ALL JUDGMENTS, DECREES, AND AWARDS RENDERED THEREIN OR BY REASON THEREOF AND BEAR ALL EXPENSES AND LEGAL FEES (INCLUDING MV TRANSPORTATION) ASSOCIATED HEREWITH.  MV TRANSPORTATION RESERVES THE RIGHT TO BE REPRESENTED IN ANY SUCH ACTION BY ITS OWN COUNSEL AT ITS OWN EXPENSE.

 

11. INDEMNITY. THE VENDOR WILL INDEMNIFY, DEFEND AND HOLD MV TRANSPORTATION, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY LOSS, EXPENSE, CLAIM OR DAMAGE INCLUDING REASONABLE DEFENSE COSTS, ARISING FROM ANY CLAIM OR ACTION BASED ON ANY DEFECT IN THE MATERIALS, BREACH OF ANY WARRANTY OR ANY ACTS OR OMISSIONS OF THE VENDOR, ITS EMPLOYEES, SERVANTS, AGENTS OR SUBCONTRACTORS.  MV TRANSPORTATION RESERVES THE RIGHT TO BE REPRESENTED IN ANY SUCH ACTION BY ITS OWN COUNSEL AT ITS OWN EXPENSE.

 

12. ASSIGNMENT/SUBCONTRACTING. The Vendor shall not assign this Order, any rights under this Order or any monies due or to become due hereunder nor delegate or subcontract any obligations or work hereunder without the prior written consent of MV Transportation.  No purported assignment nor delegation by the Vendor shall be binding on MV Transportation without such consent. Vendor will be responsible for any work performed by any subcontractor.  MV Transportation may assign this Order to any successor or any of its affiliated companies.

 

13. CANCELLATIONS. In addition to any other rights or remedies provided elsewhere in these Terms and Conditions, this Order or in law, MV Transportation may cancel this Order in whole or in part, for no cause, upon written (including electronic)  notice to the Vendor, effective when sent, provided such notice is sent at least three (3) days prior to the delivery date specified on the face of this Order.  MV Transportation may cancel this Order in whole or in part at any time for cause by written (including electronic) notice to the Vendor, effective when sent, in the event that the Vendor: (a) fails to comply with any term or condition of this Order including, but not limited to, delivery terms; or (b) appoints a receiver, liquidator or trustee in bankruptcy or other similar officer over any or all of its property or assets; or (c) files a voluntary petition in bankruptcy; or (d) has had filed against it an involuntary petition in bankruptcy which remains in effect for thirty (30) days; or (e) voluntarily ceases trading; or (f) merges with or is acquired by a third party; or (g) assigns any of its rights or obligations under the Order to a third party without MV Transportation’ advance written consent.  Upon the occasion of any one of the aforesaid and in addition to any remedies which MV Transportation may have in law or at equity, MV Transportation may also cancel this order or any outstanding deliveries hereunder by notifying the Vendor in writing of such cancellation and the Vendor shall thereupon transfer title and deliver to MV Transportation such work in progress or completed material as may be requested by MV Transportation.  MV Transportation shall have no liability to the Vendor beyond payment of any balance owing for Material purchased hereunder and delivered to and accepted by MV Transportation prior to the Vendor’s receipt of the notice of termination, and for work in progress requested for delivery to MV Transportation.

 

14. PROPRIETARY INFORMATION/TITLE TO SPECIFICATIONS. All written information obtained by the Vendor from MV Transportation in connection with this Order and which is identified as proprietary, including, but not limited to, any designs, plans, specifications, drawings, blueprints and software programs, shall remain the property of MV Transportation, shall be used by the Vendor only to the extent necessary for performance of this Order and shall not be copied or disclosed to any third parties without prior written consent of MV Transportation.  The Vendor shall not make or authorize any news release, advertisement, or other public disclosure which shall deny or confirm the existence of this Order without prior written consent of MV Transportation except as may be required to perform this Order.

 

15. SHIPPING, PACKAGING AND LABELING All Material purchased hereunder shall be packed and packaged to ensure its safe delivery in accordance with good commercial practice and where incorporated, MV Transportation’ packaging specifications.  The Vendor shall mark on all containers, handling and loading instructions, shipping information, part number, purchase order number and item number, quantity in box, shipment date, and names and addresses of the Vendor and MV Transportation.  An itemized packing list shall accompany each shipment.  Each packing slip shall include; this Order number, quantity, item description, order date, shipping date and delivery address, but shall not include pricing information.

 

16. THE VENDOR AS AN INDEPENDENT CONTRACTOR. The Vendor shall perform the obligations of this Order as an independent contractor and under no circumstances shall it be considered an agent or employee of MV Transportation.  The Terms and Conditions of this Order shall not, in any way, be construed as to create a partnership or any other kind of joint undertaking or venture between the parties hereto.  The Vendor expressly waives any and all rights which may or may not exist to claim any relief under MV Transportation’ comprehensive insurance policy, worker’s compensation or unemployment benefits.

 

17. SET-OFFS. MV Transportation may set-off against amounts payable under any Order all present and future indebtedness of Vendor (or any of its associated or affiliated companies) to MV Transportation arising from this Order, any subsequent Order or any other contractual agreement between the parties hereto unless such set-off violates local law or regulations.

 

18. INSURANCE AND STATUTORY OBLIGATIONS. If any part of this Order involves the Vendor’s performance on MV Transportation’ premises or at any place where MV Transportation conducts operations, or with material or equipment furnished to the Vendor by MV Transportation, the Vendor shall take all necessary precautions to prevent injury to persons or property during the progress of such work. In addition to maintaining adequate comprehensive liability insurance including products liability coverage for the Materials, Vendor shall maintain public liability, personal injury, and property damage insurance and employer’s liability and workers’ compensation insurance, in an amount determined by MV Transportation to be appropriate, to protect MV Transportation from risks and from any statutory liabilities whatsoever arising therefrom associated with Vendor’s performance on MV Transportation’s premises. All insurance shall be primary and not contributory with regard to any other insurance available to MV Transportation.  The policies shall include MV Transportation as an additional insured, except Workers’ Compensation Insurance, and include a waiver of subrogation.  The Vendor shall produce evidence of such insurance upon request by MV Transportation.

 

19. LIMITATION OF DAMAGES. MV TRANSPORTATION WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS REVENUES, BUSINESS INTERRUPTION AND THE LIKE), ARISING FROM OR RELATING TO THE RELATIONSHIP BETWEEN VENDOR AND MV TRANSPORTATION, INCLUDING ALL PRIOR DEALINGS AND AGREEMENTS, OR THE CONDUCT OF BUSINESS UNDER OR BREACH OF THESE TERMS AND CONDITIONS OR ANY ORDER, MV TRANSPORTATION’S CANCELLATION OF ANY ORDER OR ORDERS OR THE TERMINATION OF BUSINESS RELATIONS WITH VENDOR, REGARDLESS OF WHETHER THE CLAIM UNDER WHICH SUCH DAMAGES ARE SOUGHT IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, STATUTE, REGULATION OR ANY OTHER LEGAL THEORY OR LAW, EVEN IF MV TRANSPORTATION HAS BEEN ADVISED BY VENDOR OF THE POSSIBILITY OF SUCH DAMAGES.

 

20. ATTORNEYS FEES AND INTEREST OBLIGATIONS. MV Transportation reserves the right to charge Vendor interest at the rate of 12% per annum or such lower rate as may be permitted under applicable law for any obligations owed by Vendor to MV Transportation, including debit balances not paid within thirty (30) days after due, until such amounts are paid in full, and MV Transportation will be entitled to recover from Vendor its attorneys’ fees and costs incurred in collecting any past-due obligation.

 

21. NOTICES. Any notice or other communication required or permitted to be given pursuant to these Terms and Conditions or this Order shall be deemed to have been sufficiently given if in writing and either delivered by facsimile (with electronic receipt), nationally recognized overnight courier service or sent by registered or certified U.S. mail, return receipt requested, addressed to Vendor at its last known address (as provided in writing to MV Transportation) and to MV Transportation at the following address:

MV Transportation, Inc., 2711 North Haskell Avenue, Suite 1500, Dallas, TX 75204, Attention: General Counsel.

 

22. WAIVER. The failure of MV Transportation to insist in any instance upon the strict performance of any provision of this Order, or to exercise any right or privilege granted to MV Transportation hereunder shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force.

 

23. COMPLIANCE WITH LAWS. Whether or not MV Transportation provides a specification, if Materials and any related services or containers furnished by the Vendor are required to be constructed, packaged, labeled or registered in a prescribed manner, the Vendor shall comply with the applicable federal, state, county and local laws, ordinances, regulations and codes.  The Vendor further agrees to indemnify and hold MV Transportation and its customers harmless from any loss or damage that may be sustained by MV Transportation, by reason of the Vendor’s failure to comply with any federal, state, county or local laws, ordinance, regulations and codes.

 

24. LAW OF THE CONTRACT; VENUE AND JURISDICTION. MV Transportation and Vendor agree that the laws of Texas (without giving effect to any conflict of laws) will govern the parties’ relationship and the interpretation and enforcement of these Terms and Conditions and this Order. Any claim or suit related to the Terms and Conditions or an Order will be brought in the state court in Dallas County, Texas and Vendor accepts the exclusive jurisdiction of such court.  If a party initiates any proceeding regarding the Terms and Conditions or this Order, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of the Terms and Conditions or this Order.