Platt Electric Supply, Inc. MASTER PURCHASE AGREEMENT ...

Platt Electric Supply, Inc.
MASTER PURCHASE AGREEMENT
Revised 08/22/12
This Master Purchase Agreement effective date is the offer date of the Purchase Order between
Platt Electric Supply, Inc., an Oregon corporation located at P.O. Box 3167, Portland, OR 97208-3167
("Platt") and the Vendor, Manufacture, Supplier or Service Contractor ("Seller").
BACKGROUND
A. Seller is in the business of manufacturing or distributing and selling certain goods
("Goods") and/or of providing certain services ("Services").
B. Platt may from time to time wish to purchase those Goods and Services from Seller on the
terms and conditions set forth in one or more purchase orders submitted by Platt to Seller
(each a "Purchase Order").
C. The purpose of this Agreement is to set forth the terms and conditions that will apply to
each such Purchase Order, whether or not specifically referenced in that Purchase Order.
Platt and Seller agree as follows:
TERMS AND CONDITIONS
1. Incorporation of Terms and Conditions into Purchase Order. The terms and conditions set forth in this
Agreement; as Platt may modify them from time to time; and any specifications, reports, samples, or
descriptions of the Goods and/or the Services or that are provided to and relied upon by Platt (collectively,
the "Terms") are expressly incorporated into and form a part of each Purchase Order. This Agreement
supersedes all prior and contemporaneous oral or written agreements, understandings, and
communications between Platt and Seller relating to the subject matter of any Purchase Order, whether
now in existence or created at any time in the future.
2. Acceptance of Purchase Order. Each Purchase Order is an offer, not an acceptance. Platt is willing
to purchase the Goods and/or Services only if Seller accepts that Purchase Order. Platt expressly limits
Seller's acceptance of Purchase Orders only to the terms of that Purchase Order, including these Terms.
These Terms take precedence over any terms in document submitted by Platt, in Seller's invoice or in any
other forms or document unless it has been signed by both Platt and Seller. Seller will be deemed to have
accepted a Purchase Order (a) when acknowledged by Seller in writing, or (b) if Seller makes any
performance (such as providing ship dates) or shipment in response to or in anticipation of that Purchase
Order.
3. Purchase Price and Payment. The purchase price will be set forth on the face of each Purchase
Order. If no price is specified, Seller must fill the Purchase Order at a price no higher than that last quoted
or charged to Platt by Seller. Invoices must be dated no earlier than the shipping date of the Goods.
Seller must send all invoices by EDI or f-mail. For more information contact vendors@platt.com. Seller's
invoice will contain the following information: Platt's Purchase Order number, description of the Goods
and Services, cash discount period, point of shipment, method of shipment and point of destination.
Unless specified otherwise on a Purchase Order, the purchase price will include all freight charges. Any
invoice including freight charges must be accompanied by the supporting freight bill. A bill of landing must
accompany each invoice. No interest, service charges, or finance charges will be assessed to Platt or
accrue on Platt's account. Platt will pay all invoices within terms (no terms less than 30days) following the
later of Platt's receipt of the Goods and/or Services or Platt's receipt of the invoice. If the invoice (or
Goods and/or Services) is received after the 25 th day of the month, the invoice (or Goods and/or Services)
will be deemed to have been received the first day of the following month. Seller will not ship Goods
C.O.D. without Platt's prior written consent. Unless itemized in a Purchaser Order, Seller will pay all sales
and excise taxes, duties, tariffs and fees, if any, on the Goods and/or Services.
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4. Adjustment to Inventory. In the event that Seller lowers its published price list or increases its
discount for purchase from its price list (the net of which lowers the cost of its items for new purchases)
Platt shall have the right to request price protection for Products in Platt’s inventory. Upon such request,
Seller will grant a credit to Platt in an amount equal to the difference between the price paid and the new
price (including additional discounts) for each such Product in Platt’s inventory.
5. Delivery. Unless otherwise specified in a Purchase Order, all Goods must be delivered freight prepaid,
F.O.B. Platt's facility (or other destination designated by Platt). Notwithstanding the terms of shipment,
Seller will bear the risk of loss of or damage to the Goods for any reason until delivery of the Goods to the
F.O.B. point. Time is of the essence. Delivery of Goods and performance of Services must be completed
within the delivery schedule specified in the Purchase Order. Seller agrees to notify Platt immediately if
Seller is unable to deliver any part or all of the Goods and/or Services called for by a Purchase Order or if
Seller is unable to meet the specified delivery schedule. Such notice will not limit the remedies available
to Platt or the liability of Seller for nonperformance. If delivery is not timely completed (including late
delivery of one or more installments for Goods to be delivered in multiple installments), Platt may, in
addition to any other available remedies, refuse delivery of any or all of the Goods and/or Services
described in a Purchase Order and/or cancel all or any part of that Purchase Order. In addition, Platt may,
at its option, purchase replacement Goods and Services from an alternate supplier(s), and Seller will
reimburse Platt for any increased costs Platt incurs in obtaining the replacement Goods and/or Services
from such alternate supplier(s). Seller's obligations are not severable and any provision for delivery of
Goods or Services by installment will not be construed as making the obligations of Seller severable.
Seller will not be excused by unexpected difficulty or commercial impracticality of any degree.
6. Inspection. Platt will have the right to inspect and test the Goods and Services and reject and/or
revoke acceptance of any nonconforming Goods and Services. If Platt rejects or revokes acceptance of
any such Goods or Services, Platt may, at its option, purchase replacement Goods and Services from an
alternate supplier(s), and Seller will reimburse Platt for any increased costs Platt incurs in obtaining the
replacement Goods and/or Services from such alternate supplier(s). In addition, Platt may require Seller
to promptly correct or cure any nonconforming Goods, or accept any nonconforming Goods or Services
with an equitable adjustment in price. Platt may return nonconforming Goods to Seller at Seller's risk and
expense, including transportation and handling costs. The right to test and inspect, whether exercised or
not, will not affect Platt's right to revoke acceptance of the Goods or Services or Platt's right to pursue
other remedies if nonconformities are later discovered even if such nonconformity could have been
discovered upon inspection. Payment for Goods or Services will not constitute acceptance. Acceptance
will not relieve Seller from its responsibility under any warranty.
7. Warranties. In addition to all other express and implied warranties, Seller expressly warrants that all
Goods and Services will: (a) be free from all liens, charges, encumbrances, or claims of any person;
(b) not infringe on any patent, copyright, intellectual property or proprietary right of any third party; (c)
conform in all respects to all applicable laws, regulations, standards, rules and orders of all applicable
federal, state, and local governmental authorities, whether domestic or foreign, including without limitation
any relevant product standards embodied in OSHA Regulations, the National Electric Code ("NEC")
NFPA-70 set by Underwriters Laboratories, Inc. ("UL"), and state and local codes to the extent that those
codes employ OSHA Regulations, NEC-NFPA-70 and relevant UL standards. All wire purchased from the
Seller is to be UL listed and will bare the UL mark on the cable, or include a UL label on the spool, or if respooled
include a UL certified re-spool label; and (d) for a period (the "Warranty Period") that begins on
the date of delivery and expires on the later of (i) eighteen months from the date of Platt's acceptance of
the Goods or Services, (ii) eighteen months from the date the Goods and/or Services are sold by Platt to
the ultimate end user, and (iii) the expiration of any warranty provided by Seller, (x) be of merchantable
quality, of good material and workmanship, free from defects in design, materials and workmanship, (y) be
fit for the purposes for which Goods of that type are ordinarily used, as well as for any purposes Seller has
made known to the public or to Platt or that Platt has made known to Seller, and (z) conform to all
specifications and descriptions incorporated in the Purchase Order and any samples supplied by Seller or
Platt. Seller hereby assigns to Platt the benefits of all warranties given by any persons from whom Seller
purchased any Goods or Services. If the Goods or Services are defective in any way or fail to conform in
all respects to the warranties set forth in these Terms, Seller will at Platt's option, and at Seller's expense,
within a reasonable time after notice, repair, replace, correct or re-perform any defective or nonconforming
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Goods or Services. The Warranty Period will be extended by one year on all repaired or replaced Goods.
Whether or not Seller repairs, replaces or corrects any defects within a reasonable time, Seller will
reimburse Platt for all expenses incurred by Platt in connection with such failure and in enforcing Platt's
warranty rights (including without limitation any costs incurred by Platt to replace or repair such products
and Platt's reasonable attorney fees at trial and on appeal). Without limiting any other remedies of Platt, if
Seller cannot correct an infringing use or obtain a transferable, unrestricted license at no cost to Platt, Seller
will, at Platt's option, refund to Platt all payments previously made by Platt for the infringing Goods, and will,
at Platt's election, remove the Goods at Seller's sole expense. Time is of the essence and Seller's failure to
promptly perform any of its warranty obligations will constitute a material breach of this Agreement and each
related Purchase Order. At Platt's election, a material breach under any Purchase Order will be deemed to
be a material breach under all Purchase Orders. If Platt is not the end-user of the Goods and Platt sells such
goods to a third party, then all warranties, rights and remedies available to Platt will extend to such third party
in addition to Platt.
8. Insurance/Risk of Loss. Seller will maintain and keep in full force and effect until the expiration of the
Warranty Period the following insurance: comprehensive general liability insurance, including personal
injury, death, and damage to property, with limits of not less than US $10,000,000 per occurrence; product
liability insurance with limits of not less than US $10,000,000 per occurrence; product Recall Insurance
with limits not less than US $10,000,000 per occurrence; coverage against loss or damage to Goods until
delivered to Platt's facility (or other destination designated by Platt) in an amount equal to the full value of
the Goods; and such other insurance as is standard in Seller's industry and as Platt may reasonably
request. All such insurance will be carried with an insurance company or companies rated "A" or better by
A. M. Best Company and will name Platt Electric Supply, Inc. and Rexel Holding USA Corp. as an
additional insured, subject only to the exceptions contained in a standard Vendor's Broad Form
Endorsement. Seller will deliver to Platt certificates of insurance evidencing the foregoing coverage within
five days after Platt's request. Each certificate of insurance will contain a provision that the insurance will
not be canceled or materially reduced without 30 days' prior written notice of such reduction or
cancellation to Platt.
9. Indemnity. Seller agrees unconditionally and irrevocably to hold harmless, indemnify and defend Platt
(including its officers, directors, employees, agents and insurers) from, for and against any and all claims,
demands, lawsuits, losses, damages, injuries (including personal injury, sickness, death, property damage
and recall damage), expenses (including attorney fees in a bankruptcy or any other proceeding, at trial and
on appeal), and other liabilities of any kind or nature, of or to any person or entity (including Platt), whether
in agreement, tort, or otherwise, actually or allegedly arising out of or in connection with the negligent
performance, non-performance or breach by Seller (including its employees, agents, contractors,
subcontractors and consultants), any nonconformity, defect or breach of warranty as to the Goods or
Services, the presence of Seller's agents or employees on Seller's premises, any violation or infringement
by the Goods or Services of any patent, copyright, trademark, trade secret, nondisclosure agreement, or
other proprietary rights of any third party or any dispute under any bankruptcy law.
10. Intellectual Property. Neither party will take any action that might impair in any way any right, title or
interest of the other party in or to any of the parties' respective intellectual property.
11. Independent Contractor. Seller is an independent contractor, and no employment, partnership, or joint
venture relationship will be deemed to exist between Platt and Seller or Seller's employees or agents.
12. Changes. Platt reserves the right at any time to make changes in any one or more of the following:
(a) specifications, drawings and data incorporated in a Purchase Order where the Goods or Services are
to be specially manufactured or provided for Platt; (b) methods of shipment or packing; (c) place of
delivery; (d) time of delivery; and (e) increase or decrease in quantities of Goods and/or Services. If any
change described above causes an increase or decrease in the cost of or the time required for
performance of that Purchase Order, an equitable adjustment will be made in the price or delivery
schedule, or both. Any claim by Seller for adjustment under this clause will be deemed waived unless
asserted in writing within ten business days from receipt by Seller of Platt's request for change.
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13. Termination of Purchase Orders; Returns. Platt may, without cause and at any time prior to shipment
of the Goods or performance of the Services, terminate a Purchase Order in whole or in part without cost
or liability by giving written notice to Seller. With respect to stock Goods that have been shipped, Platt
may return those Goods to Seller for full credit (at a minimum Bi-Annually) as long as (a) the returned
Goods are in saleable condition (whether or not they are in the original packaging) and (b) the Goods have
not been discontinued by Seller (stock Goods will be deemed to be discontinued by Seller 90 days after
Platt receives written notice that Seller intends to discontinue those Goods). With no less than sixty (60)
days prior notification in writing, Supplier shall notify Platt of all Products that are to become Obsolete or
Discontinued by the Supplier or are to be removed from Supplier’s current price list. Platt shall have the
right to return for full credit of the original purchase price, without limitation as to the dollar amount and
whether or not they are in the original packaging, all Products that are to become Obsolete or
Discontinued by the Supplier or will be removed from Supplier’s Current Price List: provided Platt returns
such Products within ninety (90) days after Platt receives written notice that such Products are to become
obsolete, discontinued or are to be removed from Supplier's price list.
14. Taxes. Unless otherwise agreed in writing, the price of the Goods and Services includes all federal,
state and local sales and use taxes, ad valorem taxes, tariffs, duties, commissions and other similar
charges, whether domestic or foreign, imposed on the Goods or Services, or any part of the transaction in
this Agreement. Seller will timely pay all taxes to the appropriate authorities and properly file all tax
returns. Seller agrees to hold harmless, indemnify and reimburse Platt for any such taxes (including
penalties and interest) that Platt may be required to pay.
15. Most Favored Customer. Platt will not be billed at prices higher or be required to make payment
earlier than stated in a Purchase Order unless authorized by Platt in writing. Seller represents and
warrants that (a) the price(s) charged for the Goods or Services are the lowest price(s) charged by Seller
to purchasers of a class similar to Platt; (b) payment terms are the most generous given to any of Seller's
customers for quantities similar to those specified in that Purchase Order; and (c) the price(s) charged for
the Goods are no higher than that specified in any exhibit to this Agreement. In the event that prior to final
delivery of Goods or completion of performance Seller sells or offers to sell to a third party Goods or
Services substantially of the same kind as ordered in a Purchase Order at lower prices or on terms more
favorable to Platt than those stated in a Purchase Order or this Agreement, or both, Seller agrees that the
prices and terms in that Purchase Order will be automatically revised to equal the lowest prices and most
favorable terms at which Seller sold or offered such Goods and Services, and Platt will make payment
accordingly. In the event Platt becomes entitled to lower prices, but has made payment in excess of the
lower prices, Seller will promptly refund the difference in prices to Platt. Seller agrees to meet the price of
legitimate competition or accept cancellation and termination of a Purchase Order by Platt without any
claim for costs or damages.
16. Security Agreement. To the extent Platt has made any payments to Seller, Seller grants to Platt a
continuing security interest in all or any part of the Goods, whether or not completed, that are identifiable
to this Agreement. Seller expressly authorizes Platt to file any UCC financing statements and/or notify
other secured parties to obtain priority over any competing security interest in the Goods.
17. MSDS Sheets. Seller will provide one MSDS Sheet for each individual item of a Good at no cost to
Platt. For example, if Platt purchases a case of 24 items of a Good, Seller will send Platt 24 MSDS sheets
for those items. Vendor shall also make available MSDS at vendors Web site.
18. Nonsolicitation. From the date Seller first delivers Goods to Platt or to one of Platt's Customers and for
a period of one (1) year after the date of Seller's last delivery of a Good to Platt or to one of Platt's
Customers, Seller will not, without the written consent of Platt's President or Chief Executive Officer,
directly or indirectly solicit, divert or hire (or attempt to solicit, divert or hire) for itself or for any other entity,
any person that is, or within one year of the date of solicitation, diversion or hiring was, an employee or
independent contractor of Platt, whether that person was a full-time, part-time or temporary employee or
contractor and whether or not that person's employment or engagement by Platt was for a fixed period or
at will.
19. Compliance with Law. Both Platt and Seller will at all times comply with all State and Federal
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applicable laws, rules and regulations in connection with the Goods and Services subject to this
agreement including but not limited to 41 CFR 60-250.5(a) regarding Equal Opportunity and all laws of
Executive order 11246, as amended and/or Section 503 of the Rehabilitation Act of 1973, as amended,
and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), FAR
52.213-3 Offeror Representations and Certifications- Commercial Items, FAR 52.222-21 Prohibition of
Segregated Facilities, FAR 52.223-5 Certification Regarding a Drug-Free Workplace, FAR 52.222-3
Convict Labor (June 2003)(E.O. 11755), FAR 52.222-19 Child labor-Cooperation with Authorities and
Remedies (Jan 2004)(E.O. 13126), California Transparency in Supply Chain Act (SB 657), Certification
Regarding Payments to Influence Federal Transactions (31 U.S.C. 1352) (Applies only if the contract is
expected to exceed $100,000.) Seller attests that they are not barred or suspended from providing goods
or services to any State or any Federal agency as defined in Executive Order 12549. Upon Platt’s request
Seller agrees to list all Products’ Origin as defined in the Buy American Act 41 U.S.C 10a, FAR 52.225-1
through 52.225-11, & DFAR 252.225-7000.as amended (38 U.S.C. 4212).
20. Assignment. Without prior written consent of Platt, Seller may not assign all or any part of its duties or
obligations, whether by transfer, merger, operation of law or otherwise, but may subcontract portions not
manufactured or performed by Seller provided that each subcontractor agrees to these terms and
conditions. In the event of any subcontract or assignment, Seller will remain liable and responsible for the
subcontractor's performance of such obligations. The rights and duties of the parties under this
Agreement will inure to the benefit of and bind the parties, their successors and permitted assigns. There
will be no restriction on the resale, assignment or transfer by Platt of the Goods or Services.
21. Waiver. No delay or omission in the exercise of any right or remedy will be deemed a waiver of any
right or remedy. No waiver of any term, condition, default, breach, right or remedy under this Agreement
or any Purchase Order will be valid or binding unless executed in writing by the party making the waiver.
No waiver will constitute a waiver of any other term, condition, default, breach, right or remedy under this
Agreement or any Purchase Order, nor will any waiver constitute a continuing waiver.
22. Modification. This Agreement will not be amended, supplemented, or modified in any way except by a
writing signed by the party against whom enforcement is sought.
23. Severability. If a court of competent jurisdiction or arbitrator finds any term of this Agreement or any
Purchase Order to be invalid or unenforceable for any reason as to any person or circumstance, then the
term will continue in effect only to the extent that it remains valid, and the court's finding will not render that
term invalid or unenforceable as to any other person or circumstance; and all other terms in all other
respects will remain valid and enforceable.
24. Miscellaneous.
(a) All remedies set forth in this Agreement or in any Purchase Order are cumulative and are
in addition to any other available legal or equitable remedies. Platt may offset against any amount payable
to Seller under any or all Purchase Orders any amount owing to Platt by Seller.
(b) This Agreement and each Purchase Order will be governed in all respects by the internal
laws of the state of Oregon, U.S.A., without regard to choice of law provisions, and not by the 1980 U.N.
Convention on Agreements for the International Sale of Goods.
(c) Any and all disputes arising out of or in connection with this Agreement or any Purchase
Order will, at the option of Platt, be resolved by binding arbitration by a single neutral arbitrator in the State
of Oregon in accordance with the rules of the Arbitration Service of Portland, Inc.
(d) Venue of any arbitration or other legal action arising out of or in connection with this
Agreement or any Purchase Order will be at the sole option of Platt. Platt and Seller consent to the
exclusive jurisdiction of and venue in any state or federal court located in Oregon.
(e) The prevailing party in any arbitration or other legal proceeding will be entitled to recover
its costs and expenses, including expert witness and attorney fees (including before trial, at trial and on
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appeal) in addition to any other costs allowed by law. "Prevailing party" means the party that prevails
either affirmatively or by means of a successful defense with respect to claims having the greatest value or
importance as reasonably determined by the arbitrator or the court with jurisdiction over the matter. Seller
consents to service of process by certified or registered mail at the address for Seller set forth in the first
paragraph of this Agreement
(f) Seller agrees that any ambiguity, contradiction or inconsistency will not be construed
against Platt due to the fact that Platt drafted this Agreement.
(g) If any portion of this Agreement or any Purchase Order is found to be unenforceable, such
finding will not invalidate the remainder of this Agreement or that Purchase Order.
(h) Any delay in enforcing or any failure to enforce any provision of this Agreement or any
Purchase Order will not be deemed a waiver of any other or subsequent breach of any provisions of this
Agreement or that Purchase Order.
(i) Caption headings are for convenience of reference only and will not affect the
interpretation of this Agreement. The words "includes" and "including" are not limiting in any way. The
term "and/or" means each and all of the persons, words, provisions or items connected by that term; i.e., it
has a joint and several meaning.
(j) Seller and Platt, as a condition to transacting business with the other party, each hereby
waives and relinquishes any right to a jury trial it may now or hereafter have under any constitution or law
in any dispute arising out of or relating to this Agreement or any Purchase Order.
(k) Any action for breach of any term of this Agreement or any Purchase Order or any
warranty from Seller to Platt must be commenced within four years after the date Platt's customer receives
delivery of the Goods or Services - except that where a warranty explicitly extends to future performance
of the Goods or Services and discovery of the breach must await the time of such performance, the four
year limitations period will begin when the breach is or should have been discovered.
By Acceptance of a Platt Purchase Order (as Outlined in Section 2 “Acceptance of Purchase
Order”) the Seller acknowledges they have read the entire agreement and fully understands and
agrees to be bound by the terms of this agreement.
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