1.Terms and Acceptance.
The terms and conditions set forth herein (“Standard Terms and Conditions”) and in any special terms and conditions annexed hereto (“Special Terms and Conditions”) shall constitute a part of and be incorporated into every purchase order (“Order”) issued (electronic or otherwise) by Kawasaki Motors Manufacturing Corp., U.S.A. (“Kawasaki”) to its vendors or suppliers (hereinafter a “Vendor”). All Orders are conditioned upon acceptance by the Vendor of all Kawasaki Terms (as defined below) without any change or modification whatsoever. Acceptance of an Order by acknowledgment, bill of lading, invoice, shipment, or other performance or communication shall be unqualified, unconditional and expressly limited to these Standard Terms and Conditions, any applicable Special Terms and Conditions, and those terms and conditions which appear on the face of the Order (collectively, “Kawasaki Terms”). All other offers by Vendor made at any time are hereby rejected. NO WAIVER, ALTERATION, OR MODIFICATION OF KAWASAKI TERMS SHALL BE VALID UNLESS EXPRESSLY AGREED TO IN WRITING BY A CORPORATE OFFICER OF KAWASAKI. ANY DIFFERENT, ADDITIONAL OR CONFLICTING TERMS OR CONDITIONS THAT MAY APPEAR IN VENDOR’S QUOTATIONS, ACKNOWLEDGMENTS, BILLS OF LADING, INVOICES, DELIVERY TICKETS OR IN ANY OTHER COMMUNICATIONS FROM VENDOR ARE EXPRESSLY OBJECTED TO AND REJECTED BY KAWASAKI. ACCEPTANCE OF MATERIALS, OR PAYMENT OR INACTION BY KAWASAKI, SHALL NOT CONSTITUTE KAWASAKI’S CONSENT TO OR ACCEPTANCE OF ANY SUCH TERMS.
Receipt and acceptance of each Order must be confirmed promptly electronically in accordance with Kawasaki’s KMM Rail Car Supplier Manual (which is incorporated herein as if fully set forth) but Vendor’s failure to so confirm will not constitute or evidence failure to accept such Order on Kawasaki Terms.
2.Packing, Shipping.
Delivery shall be made as specified in each Order and without charge by Vendor for boxing, crating, cartage, or storage, unless otherwise expressly specified on the Order. All items or materials identified on the Order (the “Goods”) shall be suitably packed to secure the lowest transportation cost possible and to protect against damage during transit or from weather. Materials shall be described on each bill of lading in conformity with the appropriate freight classifications. Kawasaki’s purchase order numbers, parts numbers, correct quantity, and Vendor name must be plainly marked on all invoices, packages, bills of lading, delivery tickets and shipping orders. A packing list shall accompany each box or package shipped to Kawasaki and shall be located on the outside thereof, showing the purchase order number, correct quantity, Kawasaki part number, Vendor name and any other information required by Kawasaki relating thereto. Any additional charges, costs, or expenses resulting from Vendor’s failure to comply with this provision shall be payable by Vendor. Kawasaki’s weight and quantity shall be final, conclusive, and binding on shipments not accompanied by a packing list. Carrier selection by Vendor shall be in accordance with the applicable terms of the KMM Rail Car Supplier Manual.
3.Time of the Essence.
Time is of the essence in the performance by Vendor of all the terms and conditions of each and every Order. Kawasaki, in addition to any other remedy provided herein or under applicable law, reserves the right to reject Goods and cancel all or any portion of any Order, without any liability of Kawasaki to Vendor, in the event of Vendor’s failure to deliver Goods at the time(s) and place(s) specified on such Order. Kawasaki’s acceptance of any part of a shipment not delivered as specified herein shall not obligate it to accept the remainder of that shipment or any prior or future shipments.
4.Delivery.
Delivery shall be strictly in accordance with the delivery date(s) or schedule set forth on the applicable Order, it being understood that Kawasaki has made or will make commitments to its customer(s) with respect to the Goods. If Vendor is unable to deliver the Goods in accordance with the time(s) and place(s) specified on the applicable Order, and Kawasaki elects, at its sole option, to expedite shipment of the Goods, Vendor shall be liable for the cost differential between the method of shipping specified and the actual expedited rate incurred. Shipments of Goods in excess or in advance of Kawasaki’s requirements contained in an Order are at Vendor’s risk and expense. Kawasaki reserves the right to return to Vendor, at Vendor’s sole expense, all Goods received prior to the scheduled delivery date(s). Without loss of any rights or privileges under any Order, including, but not limited to, the right to receive any discount privileges, Kawasaki reserves the right to pay invoices covering items shipped in advance of the scheduled delivery date based upon the date specified for payment as if delivery had occurred on the scheduled delivery date on the Order. Delays in receiving invoices, errors or omissions on invoices, or lack of supporting documentation required by the terms of the applicable Order will be cause for withholding settlement in regard to payment without losing any discount privilege to which Kawasaki is otherwise entitled. Vendor agrees to assume all additional or premium transportation charges, special handling expenses, and costs to store materials incurred or required as a result of Vendor’s failure to comply with Kawasaki’s delivery schedule or routing instructions, or with the packing requirements of the carrier. Kawasaki’s right to insist upon prompt delivery of the Goods as specified herein shall be in addition to any other rights or remedies provided under applicable law, and Vendor shall be liable for all costs incurred by Kawasaki due to any downtime in production at Kawasaki resulting from Vendor’s failure to meet delivery schedules. All shipments of Goods shall be delivered in accordance with Kawasaki’s instructions and the applicable terms of the KMM Rail Car Supplier Manual, and unless specified otherwise, shall be D.D.P Vendor’s plant.
5.Risk of Loss.
Risk of loss shall remain with Vendor until the Goods are delivered to Kawasaki at Vendor’s plant; however, Kawasaki shall have the right to inspect and reject the Goods at any time upon or after arrival at Kawasaki’s plant. Passing of the risk of loss to Kawasaki shall not relieve Vendor of its responsibility for defective, non-conforming, or damaged Goods.
6.Specifications; Forecasts.
All Goods furnished under each Order shall strictly conform to the specifications, drawings, or plans (the “Specifications”) applicable to the Goods. Notwithstanding anything to the contrary, Vendor acknowledges that any estimates or forecasts furnished by Kawasaki to Vendor shall not constitute any binding commitment on Kawasaki’s part to purchase such items or materials.
7.Warranty
7.1 (a) To the extent that Vendor is only a distributor of Goods designed, manufactured, assembled, tested, or modified by others, and is not involved in any manner in the design, manufacture, assembly, testing, or modification of any of the Goods prior to sale to Kawasaki (a “Distributor”), Vendor expressly warrants that all Goods and any component part thereof, furnished to Kawasaki and its customers, shall for the duration of the warranty period specified herein (i) be in strict compliance with the Specifications provided by Kawasaki or its customers, (ii) be new, unless otherwise specified on the Order, (iii) be of the best quality of its respective kind and free from faulty workmanship or material, (iv) be merchantable, (v) upon acceptance by Kawasaki in accordance with the terms and provisions of the applicable Order, convey to Kawasaki and its customers good and marketable title to the Goods free and clear of any lien, encumbrance, or other obligation of any kind, (vi) not be sold in violation of any law, regulation, order or rule, and (vii) be in operating condition and will operate satisfactorily for the warranty period. The warranty period applicable to Goods purchased from a Distributor shall be the manufacturer’s standard warranty period.
(b) In the event Kawasaki notifies Vendor during the warranty period of any defect or failure of the Goods to conform to all applicable warranties, Vendor shall immediately replace or repair at its own cost and expense all Goods found defective or not in conformity with any applicable warranties. Vendor shall be liable for payment of all costs associated with the return of all defective or non-conforming Goods; all costs of transportation; all freight charges both from and to Kawasaki or the ultimate end user; and the administrative fee relating to reject reports for defective or non-conforming Goods (as set forth in the KMM Rail Car Supplier Manual). To the extent caused, either in whole or in part, by any defective or non-conforming Goods, Vendor shall be liable for and shall indemnify, defend and hold harmless Kawasaki, KHI, and KRC from, (i) all costs incurred by Kawasaki resulting from down time or delays on its assembly lines, (ii) damage to other property, (iii) all direct costs, expenses, and fees incurred by Kawasaki, KHI, and/or KRC and in any manner related to or arising out of defective or non-conforming Goods and associated products (including down-time on assembly lines), and (iv) the wages, benefits, overhead and administration expenses of any employee of Kawasaki, KHI, or KRC or any customer thereof arising out of the defective or non-conforming Goods.
(c) Kawasaki may return, at Vendor’s sole cost and expense, any Goods or any component part thereof found defective or found not to be in conformity with all applicable warranties, and shall be entitled to debit Vendor’s account or otherwise set-off any amount owing from Kawasaki to Vendor the purchase price together with all costs and expenses of the return of the defective or non-conforming Goods.
(d) In the event Vendor fails to proceed diligently to repair or replace any non-conforming or defective Goods (including any component part thereof) within a reasonable time after receipt of notice from Kawasaki of non-conformity, Kawasaki or its customers may undertake replacement or repair of such non-conforming Goods. In such event, Vendor shall be liable for and pay for the costs of the replacement or repair of such non-conforming or defective Goods and shall either credit or reimburse Kawasaki for all such costs and expenses.
7.2 (a) If Vendor is not a Distributor (as defined above), or if Vendor has any involvement in the design, manufacture, assembly, testing, modification, or completion of any Goods, Vendor expressly warrants that all Goods and any component part thereof, furnished to Kawasaki and its customers, shall, for the warranty period set forth below (i) be in strict compliance with the Specifications, (ii) be new, unless otherwise specified on the Order, (iii) be of the best quality of its respective kind and free from faulty workmanship, material or design (except to the extent such design is specifically furnished by Kawasaki), (iv) if Vendor provides the design (which for the purpose of these Standard Terms and Conditions shall include design provided to Vendor by any third party other than Kawasaki), be sufficient to fulfill any operational conditions specified by Kawasaki or its customers, (v) be merchantable and fit for the intended use of such Goods, (vi) not be manufactured or sold in violation of any law, regulation, order or rule, (vii) upon acceptance by Kawasaki in accordance with the terms and provisions of the applicable Order, convey to Kawasaki and its customers good and marketable title to the Goods free and clear of any lien, encumbrance or other obligation of any kind, and (viii) be in operating condition and will operate satisfactorily for the warranty period. The warranty period applicable to such Goods in no event shall be less than the longest duration of the following: (a) one (1) year from delivery and acceptance by Kawasaki, (b) the warranty period applicable to Kawasaki’s or its affiliates’ sales (including Kawasaki Heavy Industries, Ltd. (“KHI”) or Kawasaki Rail Car, Inc. (“KRC”)) to their customers of the Goods or of products which incorporate the Goods, or (c) Vendor’s standard warranty period.
(b) In the event Kawasaki notifies Vendor during the warranty period of any defect or failure of the Goods to conform to all applicable warranties, Vendor shall immediately replace or repair any Goods found defective or not in conformity with any applicable warranties. Vendor shall be liable for payment of all costs associated with the return of all defective or non-conforming Goods; all costs of transportation; all freight charges both from and to Kawasaki or the ultimate end user; all storage costs; all labor, material, service, and other costs incurred by Kawasaki due to any defective or non-conforming Goods; and the administrative fee relating to reject reports for defective or non-conforming Goods (as set forth in the KMM Rail Car Supplier Manual). To the extent caused, either in whole or in part, by any defective or non-conforming Goods, Vendor shall be liable for and shall indemnify, defend and hold harmless Kawasaki, KHI, and KRC from, (i) all costs incurred by Kawasaki resulting from down time or delays on its assembly lines, (ii) damage to other property, (iii) all direct costs, expenses, and fees incurred by Kawasaki, KHI, and/or KRC and in any manner related to or arising out of defective or non-conforming Goods and associated products (including down-time on assembly lines), and (iv) the wages, benefits, overhead and administration expenses of any employee of Kawasaki, KHI, or KRC or any customer thereof arising out of the defective or non-conforming Goods.
(c) Kawasaki may return, at Vendor’s sole cost and expense, any Goods or any component part thereof found defective or found not to be in conformity with all applicable warranties, and shall be entitled to debit Vendor’s account or otherwise set-off any amount owing from Kawasaki to Vendor the purchase price together with all costs and expenses incurred by Kawasaki due to defective or non-conforming Goods.
(d) In the event Vendor fails to proceed diligently to repair or replace any non-conforming or defective Goods (including any component part thereof) within a reasonable time after receipt of notice from Kawasaki of non-conformity, Kawasaki or its customers may undertake replacement or repair of such non-conforming Goods. In such event, Vendor shall be liable for and pay for the costs of the replacement or repair of such non-conforming or defective Goods, together with all other costs and expenses incurred by Kawasaki due to such defective or non-conforming Goods, and shall either credit or reimburse Kawasaki for all costs and expenses related to the repair or replacement of such Goods.
7.3 All warranties of the Goods and related services shall run to Kawasaki and its successors, assigns, customers, and end-users of the Goods. All warranties shall survive inspection, testing, acceptance, and payment. All warranties are in addition to and not in lieu of any other warranties implied or provided by law. Notwithstanding anything to the contrary, neither Kawasaki’s good faith exercise of any of its rights to set-off or debit Vendor’s accounts, nor any dispute between Vendor and Kawasaki or its customers shall entitle Vendor to slow or stop its delivery or performance of other obligations under these Standard Terms and Conditions. Unless terminated in accordance with these Standard Terms and Conditions, Vendor shall continue to fully perform its obligations under any Order notwithstanding any dispute between Vendor and Kawasaki or its customers.
7.4 The warranties, rights and remedies set forth in this Section 7 shall be in addition to those set forth in Section 20 hereof, and nothing in this Section 7 shall be deemed to limit the provisions of Section 20.
8.Infringement.
Vendor represents and warrants that the design (if provided by Vendor), manufacture, use, sale or other distribution of the Goods shall not infringe any patent, trademark, copyright, trade secret or other intellectual property right of any third party. Vendor shall defend, indemnify, and hold Kawasaki, its affiliates, and its customers harmless from any and all claims, costs, damages, or causes of action (including, but not limited to, any claim based upon a theory of unauthorized use or misappropriation) arising out of any claimed infringement of any patent, copyright, trade secret or other intellectual property right in connection with the design (if provided by Vendor), manufacture, sale, use, or other distribution of the Goods. If the sale or use of any of the Goods or any part thereof is held in any such suit or proceeding to constitute an infringement, Kawasaki, in addition to any other right or remedy under applicable law, shall have the right to require Vendor at its sole cost and expense to promptly (a) procure for Kawasaki and its customers the right to sell and use the Goods, (b) replace the Goods with non-infringing goods or equipment of equal or superior quality, (c) modify the Goods so as to make them substantially equal in quality required under the Specifications but not infringing or (d) remove the Goods and refund or credit the purchase price paid to Vendor for such Goods as well as pay all costs and expenses suffered or incurred by Kawasaki on account of Vendor’s failure to provide Goods conforming to the requirements of the Order.
9.Inspections and Rejection.
All Goods shall be subject to inspection and testing by Kawasaki at Vendor’s plant and/or at the designated delivery location. Notwithstanding any inspection of the Goods at Vendor’s plant, final inspection and acceptance of the Goods shall be at the designated Kawasaki delivery location, irrespective of any payment received by Vendor. Kawasaki reserves the right to reject any Goods which do not comply with the Specifications related to the Goods, which are nonconforming or defective, or which violate the warranties contained herein. Inspection and testing of any kind of the Goods by Kawasaki, whether for performance or reliability, shall not negate, diminish or relieve Vendor’s obligations or responsibility under any warranty, express or implied, defense, indemnification, hold harmless or other similar term or provision existing at law or under any Order. In addition to any rights or remedies provided under applicable law, rejected Goods may be returned at Vendor’s cost and expense and Kawasaki may, in its sole discretion, require Vendor to replace such non-conforming Goods as provided herein. Vendor shall be subject to the assessment of an administrative fee relating to reject reports for defective or non-conforming Goods (as set forth in the KMM Rail Car Supplier Manual), and Kawasaki shall be entitled to debit Vendor’s account or otherwise set-off such administrative fees regarding rejection reports. To the extent caused, either in whole or in part, by any defective or non-conforming Goods, Vendor shall be liable for and shall indemnify, defend and hold harmless Kawasaki, KHI, and KRC from, (i) all costs incurred by Kawasaki resulting from down time or delays on its assembly lines, (ii) damage to other property, (iii) all direct costs, expenses, and fees incurred by Kawasaki, KHI, and/or KRC and in any manner related to or arising out of defective or non-conforming Goods and associated products (including down-time on assembly lines), and (iv) the wages, benefits, overhead and administration expenses of any employee of Kawasaki, KHI, or KRC or any customer thereof arising out of the defective or non-conforming Goods.
10.Inspection of Vendor's Facilities.
Vendor agrees to permit Kawasaki’s inspectors and other representatives reasonable access to Vendor’s plant upon 24 hours’ notice for the purpose of inspecting the Goods and manufacturing processes used in connection with the applicable Order.
11.Work Performed on Kawasaki's Facilities.
If any work required to manufacture the Goods in connection with any Order is performed by Vendor on Kawasaki’s premises, Vendor hereby agrees to defend, indemnify and hold Kawasaki harmless from and against any claims, damages, liability, losses, costs or expenses (“Losses”) arising from or in any manner related to Vendor’s work, including any claims based in part upon Kawasaki’s negligence. Vendor’s obligation to indemnify and hold harmless Kawasaki under this paragraph shall be limited to Vendor’s proportionate share of fault or responsibility for any Losses arising from work performed by Vendor or its subcontractors at Kawasaki’s facilities.
12.Special Tools.
Dies, tools, molds, patterns and other such equipment specially developed for and used in the manufacture of the Goods shall be furnished by and at the expense of Vendor, unless otherwise specified on the Order, and shall be kept in good condition and, when necessary, shall be replaced by Vendor without cost or expense to Kawasaki. If any portion of such special tooling is included in the prices of the Goods, Vendor hereby grants Kawasaki an irrevocable option to take possession of and title to such special tooling upon the payment of its net book value less all amounts that Kawasaki had previously paid to Vendor for the cost of such special tooling. If the price stated on the Order includes separately the cost of any such special tooling, such special tooling shall immediately become the property of Kawasaki, and Vendor, to the extent feasible, shall segregate and separately identify such property to third parties. All such special tooling shall be disposed of in accordance with Kawasaki’s reasonable directions upon the completion of all outstanding Orders.
13.Vendor Furnished Property.
Should Vendor actually use any equipment, dies, tooling, molds, patterns, articles or materials furnished by Kawasaki to Vendor in connection with any Order, Vendor acknowledges that it is accepting such equipment, tooling, articles or materials on “AS-IS/WHERE-IS” basis, that Kawasaki shall not have any responsibility or liability for the condition or state of repair for such equipment, tooling, articles or materials, and that Vendor shall have the risk of loss regarding any damage or loss with respect to any such item. The furnishing to Vendor of any equipment, tool, articles, or materials in connection with any Order shall not, unless otherwise expressly provided in writing, be construed to vest title thereto in Vendor. Vendor shall be responsible for all Kawasaki property in its possession and shall return such items to Kawasaki upon completion of use, or such earlier time as Kawasaki may request, in the same condition as when received by Vendor, reasonable wear and tear excepted. Materials, tooling equipment, drawings, ideas and information supplied or paid for by Kawasaki in connection with this Order are owned and shall remain the exclusive property of Kawasaki and shall not be used by Vendor except for work performed for Kawasaki.
14.Intellectual Property Rights.
All drawings, designs, dies, tools, molds, patterns, equipment, and any other such items or information supplied by Kawasaki or its affiliates hereunder (“Proprietary Information”) and proprietary rights embodied therein, are reserved and their use is restricted to the work to be performed by Vendor for Kawasaki. Vendor agrees not to make any disclosures, with respect to such Proprietary Information, except as necessary in performing hereunder, or as specifically authorized in writing by Kawasaki. Where payment is made for experimental, developmental, or research work performed hereunder, Vendor shall disclose and does hereby assign to Kawasaki all right, title, and interest in any inventions resulting therefrom and does grant Kawasaki the right to use, for any purpose, all data specified to be delivered under this Order.
15.Confidential Information.
As a result of Vendor’s anticipated or actual performance under each Order, Vendor may receive or become exposed to (a) Kawasaki’s Proprietary Information, (b) any other intangible information from Kawasaki or its affiliates expressed in the form of ideas, data, programs, technical, business or other types of intangible information, or (c) Kawasaki’s documents, prints, tapes, discs, or other types of tangible information (such tangible and intangible information hereinafter referred to as ”Information”). Vendor agrees to (x) keep all such Information confidential and use such Information only for performing under the applicable Order, (y) inform Vendor’s employees, contractors and agents of their obligations to keep such Information confidential and require those employees, contractors and agents to honor such obligations, and (z) promptly surrender or destroy such Information, and any copies thereof, free-of-charge, when requested to do so by Kawasaki.
16.Insurance.
Vendor agrees, if and when requested by Kawasaki, to procure a policy or policies of insurance in form and on terms and conditions satisfactory to Kawasaki insuring all property on Vendor’s premises owned by Kawasaki against loss or damage resulting from fire, malicious mischief, vandalism and other perils which may be included within the term “extended coverage.” Satisfactory evidence of such insurance shall be submitted to Kawasaki within a reasonable period of time after any such request by Kawasaki. All such insurance is to be purchased from reputable, duly qualified insurance companies acceptable to Kawasaki, and all such policies shall designate Kawasaki, KHI, and KRC as named insureds. All such insurance must be primary and non-contributory and required to respond and pay prior to any other insurance or self-insurance available. Kawasaki shall be notified in writing at least thirty (30) days prior to cancellation of or any material change in any such policy.
17.Changes.
Kawasaki reserves the right to make changes in the Specifications of the Goods by written notice to Vendor. Any such changes shall become effective upon delivery to Vendor by Kawasaki of such written notice. Any difference in price or delivery date of the Goods will be equitably adjusted subject to the condition that Vendor submits a written claim for an equitable adjustment of the price and/or delivery date resulting from such change no later than ten (10) days from the date written notice of such change was delivered to Vendor. Vendor hereby waives any claim for an equitable adjustment of price or delivery date not submitted to Kawasaki within such 10-day period. No change or modification in the price or delivery date of the Goods shall be valid without the written authorization of an authorized representative of Kawasaki’s Purchasing Department. Notwithstanding anything to the contrary, Kawasaki reserves the right to modify the delivery schedule for deliveries for periods beyond the specified lead time for the delivery of the Goods, at no additional cost to Kawasaki.
18.Approval of Drawings and Calculations Submitted by Vendor.
Drawings, specifications, and calculations submitted by Vendor to Kawasaki shall be reviewed, and if satisfactory, approved by Kawasaki. Such review and approval of drawings shall not be deemed to constitute the approval of the design of the Goods manufactured pursuant to such drawings, specifications, and calculations. Such review and approval of drawings, specifications and calculations will be undertaken and given by Kawasaki only for the purpose of assisting Vendor with the production or manufacture of the Goods. In no event shall such review and approval of drawings, specifications and calculations relieve Vendor of any responsibility for compliance with the Specifications related to the Goods or the relieve Vendor of any of the terms of this or any other Order including any of the warranties provided hereunder.
19.Indemnification.
Notwithstanding any limitation of liability, waiver, disclaimer, limited warranty, limited remedy or other similar limitation, Vendor agrees to indemnify, defend, and hold harmless Kawasaki, KHI, and KRC, and each of their affiliates, and customers and each of their officers, directors, employees, agents, representatives, successors, and assigns (all hereinafter referred to in this clause as “Indemnified Parties”), to the extent of Vendor’s proportionate share of fault or responsibility, from and against any and all proved or alleged claims (including any claims based in part upon Kawasaki’s negligence or claims based in whole or in part upon strict liability, product liability, statutory liability or other claims sounding in tort, contract or admiralty), demands, suits or any proceedings brought by any person, corporation, limited liability company, partnership, joint venture, governmental authority or any other legal entity, other than the Indemnified Parties or Vendor, or any losses, damages (both direct, consequential, special or punitive), lost profits, liabilities, fines, penalties, expenses (including any expenses related to litigation), and fees (including attorney's fees) (“Third Party Claim(s)”) that in any way arise out of, relate to or result from any Order or the items, tangible or intangible, furnished or services performed under or in contemplation of such Order including, but not limited to: (a) injuries or death to persons or damage to property, including theft, (b) failure by Vendor to perform any of its obligations under this Order, including, but not limited to, any delay on the part of the Vendor or any breach of warranty, or defect, or nonconformance of the Goods as set forth herein, (c) any claim or action alleging product liability, product defect, design, packaging or labeling defect, failure to warn, or any similar claim or action relation to the design, use or safety of any Good, (d) the negligent or intentional acts or omissions of Vendor or any subcontractors, employees or agents for which Vendor may be liable or (e) any Recall (as defined in Section 20) involving any of the Goods. This provision shall survive any termination of Vendor’s relationship as a supplier or vendor to Kawasaki. If any of the Indemnified Parties intends to claim indemnification from Vendor under this Order, such Indemnified Party shall provide reasonable notice to Vendor of any Third Party Claim with respect to which such Indemnified Party intends to claim such indemnification. The Indemnified Party shall be entitled to control the defense of and otherwise represent its interests in such Third Party Claim, including the right to select and direct legal counsel and other consultants, and in good faith to propose, accept or reject offers of settlement. The indemnification obligation provided herein shall apply to amounts paid in settlement of any action with respect to a Third Party Claim unless the Indemnified Party fails to provide prompt notice of any proposed settlement offers and to consider in good faith any comments received from Vendor relating thereto. Nothing contained herein will be deemed to prevent Vendor from retaining its own legal counsel and other consultants and participating in its own defense to any Third Party Claims at its own cost and expense. The failure to provide notice hereunder will not relieve the Vendor from its indemnity obligations hereunder except to the extent that such failure materially diminishes the ability of the Vendor to satisfy its related obligations hereunder. Vendor shall cooperate with any Indemnified Party to the extent reasonably requested by the Indemnified Party in the contest and defense of a Third Party Claim, including providing reasonable access (upon reasonable notice) to the books, records, and employees of Vendor if relevant to the defense of a Third Party Claim.
20.Voluntary and Mandatory Recalls.
To the extent that (a) any regulatory authority issues a directive or order that any Goods be reworked or withdrawn in any country, (b) a court of competent jurisdiction orders the rework or withdrawal of Goods in any country, or (c) Kawasaki, KHI, or KRC determines in good faith that Goods should be reworked or withdrawn voluntarily in any country, and any of the same arise as a result of a defect relating to safety, failure, or lack of compliance with applicable law with regard to the Goods installed or incorporated into any products (a “Recall”), Vendor and Kawasaki, KHI or KRC shall rework or withdraw the Goods and associated products as set forth herein. As between the parties, Kawasaki, KHI, or KRC shall implement and coordinate all activities that they determine are reasonably necessary in connection with a rework of Goods and associated products, including making all contact with relevant regulatory authorities. Vendor shall have the right to reasonably participate, upon its request, in any statements relating to the rework to the extent feasible in the circumstances, and the parties shall keep each other informed with respect to the status thereof. At Kawasaki’s, KHI’s, or KRC’s request, Vendor shall provide reasonable assistance in conducting such Recall, or other corrective actions, including providing all pertinent records that Kawasaki, KHI, or KRC may reasonably request to assist in effecting the rework or corrective action. To the extent that rework is determined by Kawasaki, KHI, or KRC to have been caused, either in whole or in part, by any of the Goods provided by Vendor, Vendor shall indemnify, defend and hold harmless Kawasaki, KHI, and KRC from any and all direct costs, expenses, and fees incurred by any one or more of them and in any manner related to rework of such Goods and associated products (including down-time on assembly lines) and for the wages, benefits, overhead and administration expenses of any employee of Kawasaki, KHI, or KRC or any customer thereof involved with the rework. The provisions of this Section 20 shall be in addition to the other rights and remedies afforded Kawasaki, KHI or KRC in these Standard Terms and Conditions and such provisions survive any termination of Vendor’s relationship as a supplier or vendor to Kawasaki.
21.Default.
In the event of any breach of any of the terms or conditions of any Order by Vendor or in the event of any proceedings by or against Vendor in bankruptcy, insolvency, appointment of any receiver or trustee, or any general assignment for the benefit of creditors, Kawasaki may, in addition to any other right or remedy available to Kawasaki by law or in equity, by written notice, terminate all or any part of this Order, procure the Goods provided herein from third parties on such terms and conditions as are commercially reasonable in the discretion of Kawasaki, and Vendor shall be liable to pay any excess cost or other damages to Kawasaki as a result thereof. Except for failure to meet the specified delivery date(s) or schedule for the Goods or any portion thereof (with respect to which time shall be of the essence), this Order shall not be terminated for default if Vendor satisfactorily corrects such default within five (5) days from the date of receipt of written notice specifying the nature of such default.
22.Subcontracting; Assignment.
Vendor shall not without the prior written consent of Kawasaki make any contract with any other person for furnishing any of the Goods or portion thereof covered by any Order; provided, however, such limitation shall not apply to the purchase of standard commercial supplies or raw materials. In addition, Vendor shall not assign any of its rights or obligations under any Order without the express written consent of Kawasaki which may be withheld in its sole discretion. Any such purported assignment shall be null and void.
23.Termination for Convenience.
Kawasaki may at any time terminate any Order for its convenience for any reason whatsoever upon notice to Vendor. If such termination occurs after partial deliveries have been made, or other partial performance hereunder has occurred, and Kawasaki has accepted the same, Vendor shall be paid therefor at the applicable pricing contained on the Order. Kawasaki shall have the right to take possession of any Goods, materials or articles in Vendor’s possession, whether or not such items have been fabricated and/or manufactured for the intended purpose of this Order at the time of termination, and Kawasaki shall reimburse Vendor for the cost thereof, subject to Kawasaki’s right of set-off. In no event (including any determination that a termination of any Order by Kawasaki is wrongful or unjustified) shall Kawasaki be liable to vendor for any lost or anticipated profits or any other type of indirect, punitive, multiple, exemplary, incidental, or any other consequential damages of any kind as a result of the termination of the purchase order hereunder. This term shall apply to any termination of any Order and shall survive termination.
24.Government Contract Requirements.
Vendor acknowledges that provisions regarding equal opportunity and affirmative action without regard to race, color, religion, sex, national origin, presence of a disability or status as a special disabled veteran or Vietnam era veteran, and all applicable laws, rules, regulations and executive orders specifically related thereto, including applicable provisions and clauses from the Federal Acquisition Regulations and all supplements thereto, are incorporated in this agreement as they apply to work performed under specific U.S. Government contracts.
25.Set-Off.
Kawasaki shall have the right at all times to set off or recoup any amounts owing from Vendor to Kawasaki, any component of Kawasaki or any of its affiliates, against any amounts payable at any time by Kawasaki.
26.Taxes.
Except as may be otherwise provided in this Order, the price of the Goods includes all applicable federal, state, and local taxes, except applicable sales or use taxes. Any such sales or use taxes shall be separately stated on all invoices delivered by Vendor. However, Vendor shall not collect or include sales or use taxes with respect to any Goods for which Kawasaki provides Vendor with an exemption certificate.
27.Compliance with Laws and Regulations.
Vendor shall at its own expense comply with all applicable federal, state, and local laws, regulations, ordinances, codes, orders or rules. Vendor represents and warrants that the materials to be furnished and the services rendered under this Order shall be manufactured, sold, and used in compliance with all relevant federal, state, and local laws and regulations. Vendor shall be responsible for all damages and penalties resulting from the failure to so comply and shall defend, indemnify and save harmless Kawasaki from and against all damages, penalties, and liability which may arise out of Vendor’s failure to comply with all such codes, laws and regulations.
28.Governing Law; Disputes.
This Order and any matter relating thereto shall be construed and interpreted in accordance with the laws of the State of Nebraska (including the provisions of the Nebraska Uniform Commercial Code), without regard to its conflict of laws provisions. WITH REGARD TO ANY DISPUTES ARISING OUT OF OR RELATING TO ANY ORDER OR THE GOODS, VENDOR HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA. VENDOR ALSO AGREES NOT TO BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ORDER OR THE GOODS IN ANY OTHER COURT OR JURISDICTION. VENDOR WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY, OR OTHER SECURITY THAT MIGHT BE REQUIRED OF KAWASAKI.
29.Notices.
Any notices, payments, demands and other communications to be given or delivered under or by reason of these terms and conditions shall be in writing and shall be deemed to have been given (a) when delivered if personally delivered by hand, (b) when received if sent by a nationally recognized overnight courier service (receipt requested), (c) three (3) days after being mailed, if sent by first class mail, return receipt requested, or (d) when receipt is acknowledged by an affirmative act of the party receiving notice, if sent by facsimile, telecopy or other electronic transmission device (provided that such acknowledgment does not include an acknowledgment generated automatically by a facsimile or telecopy machine or other electronic transmission device). Any such writing sent by overnight carrier or registered or certified mail shall be sent to the relevant party at the address noted in the Order. Either party may change its address; provided, however, notice of any change in a party’s address is delivered in the manner set forth herein prior to such new address being effective.
30.Waiver.
No failure or delay on the part of the Kawasaki in exercising any right, power or remedy under the agreement shall operate as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy under the terms hereof. Vendor, for itself and its suppliers and subcontractors, hereby waives all claims for incidental, indirect, exemplary, multiple, punitive, and all other consequential damages. This waiver shall apply to any termination of any Order and shall survive termination of an Order.
31.Other Provisions.
Vendor shall comply with all applicable policies and procedures of Kawasaki provided to Vendor by Kawasaki, including, but not limited to, the KMM Rail Car Supplier Manual, and shall be bound by the specifications and terms of the applicable contract(s) between Kawasaki and its customer(s), which is/are incorporated herein by this reference, insofar as they relate to the Goods. Vendor assumes toward Kawasaki all obligations and responsibilities which Kawasaki assumes toward its customer(s) under such contract(s), and Kawasaki shall have the benefit of all rights, remedies and redress against the Vendor that Kawasaki’s customer(s) has/have against Kawasaki under such contract(s). Without limiting the general applicability of the foregoing, Vendor shall be bound by any Special Terms and Conditions annexed hereto.
32.Entire Agreement.
These Standard Terms and Conditions, any applicable Special Terms and Conditions, and those terms, conditions and other provisions which appear on any Order placed with Vendor shall constitute the entire agreement between Kawasaki and Vendor with respect to the subject matter of such Order, and supersedes all prior oral and written communications and agreements relating thereto, other than those contained in the KMM Rail Car Supplier Manual or contained in any other written agreement that has been executed by Vendor and Kawasaki (including agreements entered into electronically). No amendment, modification, termination or waiver of any provision shall be effective unless the same shall be in writing and signed by a corporate officer of Kawasaki, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Vendor acknowledges and agrees that KHI and KRC are intended third-party beneficiaries to the obligations owing by Vendor under the terms hereof.
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