Purchases by Trinity Trailer Mfg., Inc. and its subsidiaries and affiliates (“Trinity Trailer”), are governed by these terms and conditions, unless the parties have entered into a mutually executed written master agreement stating applicable terms and conditions. Seller agrees to sell, and Trinity Trailer agrees to buy, the goods, articles, materials, or services (“Goods”) described on a Trinity Trailer Purchase Order (“PO”) for the price, at the time, and on the terms of payment shown on the PO. This PO and the provisions of any drawings, prints, plans, descriptions, specifications, samples, data, and other documents expressly referred to therein and adopted by reference (“Documents”) constitute the entire agreement and supersede all proposals, negotiations, and counterproposals.
2. CONTROLLING TERMS
Trinity Trailer objects to the inclusion of any different or additional terms by Seller in Seller’s acceptance of this PO. If Seller includes or attaches any different or additional terms in Seller’s purported acceptance, commences performance, or tenders the Goods, a contract of sale will result upon the terms and conditions as stated herein, without inclusion of any different or additional terms and conditions.
All Goods furnished must strictly conform to the Documents and must be of the quality specified. No deviation or substitution is permitted without the prior written consent of Trinity Trailer. If no quality is specified, the Goods must be at least equal to the standards of the industry. Trinity Trailer may at all times during the performance of this PO conduct such tests and inspections as it deems necessary to assure Seller’s compliance with this PO. Trinity Trailer will be supplied, as needed, data, drawings, specifications, test results, quality documentation, schedules, and other documents and information.
4. PRICE AND DISCOUNTS
The price set forth on the PO is not subject to escalation unless an escalation formula is expressly provided for on the face of the PO. Payment terms are net 30 days unless otherwise agreed. If a prompt payment discount is provided for on the PO, the discount period begins when the Goods or invoices are received, whichever is later, provided the period will be extended for delays caused by errors in invoicing or good faith disputes over the accuracy of the invoice. Trinity Trailer may, before making any payment due under this PO, require Seller to deliver lien waivers from itself and each of its subcontractors and materialmen for Goods previously delivered. Any request for payment issued more than six months after the date of delivery of the goods or services will not be honored.
Changes may be made by Trinity Trailer at any time in the character or quantity of Goods to be furnished hereunder by written change order signed by the same authority executing this PO for Trinity Trailer. The price specified on the PO shall be adjusted pro rata if the change is in quantity, or by mutual agreement if the character or Goods or other terms are changed so as to increase or decrease the cost to Seller. Upon Trinity Trailer’s request, Seller shall provide satisfactory evidence from which adjustments based on cost can be determined.
Time is of the essence to this PO. At the outset of any delay from any cause, including Force Majeure, Seller shall immediately notify Trinity Trailer in writing of the delay or anticipated delay and shall undertake to shorten the delay by all reasonable means. If such delay is caused by Force Majeure, the costs of shortening the delays shall be paid by Trinity Trailer to the extent such costs are attributed to action authorized by Trinity Trailer. If the delay is from any other cause, Seller shall be solely responsible for the costs of overcoming delays.
7. FORCE MAJEURE
Neither party shall be liable for any delay or failure to deliver or accept any or all of the Goods where such delay or failure is caused by fire, flood, other act of God, act of war, labor disturbance, or other event beyond such party’s control (“Force Majeure”). Where only a portion of Seller’s capacity to perform is so impaired, Seller shall make a fair allocation of its remaining production among the various customers then under contract for similar Goods during the period. If this PO is for Goods to be used in the regular production of Trinity Trailer’s facility, Trinity Trailer may at its option delete the undelivered goods from this PO or appropriately extend the time for performance of this PO.
Seller shall indemnify, defend, and hold harmless Trinity Trailer, and any contractor, agent, or employee of Trinity Trailer, from and against all claims, demands losses, damages, actions, or liability of any kind, including attorneys’ fees, (collectively a “Loss”), where such Loss results from, pertains to, or arises out of, Seller’s, or those for whom Seller is responsible, performance of the Goods or any on-site activities, including, without limitation, any negligent acts, omissions to act, or willful misconduct, whether active or passive, on the part of Seller, or those whom Seller is responsible.
Seller shall carry at Seller’s own expense: (a) Workers’ Compensation and Employers’ Liability Insurance as required by statute, (b) Commercial General Liability Insurance, with limits for bodily injury and property damage of at least $2,000,000 per occurrence, which policy must include premises and operation coverage, blanket contractual coverage, Owner’s and Contractor’s protective coverage, and completed operations coverage; and (c) Comprehensive Automobile Liability with limits for bodily injury and property damage of at least $2,000,000 per occurrence, which policy must include owned, nonowned, and hired autos. At Trinity Trailer’s request, Seller shall also carry explosion, collapse, and underground coverage under its Commercial General Liability policy and Excess Liability in amounts specified by Trinity Trailer. All such insurance must be primary and noncontributory and must provide a waiver of subrogation in favor of Trinity Trailer. Seller shall provide Trinity Trailer with certificates evidencing all such coverages from insurance companies acceptable to Trinity Trailer. Such certificates must (a) except for the Workers’ Compensation and Employers’ Liability insurance, name Trinity Trailer Mfg., Inc., its subsidiaries, affiliates, directors, officers, and employees as additional insureds with respect to liability, or any claims of liability, arising out of the work performed by Seller per standard form endorsements CG 20 10 and CG 20 37, it being understood that the parties intend this provision to be an express waiver of immunity under any applicable Workers’ Compensation laws; (b) provide on their faces that the policies they represent will not be terminated, amended, or allowed to expire without 30 days’ prior written notice to Trinity Trailer; and (c) provide on their faces that the policies they represent contain a severability of interests clause, generally providing that the insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company’s liability.
10. SITE WORK
If Seller is to perform any work, including supervision of installation, at the site of construction or at the office or on property of Trinity Trailer, Seller warrants and represents that it has inspected the work site and is familiar with all working conditions that exist there, including subsurface conditions, and that it has made due allowance for such conditions in its price calculation and estimate of time for completion. Unless otherwise instructed by Trinity Trailer, Seller will provide for receipt, unloading, storage, and protection of all materials for the work whether such materials are purchased by Seller or Trinity Trailer. Seller shall at all times keep the work site reasonably neat and clean and upon completion shall remove and dispose of all rubbish, trash, and refuse. Seller shall be responsible for the proper use and storage of all Hazardous Substances, as defined by 40 C.F.R. 302.3, and all Hazardous Chemicals, as defined by 29 C.F.R. 1910.1200. Seller shall not generate any Hazardous Wastes, as defined by 40 C.F.R. 261.3, on site, without prior written authorization from Trinity Trailer. If Seller generates such Hazardous Waste, Seller must notify Trinity Trailer of the type and quantity and arrange with Trinity Trailer for proper storage and disposal, at Seller’s sole expense. Seller shall at all times coordinate its work and cooperate with the forces of other contractors on the work site and Trinity Trailer’s own forces. Seller shall at all times conduct itself in a safe and prudent manner in compliance with all applicable federal, state, and local safety laws, rules, and regulations, and all safety rules of Trinity Trailer, including Trinity Trailer’s drug and alcohol policy.
11. INDEPENDENT CONTRACTOR
Seller’s relationship to Trinity Trailer under this PO is that of an independent contractor. Seller is not, and shall not hold itself out as, an agent or employee of Trinity Trailer for any purpose.
Unless otherwise expressly provided, Seller shall make delivery F.O.B. Trinity Trailer’s premises as designated. Seller will indicate plainly the PO number on all bills of lading, invoices, and freight bills. Each package or shipment must contain a memorandum showing Seller’s name, contents of package, and PO number. Partial shipments must be identified as such on shipping memoranda and invoices. When shipping, Seller will make no declaration of value to carrier except where shipment is subject to released value rating.
13. AMERICAN STANDARDS
Seller warrants that in furnishing the Goods hereunder, it has complied with all applicable American standards (including, without limitation, ANSI, ASME, ASTM, and NEMA) at the time of delivery. When Goods purchased hereunder are to be manufactured or produced outside the United States or its territories, Seller shall furnish, at Trinity Trailer’s request, documents stating the foreign manufacturers’ or producers’ names and addresses and containing written assurances of compliance with American standards.
Seller shall, in its performance of this PO, comply with all applicable federal, state, and local statutes, rules of law, ordinances, regulations, and regulatory orders, all of which are incorporated herein by this reference. Seller is subject to all applicable contract clauses required by federal, state, or local law, rule, or regulation to be included in this PO.
15. FINAL ACCEPTANCE
On completion of this PO, Seller shall cooperate in carrying out any tests Trinity Trailer deems necessary to determine the proper functioning and general performance of the Goods and, at its own cost, shall make any adjustments and changes required to the end that an efficient and fully operative project will result. Final acceptance by Trinity Trailer is conditional upon fulfillment of this requirement.
16. TERMINATION FOR CAUSE OR CONVENIENCE
In the event of default, bankruptcy, insolvency, or failure or inability of Seller to perform, Trinity Trailer may terminate this PO for cause, and in the event of such termination, Trinity Trailer shall pay Seller (a) the unit price for each item of Goods properly furnished and accepted before cancellation, plus (b) the salvage value of Goods in process of manufacture, including unused materials, that are identified to and being manufactured or fabricated specifically for this PO and which shall be promptly delivered to Trinity Trailer, but in no event will the amount payable exceed the contract price, less the cost to Trinity Trailer of completion or procurement of substitute conforming Goods, less other damages, and less any payments previously made. Additionally, this PO is subject to cancellation at Trinity Trailer’s option. Where the PO is canceled for Trinity Trailer’s convenience, Seller will be paid (a) the unit price for each item of Goods properly furnished and accepted before cancellation, plus (b) the cost of Goods in process of manufacture that are identified as being manufactured or fabricated specially for this PO and that are promptly delivered to Trinity Trailer within terms, but in no event will the amount payable exceed the contract price, less any payments previously made. If this PO is issued as a blanket PO, Trinity Trailer will only be obligated to purchase, in addition to Goods properly furnished and accepted before cancellation, those Goods for which it has issued a release or similar document and that are being manufactured according to that release.
Seller, on behalf of itself and its employees, agrees that any ideas, know-how, concepts, information, or processes received from Trinity Trailer or created by Seller in connection with the performance of this PO shall be the property of Trinity Trailer and shall be preserved in strictest confidence by Seller and shall not be used or disclosed by Seller to third persons except to the extent that such use or disclosure is necessary for the proper performance of this PO. If disclosure to third persons is necessary, Seller shall ensure that such third persons hold such information in strictest confidence.
This PO and money due hereunder may not be assigned without Trinity Trailer’s prior written consent. Any attempted assignment without Trinity Trailer’s consent is void.
19. GOVERNING LAW
Except where inconsistent with the terms and conditions contained herein, this PO is governed by the Uniform Commercial Code provisions applicable to transactions in goods (“UCC”), regardless of whether this PO is characterized as a transaction in goods or a transaction in services. This PO must be interpreted and enforced under the laws of the State of Idaho, without regard for that state’s conflicts of laws jurisprudence.
20. MASTER CONTRACT
If this PO is issued as shipping instructions (and/or release document) pursuant to the terms of an existing contract between Trinity Trailer and seller, this PO will be governed exclusively by the terms of such existing contract.
21. HAZARD COMMUNICATION STANDARD
If the Goods sold hereunder are subject to the OSHA Hazard Communication Standard, 20 CFR Part 1910, or to such other state hazard communications laws, regulations, or standards as OSHA may have approved (the “Standard”), Seller shall provide Trinity Trailer with a complete and accurate Safety Data Sheet for each of the Goods sold hereunder and shall label each of the Goods as required by the Standard. Seller’s failure to supply such Sheet or to so label the Goods will constitute Seller’s warranty, representation, and covenant that each of the Goods sold hereunder is exempt from the Standard.
22. PROPOSITION 65
Seller warrants that all Goods sold hereunder will not, under normal conditions of shipment, storage, or use, cause any person to be exposed to a chemical that is a carcinogen or a reproductive toxin listed under the California Safe Drinking Water and Toxic Enforcement Act of 1986 in quantities that would require that a warning be given before such exposure under such Act.
23. MODIFICATIONS AND AMENDMENTS
No waivers, amendments, or modifications of any of the terms or conditions of the PO will be valid unless reduced to writing and signed by both parties. The terms and conditions of this PO may not be amended or modified by the course of performance or course of dealing between the parties.
All debts and obligations of Trinity Trailer and Seller to each other are mutual and subject to setoff. For purposes of this paragraph, “Trinity Trailer” and “Seller” will be deemed to include each party’s respective subsidiaries and affiliates that directly or indirectly control or are controlled by that party through 100% equity ownership.
Revised August 2018