1. GENERAL. This document (the “Terms and Conditions”) shall be deemed an integral part of any Purchase Order (“Purchase Order”) placed by Preston Refrigeration Company, Inc. (“Preston”) for the purchase of materials, equipment, or other goods, (“Goods”) from the supplier, manufacturer, or person or entity selling such Goods to Preston (the “Seller”). These Terms and Conditions, the Purchase Order, and all documents incorporated by reference herein or therein, constitute the entire agreement (“Agreement”) between Seller and Preston regarding such purchase and sale of Goods. Any offer to purchase Goods through a Purchase Order or any acceptance by Preston of any offer made by Seller is expressly conditioned upon Seller’s acceptance of, and assent to, these Terms and Conditions. Any understandings, agreements, course of dealing or performance, transactions, or usage of trade that purport to modify, vary, explain, supplement or contradict this Agreement do not come into force unless and until confirmed in writing by Preston. All proposals, offers, orders, RFPs, or other correspondence with Seller are provided exclusively on the basis of these Terms and Conditions. Terms and conditions submitted by Seller are hereby contradicted and not recognized even if such terms and conditions are not expressly contradicted again upon receipt. These Terms and Conditions are deemed to be accepted at the latest upon delivery of the Goods. Preston reserves the right in its sole discretion to refuse any shipment of Goods that do not conform to these Terms and Conditions. Preston and Seller are sometimes referred to herein as the “Parties” or individually as a “Party”.
2. PRICES. All prices shall be gross and shall include any taxes (including but not limited to, value added taxes, import fees and taxes, and any other city, county, state, or federal taxes where applicable). Price quotes shall be based on the quoted terms of shipment, and shall include any charges for transportation, freight, storage, special handling, demurrage, insurance, or any other similar charges, costs, or fees.
3. TERMS OF PAYMENT. Payment in full shall be made by Preston within the time frame set forth in the Purchase Order, or if no payment date is set forth in the Purchase Order, then within ninety (90) days from the date of delivery of the Goods. Preston shall have the right to set-off any amount owing from Seller to Preston against any amount payable from Preston to Seller.
4. SHIPMENT, DELIVERY AND RISK OF LOSS. Unless otherwise agreed to by the parties, all shipments are FCA, Incoterms. Any additional charges incurred for shipping by Seller-designated carriers, specialized carriers or Seller-designated shipments beyond reasonable dispatch are the exclusive responsibility of Seller. Unless otherwise agreed, Preston reserves the right to select the mode of transportation. If delivery of the goods requires specialized transportation equipment, including platforms or low beds, Seller shall bear all such costs and if Preston under any circumstance incurs those costs, Seller agrees to promptly reimburse Preston for such costs. Risk of loss for the Goods sold hereunder shall pass to Preston pursuant to the designated Incoterm and any claims for shortage or damages suffered prior to such time are the responsibility of Seller and shall be submitted by Seller directly to the carrier. Neither Seller nor the carrier or any consignee shall have the right to divert or reconsign such shipment to any carrier or destination other than specified in the bill of lading without Preston’s prior written consent. Time shall be of the essence for all orders and Seller hereby agrees and acknowledges that any delays in shipment caused by Seller will harm Preston and will cause Preston to incur damages. Seller agrees to indemnify, defend, and hold harmless Preston and its respective officers, directors, employees, agents, subcontractors, successors and assigns from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against Preston and related to delays in shipment or the failure to ship Goods by the date specified on the Purchase Order.
5. PACKING AND INVOICING. An itemized packing list must accompany each shipment and clearly indicate Preston’s name, quantity shipped, part number, manufacturer’s part number, drawing number, description, number of packages included in the shipment, and Purchase Order number. Each package must be numbered and labeled with the Purchase Order number. Invoices, shipping notices, bills of lading, and all other documents or communications related to a Purchase Order must include the Purchase Order number and product number(s) and shall be mailed to the address specified by Preston within one business day after shipment unless Preston specifies a different time. Invoices shall be rendered in hard copy form and sent via US mail or in electronic form and sent via email based on the requirements of the Purchase Order and shall be directed to the billing address as specified in the Purchase Order. Purchase Orders shall be invoiced individually and in no instance shall an invoice cover more than one Purchase Order.
6. CANCELLATION. Preston shall have the right to cancel any Purchase Order at any time subject to this Section 6. If a Purchase Order is cancelled within five (5) business days from the date on which Preston sent such Purchase Order, there shall be no cancellation charges associated with such cancellation. If a Purchase Order is cancelled after the 5th business day from the date on which Preston sent such Purchase Order, Preston agrees to pay a cancellation charge consistent with Seller’s quoted cancellation schedule, but only if Seller has communicated such cancellation schedule to Preston in writing prior to the date of such cancellation. Such cancellation fee shall in no case include consequential costs or expenses of Seller, including but not limited to lost profit or overhead, and in no instance will such cancellation fee exceed the price of the Goods quoted in the cancelled Purchase Order.
8. CHANGE IN SPECIFICATIONS OR DELIVERY. Preston reserves the right at any time to make changes in drawings, specifications and delivery dates as to Goods covered by a Purchase Order. Any difference in price or time for performance resulting from such change shall be equitably adjusted and the Purchase Order schedule shall be modified in writing accordingly.
9. WARRANTY. Seller warrants that all Goods delivered by Seller pursuant to any Purchase Order will be free from defects in materials and workmanship and meet Seller’s published specifications for a period of eighteen (18) months after the date of shipment, or twelve (12) months after installation, whichever shall first occur, unless otherwise specified by Seller, and accepted by Preston in writing. All costs of dismantling, reinstallation and freight and the time and expense of Preston’s personnel and representatives for site travel and diagnosis under this warranty shall be borne by Seller unless accepted in writing by Preston. Seller assumes all other responsibility for any loss, damage, or injury to persons or property arising out of or connected with, or resulting from the use of Goods, either alone or in combination with other products/components. This Section 9 applies to any entity or person who may buy, acquire or use the Goods, including any entity or person who obtains the Goods from Preston. Preston agrees to provide such subsequent transferee conspicuous, written notice of the provisions of this Section 9. Seller agrees to defend, indemnify, release and hold harmless Preston against any and all claims, demands, losses, judgments, fines, penalties, expenses and liabilities, including without limitation costs, fees and all damages from any claim, suit, action or proceeding, at law or in equity, arising as a result of personal injury or property damage caused by any Good sold by Seller to Preston.
10. LIMITATION ON LIABILITY. Seller agrees that in no instance shall Preston’s liability to Seller and or its suppliers extend to include incidental, consequential or punitive damages. The term “consequential damages” shall include, but not be limited to: loss of anticipated profits; business interruption; loss of use, revenue, reputation, or data; costs incurred, including without limitation, for capital, labor, fuel, or power; and loss or damage to property or equipment. Seller expressly acknowledges and agrees that Preston has entered into this Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocated the risk between Preston and the Seller and forms the basis for the bargain between the Parties.
11. CONFIDENTIALITY. In the course of the relationship between the Parties, each Party may acquire valuable trade secrets, proprietary data, and other confidential information of the other Party including without limitation drawings, specifications, data, goods, technical information, information on processes, customer lists, customer identities, and other tangible and intangible property (collectively, the “Confidential Information”). Each Party agrees that throughout the course of its relationship with the other Party and for a period of five (5) years after the most recent order placed by and delivered to Preston, such Party will not, without the expressed written consent of the other Party, directly or indirectly communicate or divulge to, or use for its own benefit or the benefit of any other person or entity, any of the other Party’s Confidential Information which was communicated to or otherwise learned of or acquired by such Party during the course of its relationship with the other Party. Notwithstanding the foregoing, either Party may disclose or use Confidential Information under any of the following circumstances: (i) disclosure or use thereof in good faith and in connection with the performance of its duties in the course of its relationship with the other Party to the extent required, (ii) disclosure or use of any such information or data which is generally known within the industry or is otherwise available through independent resources, and (iii) disclosure or use thereof pursuant to any regulatory, compliance, or legal requirement in which case the disclosing Party agrees to provide notice of such requirement prior to such disclosure or use in order to give the other Party, in its discretion, the ability to challenge any such disclosure or use with the applicable governmental authority or to otherwise obtain a protective order as to such disclosure or use. Each Party agrees to immediately notify the other Party of any disclosure of Confidential Information that is not permitted under these Terms and Conditions and of any other misuse of Confidential Information in violation of these Terms and Conditions. In addition, each Party agrees to indemnify and hold harmless the other Party and its respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against such other Party and related to the unauthorized use or disclosure of the other Party’s Confidential Information including but not limited to dissemination of Confidential Information that occurs due to a third-party data breach of such Party’s computer, filing, or data retention systems.
13. FORCE MAJEURE. Preston shall not be liable for any act, omission, result or consequence, including but not limited to any delay in performance or non-performance due to acts of God; acts of Seller; war; weather; sabotage; civil disturbances or riots; the prior performance of any government order; any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labor shortage; fire; flood or other casualty; acts of the government (including through regulation or requirements) or public enemy; epidemics, pandemics, or other public health emergencies as declared by the World Health Organization or the Department of Health and Human Services of the United States; quarantine restrictions; shortage or failure of power or transportation, breakdown of equipment; strikes, labor disputes or differences with workmen, regardless of whether or not Preston is capable of settling any such labor problem; unforeseen circumstances or any events beyond Preston’s reasonable control whether of similar or dissimilar nature than those above enumerated (each a “Force Majeure Event”). If Seller experiences a Force Majeure Event which delays its performance by more than ten (10) days, Preston shall have the right to terminate any outstanding Purchase Orders that are affected by the Force Majeure Event without liability or penalty of any kind.
14. TRADEMARKS AND LICENSES. During the term of the Agreement, Preston is authorized to use Seller’s trade name or any of Seller’s trademarks and licenses in connection with Preston’s rights and duties under the Agreement and these Terms and Conditions. Seller agrees that Seller is selling its goods to Preston generically and Preston has the right to repackage such goods and to add the Preston logo and/or trademark to such packaging. Such repackaging shall not affect the warranty applicable to such Goods or affect either Party’s rights or responsibilities under the Agreement with respect to such Goods.
16. WAIVER. Failure or inability of either party to enforce any right hereunder shall not waive any right in respect to any other or future rights or occurrences.
17. EXPORT/IMPORT. Seller agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the jurisdiction in which Preston and Seller are established or from which Goods may be supplied, will apply to the receipt and use of such Goods. In no event shall Seller use, transfer, release, import, or export Goods in violation of such applicable laws, regulations, orders or requirements. In connection with the transactions contemplated by the Agreement, Seller is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of Preston’s jurisdiction and of any applicable state, foreign and local governmental body in connection with the sale, shipment, use, transfer and disposal of the Goods. If Seller imports or exports Goods in violation of any applicable law, regulation or rule, Seller shall be solely responsible for any fines or penalties imposed by competent authorities and shall indemnify and hold Preston harmless for any fines, penalties, and costs (including legal fees) incurred by Preston in connection with Seller’s violation. Seller warrants that all sales made hereunder are or will be made at not less than fair value under the United States Anti-Dumping Law (19U.S.C. § 160 et. Seq.). Preston is not and will not be a party to the importation of Goods or materials and all transactions between the Parties will be consummated subsequent to importation of any Goods or materials. Seller will neither cause nor permit Preston’s name to be shown as “Importer of Record” on any customs declaration.
18. POTENTIALLY HARMFUL MATERIALS. Seller agrees to inform Preston of any toxic or harmful materials used in the manufacture of Goods purchased under any Purchase Order, and indemnify Preston from any liability arising out of any reasonable use of such Goods. Seller shall provide material Safety Data Sheets as required by law.
19. TOOLS AND MATERIALS. Preston shall retain title to any designs, sketches, drawings, blueprints, patterns, dies, models, molds, tools, special appliances and materials (“Articles”) furnished or paid for by Preston in connection with any Purchase Order. Articles shall be marked as property of Preston, shall be properly insured (with loss payable to Preston) and shall be replaced if lost or destroyed, all at Seller’s cost.
20. GOVERNMENT CONTRACTS. If Goods are being shipped to Preston to fulfill the requirements of a governmental contract, Seller agrees to accept and accommodate any additional or different terms imposed upon Preston or Seller by the government.
21. GENERAL PROVISIONS. The Agreement supersedes all other communications, negotiations and prior oral or written statements regarding the subject matter of the Agreement. All typographical or clerical errors made by Preston in any Purchase Order, acknowledgement or publication are subject to correction
22. APPLICABLE LAW; VENUE. Interpretation of these Terms and Conditions and all transactions between the Parties shall be governed by and interpreted in accordance with the laws of the state of Missouri (without regard to conflict of laws provisions). The Parties hereby submit to the exclusive jurisdiction in the federal and state courts, in Jackson County, Missouri for the purposes of resolving any disputes arising under or otherwise regarding the Agreement. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to the Agreement.
23. NOTICE. All notices, claims, requests and other communications hereunder which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given and received on the date sent if hand-delivered or sent by delivery service, telegram or facsimile transmission to the other party at the address set forth on the signature page to this Agreement. Notices, claims, requests, and other communications delivered by mail shall be deemed to have been received three (3) business days after deposit in the US mail postage prepaid.
24. ASSIGNMENT. Neither this Agreement nor any of the rights, interest or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party provided, however, that a Party may (i) assign this Agreement to any entity that acquires all or substantially all of such Party’s assets or its business that is the subject hereof, or (ii) upon written notice to the other Party, assign this Agreement to any entity that is owned by such Party.
25. ATTORNEY’S FEES. Preston shall have the right to recover from Seller its reasonable costs, necessary disbursements, and attorneys’ fees incurred in enforcing the Agreement.
26. COMPLIANCE WITH LAWS. In connection with each Purchase Order, Seller shall comply with all applicable federal, state and local laws, executive orders, rules and regulations, including but not limited to the Occupational Safety and Health Act of 1970 as amended (“OSHA”), Toxic Substances Control Act as amended (“TOSCA”), Equal Employment Opportunity Act and the Regulations and Standards issued pursuant thereto, and the Fair Labor Standards Act of 1938 as amended (“FLSA”). Further, Seller warrants that all Goods will be in compliance with the Consumer Product Safety Act (“CPSA”), the National Highway Safety Act (“NHSA”) and regulations issued pursuant thereto. Seller warrants that it has not and will not offer, promise, authorize or make, directly or indirectly, any payments (in money or other thing of value), contributions or gifts to any non-U.S. government agency, department, official, or government owned or controlled entity in order to obtain or retain business, or secure any other improper business advantage, which would violate the U.S. Foreign Corrupt Practices Act (“FCPA”) and/or any other applicable anti-bribery laws.
27. HEADINGS. The paragraph headings and numbers are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer.
28. INTERPRETATION. Where the context of the Agreement so requires, the singular shall include the plural and vice versa.
29. ORDER OR PRECEDENCE. In the event of any conflict between this Agreement and any other terms and conditions of any other document, this Agreement shall govern. In the event of conflict between the terms and conditions found in the Purchase Order and these Terms and Conditions, the Purchase Order shall govern.
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