Terms and Conditions
- Parties; Applicability. As used herein, the following terms have the following meanings: (a) “Buyer” shall mean the legal entity which is issuing a written Purchase Order (“Purchase Order”) for the identified goods or materials on the face of the Purchase Order (“Goods”); (b) “Seller” shall mean the vendor named on the face of the Purchase Order including its officers, directors, employees and authorized agents. For clarity, the Buyer may be any designated affiliate of Delek US Energy, Inc., but unless designated on the Purchase Order, the Buyer shall not include any other entity. Buyer and Seller shall be referred to hereafter individually as a “Party”, and collectively as the “Parties.”
These Purchase Order Terms and Conditions (“PO T&Cs”), and the written Purchase Order for Goods that accompanies, attaches or incorporates them, constitute the sole and exclusive terms on which Buyer agrees to be bound. These PO T&Cs prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with a Purchase Order issued by Buyer. Each and every Purchase Order issued by Buyer incorporates these PO T&Cs in their entirety. All references to invitations and proposals are for information only and are not made a part of the final agreement, unless expressly so stated on the face of the Purchase Order. No modification or waiver of the terms of a Purchase Order or these PO T&Cs are binding unless in writing, signed by two (2) duly authorized officers of Buyer and confirmed by an authorized representative of the Seller. Unless expressly superseded by specific reference in another agreement executed by Buyer and Seller, the provisions contained in these PO T&Cs shall govern and control over the respective obligations of Buyer and Seller, all transactions and related matters contemplated in the Purchase Order, and any matters arising therefrom or pertaining thereto. Except as expressly set forth herein, if any provision(s) contained in the Purchase Order, related correspondence, or any other document is in conflict with, or inconsistent with any provision(s) contained in these PO T&Cs, the provision(s) contained in these PO T&Cs shall govern and control. These PO T&Cs apply to any repaired or replacement Goods provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations pursuant to the Purchase Order or these PO T&Cs.
- Acknowledgment; Acceptance. Acknowledgment or shipment of any part of a Purchase Order constitutes acceptance by Seller of all of these PO T&Cs without reservation. Goods will not be considered as received and accepted by Buyer until all required laboratory tests and all necessary and reasonable inspections have been approved. Seller shall pay transportation costs and the cost of inspection and testing for rejected Goods. Buyer reserves the right to cancel any issued request under a Purchase Order until the Seller accepts the Purchase Order.
- Notices. All notices, requests, and other correspondence provided for hereunder (other than invoices) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. Communications to Buyer shall not be effective hereunder unless directed to Buyer’s duly authorized agent. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).
- Invoicing. Seller must render separate invoices for each shipment to Buyer, complying with the Purchase Order invoicing instructions shown on the face of the Purchase Order. Indicate under date of each invoice whether a shipment is partial or final. The prices included on the face of a Purchase Order are firm and fixed unless otherwise agreed in writing by Buyer, and Buyer shall receive the benefit of any general discounts in Seller’s prices prior to delivery. Discounts are taken on the gross amount of invoice unless terms specifically provide otherwise. Discounts will be calculated from date of receipt of material or receipt of invoice, whichever is later. If the price is not stated in the Purchase Order, the price shall be the price last quoted or paid by Buyer, or the prevailing market price, if lower. Unless otherwise set forth on a Purchase Order, all invoices must be submitted to Buyer within thirty (30) days following each shipment and contain: (i) the Purchase Order line item number, (ii) quantity shipped, (iii) quantity backordered (if applicable), (iv) description of Goods, (v) tag number (if applicable), (vi) Seller’s part number, (vii) net unit price, (viii) name of the person placing the Purchase Order, and (ix) the Purchase Order number. Invoices not received within the period or not containing the above-referenced requirements set forth in this Section may not be paid. If Buyer disputes in good faith any portion of an invoice, Buyer shall pay the undisputed dollar amount of such invoice when due and may, at its option, withhold the disputed portion pending resolution of the dispute. If Buyer withholds any payment pursuant to this Section, Buyer shall notify Seller in writing of the basis for such withholding within thirty (30) days following Buyer’s receipt of the invoice (the “Dispute Period”). Upon resolution of the dispute, Buyer shall pay to Seller such portion, if any, of the disputed amount determined to be owing to Seller within ten (10) business days of final resolution.
- Changes. No substitutions of Goods, or extra charges of any kind, or change in or cancellations of the Purchase Order or these PO T&Cs will be recognized unless authorized in writing by an authorized employee of Buyer.
- Packaging; Shipping. Seller agrees to pay for packing, loading, or draying, unless otherwise agreed in writing. Invoices and bills of lading showing full routing, car number and other customary data, should be dated and mailed at the time of shipment and a separate invoice must be made for each destination, showing point of shipment and how shipped. Invoices bearing transportation charges must be supported with attached original receipt transportation bills and in the case of consolidated carload shipments must show weight and rate. Seller shall package the Goods in accordance with good industry practice considering the means of transportation, the amount of handling, and the climatic conditions to be expected during the transit. Seller shall also ensure that the Goods are protected against deterioration during transit to the place of delivery. All Goods packaged will be labeled with the full address of the place of delivery and the Purchase Order number.
- Assignment. Seller shall not assign any Purchase Order, nor any monies due or to become due thereunder, without Buyer’s prior written consent, which consent can be granted or withheld at Buyer’s sole discretion. Any attempted assignment without such consent shall be void.
- Delivery. Seller shall prepare the Goods sold pursuant to any Purchase Order for delivery to the destination specified in the Purchase Order and will cause delivery within the time period specified on the face of the Purchase Order. If Seller does not deliver the Goods within the stated time period, Buyer may (a) require Seller to deliver the Goods by the most expeditious means available and Seller shall pay for that portion of the transportation charge which exceeds the cost of the method which would have otherwise been used or (b) cancel all or any part of the undelivered Goods. No fees for shipping costs will be paid by Buyer unless expressly stated in the Purchase Order and Buyer may refuse acceptance of any Goods shipped with collect payment by Buyer. The goods and materials shall be subject to expediting by Buyer or its representatives. As required by Buyer, Seller shall supply schedules and progress reports for Buyer’s use in expediting.
- Title; Risk of Loss. Unless otherwise specified in a Purchase Order, title and risk of loss to the Goods shall pass to the Buyer upon delivery to the destination specified in the Purchase Order. Any Goods damaged or lost prior to the time of delivery to Buyer shall be immediately replaced, and the replacement Goods shall fully comply with the requirements of the subject Purchase Order, and all costs associated with providing the replacement Goods shall be to Seller’s account. Seller shall be solely responsible for insuring the Goods which are the subject of a Purchase Order through the time of delivery to Buyer, and the cost of such insurance shall be included in the Purchase Order price. Seller warrants that upon delivery, Buyer will receive good and marketable title to the Goods, free and clear of any lien, security interest or other encumbrance of claim or to any option or other right in favor of a third party.
- Cancellation. At any time and for any reason, Buyer may terminate any or all separable part of any Purchase Order issued hereunder by giving written notice to Seller. On the date that notice of such termination is received by Seller, Seller shall: (a) discontinue all work relating to the Goods so terminated except for work specifically required by complying with the instructions in the cancellation notice, (b) place no additional orders, (c) preserve and protect Goods on hand purchased for or committed to the applicable Purchase Order, work for Goods and services in progress, and completed Goods and services both in Seller’s and in its subcontractors plants pending Buyer’s written instructions, and (d) dispose of same in accordance with Buyer’s written instructions. Seller shall not be entitled to any prospective profits or damages because of the cancellation.
- Termination for Default. Any of the following events constitutes a material default by Seller under the Purchase Order issued by Buyer: (a) any bankruptcy proceeding by or against Seller or the appointment of a trustee for the benefit of creditors; (b) a refusal or failure of Seller to deliver the Goods, or to perform the services, in accordance with any of the agreed scheduled delivery date(s), provided that (i) Buyer has notified Seller of its failure (“Default Notice”) and Seller has not cured such failure within ten (10) days of such notice, or (ii) if, based upon the current progress of the Goods and services and information provided by Seller, Seller is projected to deliver any portion of the Goods or perform any portion of the services thirty (30) days or more beyond the applicable scheduled delivery date(s) for such Goods or services; (c) assignment of all or any part of any applicable Purchase Order without Buyer’s consent; or (d) failure to perform any other material provision of these PO T&Cs or any Purchase Order. In the event Seller does not cure any such default within the period specified in this Section, or such longer period as Buyer may authorize in writing, then Buyer may give written notice to Seller to terminate the subject Purchase Order or any part thereof. In the event of termination for default under this Section, Buyer shall not be liable to Seller for payment of any amount beyond the value of any Goods and services shipped or received and accepted by Buyer, less damages suffered by Buyer. Upon request by Buyer, Seller will deliver or assign to Buyer any Goods and services in progress at the time of termination.
- Warranty. Seller represents and warrants that: (a) the Goods described in Buyer’s Purchase Order are fit for use for the specified purpose for which they are purchased by Buyer and are free from defect in design, workmanship, and material and are in strict accordance with the specifications set out in the Purchase Order, unless otherwise agreed in writing and Seller agrees to replace without cost any Goods or workmanship which shall be found defective within one (1) year after start-up or eighteen (18) months from shipment, whichever occurs first; (b) said Goods and the sale or use of them does not infringe, directly or indirectly, any valid patent, copyright, trademark, trade secret or other intellectual property right of any third party, and that Seller will, at Seller’s cost and expense, defend, indemnify and hold Buyer, and its affiliated companies, and sub- contractors harmless from and against any claims, demands, actions and litigation based on alleged or actual infringement thereof; (c) all amounts charged by the Seller and payable pursuant hereto are lawfully chargeable under and shall not violate, directly or indirectly, the provisions of any present or future laws, decrees, regulations, rules or orders of any governmental authority which in any manner fix, limit, regulate, or otherwise affect prices at which said Goods may be sold; (d) all United States statutes, applicable to furnishing labor and materials or sales merchandise for use on government contracts, have been fully complied with; and (e) where Seller is furnishing Goods in accordance with designated plans and specifications, that all Goods furnished meet and perform in accordance with such plans and specifications. These warranties are in addition to, and shall not be construed as restricting or limiting any warranties of the Seller, express or implied, or which are provided by law or exist by operation of law. These warranties shall run to the benefit of Buyer and its affiliated companies and subsidiaries.
- Liability & Indemnity. To the maximum extent permitted by applicable law, Seller shall defend, indemnify and hold harmless Buyer, and its affiliated companies and subsidiaries from and against any and all loss, damage, claim, suit, liability, strict liability, product liability, judgment and expense (including attorney’s fees and other costs of litigation) and any fines, penalties and assessments, arising out of injury, disease or death of, or damage to or loss of property of Seller, Seller’s employees, its agents or subcontractors resulting from or in connection with the execution of the Purchase Order. Seller assumes all risks of damage or injury to Seller’s own property or person, from whatever cause. IT IS THE EXPRESS INTENT OF THE PARTIES HEREIN THAT SELLER SAVE HARMLESS AND INDEMNIFY BUYER, AND ITS AFFILIATED COMPANIES AND SUBSIDIARIES FROM BUYER’S AND ITS AFFILIATED COMPANIES’ CONCURRENT, CONTRIBUTORY OR SOLE NEGLIGENCE AS SPECIFIED IN THIS PARAGRAPH.
- Employment Taxes. Seller agrees to accept exclusive liability for the payment of any payroll taxes or contributions for unemployment insurance or old age pension or annuities which are measured by the wages, salaries or other remuneration paid to the Seller’s employee to reimburse Buyer for any of said taxes or contributions which, by law Buyer may be required to pay, and to comply with all laws, orders and regulations respecting the assumption by Seller of liabilities for said taxes or contributions.
- Insurance. Seller shall, at its sole cost, obtain and maintain in force for the duration of the Purchase Order (including the warranty period) insurance of the following types, with limits not less than those set forth below: (a) Workers’ Compensation Insurance, including occupational illness or disease coverage, in accordance with the laws of the nation, state, territory or province having jurisdiction over Seller’s employees, and Employer’s Liability Insurance with a minimum limit of $1,000,000 per accident and, for bodily injury by disease, $1,000,000 per employee, Seller shall not utilize occupational accident or health insurance policies, or the equivalent, in lieu of mandatory Workers’ Compensation Insurance, or otherwise attempt to opt out of the statutory Workers’ Compensation system; (b) Commercial General Liability Insurance (“Occurrence Form”) with a minimum combined single limit of liability of $1,000,000 each occurrence for bodily injury and property damage; with a minimum limit of liability of $1,000,000 each person for personal and advertising injury liability; and a minimum limit of liability of $1,000,000 each occurrence for products/completed operations liability; Such policy shall have a general aggregate limit of not less than $2,000,000; The products/completed operations liability coverage shall be maintained in full force and effect for not less than three (3) years following completion of any activities by Seller or its employees on the property of Buyer; and the policy shall be endorsed to name Buyer, including their respective affiliates, directors and employees, as additional insured, and such endorsement shall be made upon ISO Endorsement CG 2010 11 85, “Additional Insured – Owners, Lessees or Contractors (Form B).”; (c) Automobile Liability Insurance covering use of all owned, non-owned and hired vehicles, with a minimum Combined Single limit of liability for bodily injury and property damage of $1,000,000 per occurrence, and the policy shall be endorsed to name Buyer, including its affiliates, directors and employees, as additional insured; and (d) Excess (umbrella) liability coverage following form for (a), (b) and (c) above will be provided with a combined single limit for bodily injury and property damage of not less than $4,000,000. Seller hereby releases Buyer, including its affiliates, directors and employees, and shall cause Seller’s Insurers to waive their rights of subrogation against such released parties, for losses or claims for bodily injury, property damage or other insured claims arising out of Seller’s performance of the Purchase Order. Certificates of Insurance satisfactory in form to Buyer (ACCORD form or equivalent) shall be supplied to Buyer evidencing that the above insurance is in force, that not less than thirty (30) days written notice will be given Buyer prior to any cancellation or restrictive modification of the policies, and that the waivers of subrogation are in force. The fact that Seller has obtained the insurance required in this Section shall in no manner lessen nor affect Seller’s other obligations or liabilities set forth in this Purchase Order.
- Deliveries in Error. On all Goods delivered in error, or in excess of quantity shown on the Purchase Order, Buyer reserves the right to return such Goods at Seller’s expense, Seller agreeing to hold Buyer harmless for any damage, destruction or other loss during such return.
- Compliance. Seller agrees all work performed and/or Goods furnished under the Purchase Order shall conform to all applicable federal, state and local laws. Seller agrees to comply with all laws and orders and regulations of public authorities relative to rates of wages, hours of labor and other similar or dissimilar matters which may be binding upon Seller in connection with any work or contract for or in connection with which the work, labor, materials, supplies, tools, equipment or other thing to be performed or furnished by Seller under the Purchase Order are or are intended to be used. Seller further certifies that the Goods furnished under the Purchase Order were produced in compliance with all applicable requirements of the Fair Labor Standards Act. Seller warrants that the Goods furnished under the Purchase Order when used in their customary or recommended manner shall comply with the applicable requirements of the current Federal Occupational Safety & Health laws and regulations in effect at the time of shipment. Any vendor, personnel, and/or agents of vendor required at the jobsite will abide by all applicable safety and security regulations and procedures.
- Sales & Use Taxes; Permits & License Fees. Seller will bear and pay all applicable taxes of the United States or any state or any foreign government including political subdivisions of any of them, which are based on or measured by net income, gross income or gross receipts including any withholding taxes levied against Seller for the privilege of doing business in a jurisdiction. If Seller is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from Company on behalf of any taxing jurisdiction, Seller will provide to Company invoices which separately state and clearly indicate the amount of tax and Company will remit any such tax to Seller. Seller will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefor including registration, collection of taxes and the filing of returns where applicable. Notwithstanding whether Seller must collect sales and use tax from Company, Seller will state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which Products were provided. If applicable, in lieu of payment for any sales and use tax, Seller will accept a properly executed exemption or direct pay certificate from Company. The determination of whether an exemption or direct pay certificate will be submitted to Seller in lieu of payment for any sales and use tax will be made by Company on a location by location basis. With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Seller, or the price or compensation under this Contract, or upon the Product provided hereunder, will be the responsibility and liability of Seller. In addition, Seller shall obtain and pay, and the total Purchase Order amount includes, the cost of all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of the Purchase Order.
- Withholding. Buyer shall have the right to withhold any money ever payable by it pursuant to any Purchase Order and apply the same to payment of any obligations of Seller to Buyer or to any other parties arising in any way out of a Purchase Order or its performance.
- Bills & Liens. Seller shall pay promptly all indebtedness for labor, materials and equipment used in performance of the work. Seller shall not be entitled to receive final payment from Buyer until Seller furnishes evidence satisfactory to Buyer of full payment of such indebtedness. Seller shall not permit any lien or charge to attach to the work or the premises of Buyer; but if any does so attach, Seller shall promptly procure its release, and indemnify Buyer against all damage and expense incident thereto. As a condition to payment, Buyer may require Seller to furnish lien waivers from Seller, its suppliers or subcontractors.
- Confidentiality. Any information and materials furnished to Seller by Buyer pursuant to a Purchase Order and any contract made hereto shall be kept confidential. Such information and materials shall be used only for work being done for Buyer, remain the property of Buyer and shall be returned to Buyer at the conclusion of the Purchase Order.
- Inspection. Inspection review(s) by Buyer, or any of its designees does not in any way relieve Seller, or any of Seller’s subcontractors from their responsibility to fulfill its obligations under a Purchase Order.
- Audit Rights. Buyer shall have up to two (2) years following delivery pursuant to a Purchase Order (the “Audit Period”) to audit Seller’s records (other than payroll records), including inspection and copying, at Seller’s normal place of business. Buyer shall have the right to examine, either directly or through its authorized representatives or agents, during normal business hours, all books, records, accounts, correspondence, instructions, specifications, plans, drawings, receipts, manuals and memoranda pertinent to any Purchase Order. As such, Seller shall retain documentation supporting all invoices under all Purchase Orders for the Audit Period. Buyer’s right to audit shall not apply to Seller’s trade secrets or other proprietary information properly designated or asserted as such.
Buyer’s payment of Seller’s invoices before or during the Audit Period shall not be deemed to waive Buyer’s right to dispute the validity of the invoices. All invoices delivered to Buyer hereunder will be subject to Buyer’s timely audit to ascertain correctness of such billings with respect to the terms of the Purchase Order. Payment related disputes not raised by Buyer within the Audit Period shall be deemed waived.
Seller shall refund all overpayments confirmed by the audit plus interest at the rate of the lesser of one and one-half percent (1.5%) or the maximum rate allowed by law. In addition, in the event that an audit reveals that Buyer overpaid Seller by more than ten percent (10%) of the aggregate amount that rightfully should have been paid, Seller shall (in addition to refunding the overpayment with interest) reimburse Buyer for all reasonable third party costs of the audit up to an amount equal to the overpayment plus interest at the rate of the lesser of one and one-half percent (1.5%) or the maximum rate allowed by law.
- Conflict of Interest. Except as otherwise expressly, provided herein, no director, employee or agent of either Party, its subcontractors or vendors, will give or receive from any director, employee or agent of the other Party or any affiliate, any commission, fee, rebate, gift or entertainment that (a) is a cash gift, (b) is inconsistent with customary business practices, (c) is excessive in terms of frequency or value, (d) can be construed as a bribe or payoff, or (e) violates any laws or regulations.
Potential violations by Buyer and/or its directors, employees, or agents should be reported and can be done so anonymously by calling Buyer’s Compliance Hotline at 1-800-867-9267. Any representative(s) authorized by either Party may audit the applicable records of the last three (3) years of the other Party for the sole purpose of determining whether there has been compliance with this Section.
- Approval Documents. Approval of documents by Buyer, or any of their designees does not relieve Seller of their responsibility for providing Goods or equipment that is fully functional and complies fully with the specifications issued with a Purchase Order.
- Litigation. The prevailing party in any lawsuit based upon a Purchase Order shall be entitled to recover (in addition to any other available remedies) reasonable attorneys’ fees, collection costs and court costs. These PO T&Cs and all Purchase Orders shall be governed and construed in accordance with the laws of the State of Texas, and any and all disputes hereunder shall be resolved in accordance with the laws of the State of Texas, except for any such law that would direct the application of the law of a different jurisdiction. The venue for any controversy or claim between the parties arising out of or related to these PO T&Cs or any Purchase Order shall be the appropriate state and federal courts located in or serving Harris County, Texas. Accordingly, each Party hereby consents and submits to the jurisdiction of such courts.
- Hazardous Material. Any materials identified as hazardous to employees during use or application must be accompanied by a suitable Material Safety Data Sheet (MSDS) notice. Seller shall furnish, without limitation, all appropriate and required shipping, handling and use certifications, instructions, labeling, lists and representations for shipping, safety, handling, exposure and disposal.
- Buyer Export/Import Controls. (a) When requested by Buyer’s authorized representative or agent, Seller shall, promptly and without additional cost, furnish Buyer with any documentation, including import certificates or end-user statements from Seller or Seller’s government, which is reasonably necessary to support Buyer’s application for U.S. import or export authorizations. (b) Seller agrees that no Goods, technology, software or services supplied under any Purchase Order are sourced from or originate with: (i) A country or government subject to U.S. economic sanctions administered by the U.S. Department of the Treasury or U.S. Department of State (hereinafter “Restricted Country”); (ii) A Specially Designated National identified on the U.S. Department of the Treasury’s Specially Designated Nationals List, or any other U.S. government list restricting the acquisition of items from an entity or person located outside or inside the United States (hereinafter “Restricted National”); (iii) An entity or person that is owned or controlled by any Restricted Country or Restricted National; or (iv) A restricted country or debarred party under the International Traffic in Arms Regulations or U.S. Department of Defense Federal Acquisition Regulations. (c) Should Seller’s Goods or services originate from a foreign location and are subject to the export control laws and regulations of the country in which the Goods or services originate, Seller agrees to abide by all applicable export control laws and regulations of that originating country. Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller. Seller shall be responsible for complying with any laws or regulations governing the importation of the Goods into the United States of America. (d) Seller shall ensure that it prepares and provides a compliant invoice for each shipment to Buyer for Buyer’s use in effecting an import entry declaration with U.S. Customs & Border Protection (CBP). Seller shall further ensure that the invoice contents accurately and completely reflect the transaction subject to the Purchase Order.
- Force Majeure. Time is of the utmost importance in the performance of Purchase Orders issued pursuant to these PO T&Cs. Neither Buyer nor Seller shall be liable to the other for failure to perform in accordance with the provisions of a Purchase Order, other than to make payments due hereunder, if such failure is due to catastrophic acts of God; provided that such act or event: (a) renders impossible the affected party’s performance of its obligations under such Purchase Order, (b) is beyond the control of the affected Party and not due to its fault or negligence, and (c) could NOT have been prevented or avoided by the affected Party through the exercise of due diligence, including the expenditure of any reasonable sum taking into account the total Purchase Order amount. If either Party is entitled to relief under this Section for a force majeure event, the affected Party must notify the other Party in writing within five (5) days of the occurrence thereof or forfeit its exclusion from liability under this Section. The notice must contain reasons for the delay and, if provided by Seller, an estimate of the delay in shipment of the Goods or performance of the services.
- Severability. Any part, provision, representation or warranty of these PO T&Cs which is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
- Several Liability. Any liabilities arising under these PO T&Cs or any Purchase Order issued by Delek US Energy, Inc., or any of its affiliates which are designated as Buyer on the face of a Purchase Order, including any representations and obligations arising therefrom or related thereto, are several (and not joint) in all respects.
June 30, 2020