APM PO Terms 11/2024
The following terms and conditions shall apply to Seller’s provision of either Goods or Services under this Contract.
1. GENERAL. This purchase order (whether used as an offer, acceptance of an offer, or confirmation of a contract) is conditioned on and limited to its terms. By performing or by acknowledging receipt of this purchase order (“Contract”), Seller assents to all its terms and conditions. “Goods and/or Services” shall mean the goods supplied and/or services performed hereunder. Ascend, as defined on front of agreement (“Buyer”) objects to any different or additional terms in Seller’s quotations, acknowledgments, acceptances or similar documents. Specifications, drawings and other attachments or documents referred to herein are incorporated into and made a part of this Contract. Notwithstanding the foregoing, if Buyer and Seller have a fully executed agreement pre-dating this Contract (such as a Master Agreement, Master Services Agreement), terms of that agreement shall apply and supersede the terms and conditions of this Contract.
2. DELIVERY; TITLE. Seller acknowledges that TIME IS OF THE ESSENCE in the performance and delivery of the Goods and/or Services by the date set forth on the face of this Contract. Title to materials, supplies and equipment comprising part of the Goods and/or Services shall pass to Buyer consistent and in alignment with the point of Delivery per the agreed Incoterms rule. Parties agree that any reference to Incoterms will be construed to mean Incoterms 2010 as issued by the International Chamber of Commerce.
3. PAYMENT/TAXES/LIENS. Unless otherwise specified in this Contract, payment is due ninety (90) days after invoice date, or upon completion and delivery of the Goods and/or Services, whichever is later. Buyer’s policy is to issue payments on a weekly basis. Payment by Buyer does not constitute acceptance. Seller’s invoices shall list taxes separately. Buyer is liable only for taxes that Seller is authorized to collect from Buyer by law. Final invoices must be submitted by Seller to Buyer within one hundred and eighty (180) calendar days after delivery of Goods or performance of Services. Buyer shall have no obligation to reimburse Seller for Goods or Services for which invoices are submitted for payment after such one hundred and eighty (180) calendar day period.
4. INSURANCE. Prior to performance of any Goods and/or Services under this Contract, Seller shall obtain, at its own expense, insurance that complies with Buyer’s insurance and safety requirements at least as required by law or herein. In addition, if Seller enters Buyer’s premises, Seller shall: maintain the following minimum insurance: (i) Workers’ Compensation – Statutory; (ii) Employer’s Liability $1,000,000 each accident/disease-each employee/disease – policy limit; (iii) Commercial General Liability (Bodily Injury, Property Damage, Products and Completed Operations and contractual liability on an occurrence form of policy naming Buyer as additional insured) – $2,000,000 each occurrence, combined single limit; (iv) Comprehensive or Commercial Automobile Liability (Bodily Injury or Property Damage for owned, non-owned and hired vehicles and naming Buyer as additional insured) – $1,000,000 each occurrence, combined single limit; (v) Umbrella Liability Insurance – $5,000,000 each occurrence, excess coverage over underlying primary insurance required and naming Buyer as additional insured. Seller will secure from its Workers’ Compensation and Employer’s Liability carrier a waiver of subrogation in favor of Buyer, its employees and agents and furnish Buyer certificates confirming such coverage.
5. INDEMNIFICATION. Seller shall protect, defend, indemnify and hold harmless Buyer, its parent, partners, subsidiaries, affiliates, insurers, successors and assigns and each of their past, present or future respective directors, officers, agents and employees (“Buyer Group”) from and against any costs (including reasonable attorneys’ fees and expert witness fees), losses, liabilities, claims, demands, damages, or causes of action (hereinafter “Claim(s)”) of third parties, of every kind and character, arising out of, resulting from, or related, directly or indirectly, to the performance or nonperformance of Seller, Seller’s employees, affiliates, representatives, and Subcontractors of any tier (“Seller Group”), except to the proportionate extent such Claim is caused by the negligence or willful misconduct of Buyer. This indemnity is separate from Seller’s insurance, and Seller will be responsible even if Seller’s insurance carrier denies coverage.
6. DRAWINGS/SPECIFICATIONS/INSPECTIONS. Buyer shall have access to Seller’s facilities to inspect the Goods and/or Services at all reasonable times. No such approval/inspection shall relieve Seller of its obligations. If requested, Seller shall submit drawings and specifications (“Descriptions”) to Buyer for approval. All Descriptions shall be Buyer’s property, and Seller shall not use or permit others to use such Descriptions for any other work.
7. INTELLECTUAL PROPERTY. No right, title or interest in Seller Intellectual Property will be transferred to Buyer under this Contract; provided, however, that Seller hereby grants Buyer an irrevocable, royalty free, nontransferable (except to Buyer’s affiliates), nonexclusive license to use any and all Seller Intellectual Property necessary for the design, installation, erection or use (including operation, maintenance, repair, reconstruction and modification) of Services and/or Goods provided pursuant to this Contract. As used herein, “Seller Intellectual Property” shall mean any Seller information, in any form, that includes trade secrets, copyrights, inventions, patents, discoveries, know-how, samples, techniques, specifications, drawings, designs, design concepts, manuals, processes and testing methodology, which existed prior to or is created independent of the performance of the Contract. Seller Intellectual Property shall not include any Buyer data or Buyer Confidential Information. Seller shall indemnify, defend and hold Buyer harmless: (a) from claims for infringement of any patent, copyright, trademark or trade name because of the manufacture, use, or sale of the Goods and/or Services, and (b) for any costs, expenses, liability and damages, including attorneys’ fees, which Buyer may incur as a result of any alleged infringement. Buyer shall give Seller written notice of any such suit or claim and, at Buyer’s request, Seller shall promptly assume its defense.
8. CONFIDENTIALITY. Seller may gain information about Buyer’s operations, plans, equipment, finances, products, processes and customers (“Buyer Information”) under or related to this Contract. Seller shall cause all Buyer Information to be kept confidential and not to be disclosed to others except with Buyer’s prior written consent. Nothing in this paragraph shall prevent Seller from disclosing information which it can show: (a) is published and in the public domain other than through acts or omissions of Seller, its employees or agents; (b) was rightfully made known to Seller by third parties (other than those acting directly or indirectly for Buyer), without restriction on disclosure; or (c) was known at the time of entering into this Contract, and was not acquired from Buyer, its employees or agents of either. Seller shall deliver to Buyer, upon request, all drawings, specifications, memoranda, notes, materials and all copies containing Buyer Information. These obligations shall continue beyond the termination of this Contract.
9. COMPLIANCE WITH LAWS & PERMITS. Seller represents and warrants that the Goods and/or Services will comply with all applicable federal, state and local laws, rules, regulations, and executive orders at the time of delivery or performance, including, without limitation, all environmental, health and safety laws, the U.S. Foreign Corrupt Practices Act, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 6901 et seq. Seller agrees to obtain and maintain all required federal, state, and local permits and licenses required for performance of Services or delivery of Materials at Seller’s sole cost and expense. SELLER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS BUYER GROUP (AS DEFINED HEREIN) FROM ANY PENALTY ASSERTED AGAINST BUYER, LIABILITY, OR CLAIM TO THE EXTENT RESULTING DIRECTLY OR INDIRECTLY FROM NONCOMPLIANCE BY SELLER, OR ANY OF ITS SUBCONTRACTORS, WITH ANY APPLICABLE LAW, ORDINANCE, RULE OR REGULATION. Seller/Supplier acknowledges that U.S. Customs and Border Protection (“CBP”) is actively enforcing the mandatory pre-export declaration referred to as the Importer Security Filing (ISF), which applies to all ocean container shipments (“LCL” and “FCL”) destined for import into the U.S. Buyer, when designated as the importer of record, is responsible for timely, complete, and accurate submission of ISF data to CBP. Seller agrees to fully cooperate and to cause its freight forwarder, carriers, agents and/or representatives to provide the required data elements on the worksheet provided by Buyer no later than 72 hours prior to the ship sailing. Seller also agrees to provide timely written notification of the same as soon as changes are known. Items are considered on COMPLIANCE HOLD and must not be laden on the vessel until “OK to load” authorization is received from Buyer. If Seller furnished items set sail in violation of the filing requirements of the ISF regulations, Buyer may cause such items to be returned to Seller for reshipment in order to meet the ISF filing requirements. Seller agrees to reimburse, and indemnify Buyer against, any expenses Buyer incurs in connection with return and reshipment of such items, as well as any penalties, fines and other expenses incurred by Buyer.
10. CANCELLATION/TERMINATION. Buyer reserves the right to cancel any portion or all of this Contract if any shipment is not made as specified by this Contract. Buyer may also terminate this Contract at any time for its own convenience. Upon such notice, Seller shall stop all work and follow Buyer’s instructions with respect to the disposition of materials in process, title to which shall vest in Buyer. Buyer shall pay Seller’s actual and documented costs for work performed through the date of termination and Seller shall have a duty to mitigate such costs or as otherwise agreed to by the Parties on this Contract.
11. CHANGES. Buyer may change specifications, packaging, delivery and transportation at any time. If the change affects the cost or time required for performance, a fair adjustment will be made and confirmed by Buyer issuing a Change Order. Seller shall notify Buyer prior to making any changes to raw materials, methods of manufacture, production equipment or locations involved in the performance of this Contract and shall obtain Buyer’s written consent prior to making any such changes(s). Buyer may terminate this Contract if Buyer does not consent to the changes. This Contract may not be performed at higher prices than last quoted to BUYER without 30 days’ notice to, and acceptance by, BUYER.
12. ASSIGNMENT/ SUBCONTRACTING/ INDEPENDENT CONTRACTOR. Seller shall not assign, subcontract or delegate all or any part of this Contract without Buyer’s prior written consent. Assignment with consent shall not relieve Seller of any obligations hereunder. Seller is and shall remain an independent contractor.
13. BUYER’S PRINCIPLES AND POLICIES. Seller shall comply with Buyer’s Supplier Principles and Policies (“Supplier Principles”) available on Buyer’s web site at https://www.ascendmaterials.com/suppliers/supplier-principles/ and incorporated by reference and made part of this Contract. In the event there is a conflict between the Supplier Principles and the terms and conditions of this Contract, the terms and conditions of this Contract shall govern. Buyer may modify the Supplier Principles at any time by posting notice of such modified changes on Buyer’s web site. Seller may, as an alternative and subject to Buyer’s prior review and written approval, comply with Seller’s own code of conduct if it is deemed to be substantially similar to Buyer’s Supplier Principles.
14. INDEPENDENT CONTRACTOR. Seller is an independent contractor in all respects with regard to the performance of Services or provision of Goods. Seller, Seller’s employees or subcontractors performing Services or providing Goods will not be considered for any purpose to be Buyer’s employees, agents, or representatives. Buyer is interested in the results of Services or provision of Goods and will not direct or control the manner or method in which Seller performs Services or provides Goods.
15. GOVERNING LAW AND MISCELLANEOUS. THIS CONTRACT INCORPORATES THE UNIFORM COMMERCIAL CODE AS ADOPTED IN TEXAS, AND SHALL BE CONTROLLED BY AND INTERPRETED ACCORDING TO TEXAS LAWS. This Contract is the complete understanding and statement of the agreement between the Parties. Any modification, rescission or waiver must be in writing and signed by both parties. A waiver of any breach of these terms shall not waive any other breach of this Contract. Section headings are provided for convenience only. The obligations under Sections 3, 7, 8, 11 and 13 of this Contract are of a continuing nature and shall survive any termination of the Contract, any suspension, completion or acceptance of the Goods and/or Services, or final payment to Seller. Seller shall bind all its subcontractors to the terms of this Contract that are applicable to the subcontracted Goods and/or Services.
The following terms shall apply to the extent that Seller performs Services for Buyer as a part of this Contract.
1. SAFETY. If Services to be performed, or Goods being provided, require that Seller or Seller’s subcontractors enter Buyer’s premises, Seller agrees that Seller or Seller’s subcontractors will perform Services or provide Materials in a safe and prudent manner in accordance with Buyer’s site-specific requirements, rules, practices and policies then in effect at Buyer’s premises (“Site-Specific Requirements”). Seller agrees to comply, and shall ensure Seller’s subcontractors agree to comply, with such Site-Specific Requirements while performing Services or delivering Goods at Buyer’s premises. Seller will be solely responsible for notifying and training Seller’s employees, subcontractors, and agents with respect to Buyer’s Site-Specific Requirements, and all applicable laws and regulations. Seller will cause Seller’s employees, agents and subcontractors (and their employees) to wear all personal protective equipment required by applicable law, and to comply with Buyer’s area work permits, or other Site-Specific Requirements. If Buyer notifies Seller that Seller or Seller’s subcontractors are not in compliance with the terms of this provision, Seller will immediately make all reasonable efforts to correct the non-complying condition. If Seller fails to do so, Buyer has the right to require Seller or Seller’s subcontractors to stop performance of all or any part of Services or delivery of Goods. Seller will not be entitled to an extension of time to complete the performance of Services, or delivery of Goods, or to any compensation for additional costs incurred, damages suffered, or for any time lost during such suspension.
2. SITE COMPLIANCE. Plant site compliance access is managed by Avetta monitoring service for Buyer. Seller will provide Avetta with Certificates of Insurance evidencing the coverage required herein or in any agreement between the parties. Seller shall provide Buyer with at least thirty (30) days’ prior written notice of cancellation, material change in, reduction, or expiration of any such insurance coverage or endorsements. Contractors performing mechanical services or general labor on site must forward a copy of the required OSHA logs and insurance into their connected Avetta account. Service suppliers and consultants accessing Buyer’s site need to forward a copy of their required insurance per agreement or purchase order to: Ascend Performance Materials, Attn: Treasury Dept., 1010 Travis Street, Suite 900, Houston, TX 77002.
3. SERVICES WARRANTY. Seller warrants that the Services provided under this Contract will: (a) be performed in a good, workmanlike, efficient, and safe manner, in compliance with all applicable laws and in accordance with the latest recognized industry standards as practiced by companies performing similar services, and free of defects for one (1) year from date of final payment (the “Services Warranty Period”), (b) consist of furnishing all operations, labor, equipment, materials and supplies and doing all things necessary for proper performance as described in this Contract, (c) conform to agreed upon specifications, drawings, data and samples and all technical requirements in Seller’s proposals, and (d) be merchantable and fit for the purposes sold. This warranty continues in effect after acceptance and is in addition to warranties offered by Seller. Seller shall assign to Buyer all applicable manufacturers’ warranties. Seller will repair or replace, at Seller’s sole cost and expense, all defects in Services or workmanship which Buyer notifies Seller about (i) while Seller is performing the Services and also (ii) during the Services Warranty Period. Seller shall promptly reimburse Buyer for its costs in remedying defects or, at Buyer’s option, Seller shall remedy such defects at its own expense and with all possible speed. In addition to its other rights, Buyer may withhold money otherwise due Seller to cover Buyer’s costs and damages.
4. COMPLETION AND WAIVER OF LIENS. Upon completion of Services, or delivery of Materials, and Buyer’s final inspection and approval of Services, Seller will submit Seller’s invoice for final payment and will attach all required guarantees, permits, and certificates, plus a waiver of lien certifying that Seller’s subcontractors have been paid for all labor and materials furnished as part of the performance of Services or delivery of Materials. All required documentation, such as a waiver of lien, should be submitted to Buyer’s purchasing representative specified in this Contract. Buyer will not be obligated to make final payment to Seller until all the above conditions have been met.
The following terms shall apply to the extent that Seller sells, and Buyer purchases Goods as a part of this Contract.
1. PACKING. The Goods shall be properly packaged for shipment. Each package shall be numbered and labeled with Buyer’s order number, stock number, contents and weight and shall contain an itemized packing slip. No charges will be allowed for packing, handling, crating, freight express, storage, drayage or cartage unless specified on the face hereof. Seller shall be responsible for any loss or damage due to its failure to properly preserve, package, handle (before delivery as per the applicable Incoterm) or pack the Goods; Buyer shall not be required to assert any claims for such loss or damage against the common carrier involved.
2. ACCEPTANCE OF GOODS. Payment for the Goods under this Contract shall not constitute acceptance thereof. All Goods shall be received subject to inspections and a reasonable opportunity for rejection by Buyer. Defective Goods, as well as Goods that do not meet applicable specifications, may be held by Buyer for inspection by Seller and at risk and expense of Seller. If instructions are not received within fifteen (15) days after notice of rejection, Goods may be returned or sold for account and at expense of Seller. No Goods returned as defective shall be replaced without the written permission of Buyer.
3. WARRANTY OF GOODS. Seller warrants that Goods which Seller or Seller’s subcontractors delivers under this Contract will be new, of good quality, and conform to the description stated in the Contract. Seller agrees to promptly repair or replace any defective Goods that Buyer has notified Seller about within the later of eighteen (18) months following the date of delivery, or twelve (12) months following the date of installation. If Seller fails to promptly repair or replace the defective Goods, Seller agrees that Buyer will be entitled to repair or replace the Goods, and Seller agrees to reimburse Buyer for Buyer’s reasonable cost to repair or replace the defective Goods. Buyer will be entitled to inspect all Goods before, upon, or within a reasonable time after delivery pursuant to this Contract. No substitution of any Goods will be made without Buyer’s written approval. Buyer reserves the right to reject Goods which have been reworked.
1. APPLICABLE LAW AND DISPUTE RESOLUTION FOR INTERNATIONAL TRANSACTIONS. THIS CONTRACT INCORPORATES THE UNIFORM COMMERCIAL CODE AS ADOPTED IN TEXAS, AND SHALL BE CONTROLLED BY AND INTERPRETED ACCORDING TO TEXAS LAWS. Any dispute, claim, or controversy arising out of or relating to this Contract (“Dispute”), shall be resolved in accordance with the procedures specified in this Section, which shall be the sole and exclusive procedures for the resolution of any such Disputes.
(a) In the event of a Dispute, the Parties shall first attempt to resolve such Dispute by good faith negotiations between their representatives who have authority to settle the Dispute. Any Party may give the other Party written notice of Dispute. If such Dispute is not resolved by good faith negotiations within thirty (30) days after the delivery of the written notice of Dispute, or such other time as the Parties may agree in writing, then either Party may initiate arbitration proceedings as provided below.
(b) If the Dispute is not resolved by good faith negotiations as provided above, the Dispute shall be finally resolved by arbitration administered by the International Court of Arbitration of the International Chamber of Commerce (“ICC”) under its Rules of Arbitration then in effect (“ICC Rules”). The seat of the arbitration shall be New York, New York, USA, and the language of the arbitration shall be English. The Dispute shall be heard and determined by an arbitral tribunal consisting of three arbitrators. The clamant and the Respondent shall each nominate one person to act as arbitrator, in accordance with the ICC Rules. The two persons so nominated and confirmed shall, within thirty (30) days of their confirmation, or such other time as the Parties may agree, nominate a third person who will serve as the chairperson of the arbitral tribunal. The arbitrators so selected shall each be qualified by education, training, and experience to hear and determine matters in the nature of the Dispute. If a Party fails to nominate an arbitrator as provided herein, or if the arbitrators nominated by the Parties and confirmed by the ICC are unable or fail to agree upon nomination of a third arbitrator within thirty (30) days of their confirmation, or such other time as the Parties may agree in writing, then that arbitrator shall be appointed in accordance with the Rules of Arbitration of ICC. Should an arbitrator die, resign, refuse to act, or become incapable of performing his or her functions as an arbitrator, the ICC may declare a vacancy on the arbitral tribunal. Such vacancy shall be filled by the method by which that arbitrator was originally appointed.
(c) The award of the arbitral tribunal shall be final and binding on both Parties. Judgment on the Award may be entered by any court of competent jurisdiction.
2. APPLICABLE LAW AND DISPUTE RESOLUTION FOR CHINESE DOMESTIC TRANSACTIONS. If both Parties are legal entities registered in People’s Republic of China (“PRC”), the validity, interpretation and performance of this Contract and any dispute connected herewith shall be governed and construed in accordance with PRC laws. If this Contract is written in English and Chinese, in case of any discrepancy between the two versions, the English version shall prevail. Unless otherwise mutually agreed by the parties, any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration which shall be conducted in Shanghai in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. All the arbitration costs including the attorney fees and costs of witness/experts shall be borne by the losing party.
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