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Precision Turbo & Engine Rebuilders, Inc. Standard Purchase Order Terms and Conditions

1. Definitions.

The term "Buyer" means Precision Turbo & Engine Rebuilders, Inc. The term "Seller" means the person selling Products to Buyer. The term "Products" means the products or goods being sold by Seller to Buyer. The term "Services" means all work or services being performed for Seller to Buyer. "Terms and Conditions" means the terms and conditions specified hereinbelow.

2. Priority.

Any written agreement signed by both Buyer and Seller or any purchase order issued by Buyer and accepted by Seller (each a "Purchase Order") shall be subject to these Terms and Conditions. BUYER OBJECTS TO, AND REJECTS, TERMS AND CONDITIONS PROPOSED BY SELLER IN CONNECTION WITH ANY QUOTATION, ORDER ACKNOWLEDGMENT, INVOICE, PACKING SLIP OR OTHERWISE, AND SUCH TERMS OR CONDITIONS SHALL HAVE NO EFFECT. If there is a conflict or inconsistency between these Terms and Conditions and any Purchase Order, the applicable Purchase Order shall govern.

3. Acceptance.

Seller’s written acceptance or commencement of any performance of any Purchase Order constitute Seller’s acceptance of these Terms and Conditions. Buyer reserves the right to change quantities, specifications and delivery dates set forth in any Purchaser Order at any time, in Buyer’s sole discretion.

4. Products; Services.

All Products sold by Seller and all Services performed by Seller shall be of good quality and free from defects in material and workmanship and shall strictly conform to the specifications agreed to in writing or provided by Buyer. To the extent applicable, Seller shall assign to Buyer all rights and warranties related to any of the Products or any raw materials included in the Products purchased from a third party and included in the Products.

5. Packing.

Seller shall pack the Products in a manner that will withstand shipping, handling and unloading. Seller shall pay all charges for boxing, crating, demurrage, packing and storage of Products prior to shipment.

6. Shipment.

Buyer shall provide shipping and routing instructions to Seller for the shipment of Product. Seller shall provide Buyer, by close of business the date of shipment, a copy of the bill of lading signed by the carrier. Seller shall enclose with all shipments a packing slip setting forth the applicable purchase order number, quantity, description of products, carrier, and shipment identification number (e.g. Buyer’s material number). All shipment/freight costs shall be borne by Seller unless otherwise expressly agreed upon in the applicable Purchase Order.

7. Delivery; Performance; Risk of Loss.

TIME IS OF THE ESSENCE. Buyer requires prompt delivery of Products and performance of Services. Buyer is not obligated to accept early deliveries, late deliveries, partial deliveries or excess deliveries. Title and risk of loss shall transfer to Buyer upon delivery to Buyer’s facility FOB.

8. Changes.

Buyer shall have the right from time to time by written or electronic change notices to make change in or additions to drawings, specifications, or instructions for the work covered by a Purchase Order and Seller agrees to comply with such change notices. After the date of any Purchase Order is accepted, Seller shall not change the manufacturing process, materials, or inspection procedure used in the manufacture of Products covered by such Purchase Order without the prior written consent of Buyer. Supplier must notify Buyer, in writing, of any changes to the manufacturing process for the Product or Service prior to changes being instituted. Examples of such changes include, but are not limited to, manufacturing site, process, raw material source, specification limit, subcontracting of service(s), and any other change which may impact the usability or functionality of the Product.

9. Inspection; Rejection.

All shipments are subject to Buyer’s inspection and rejection and Buyer reserves the right to refuse shipments at the time of delivery. Buyer shall notify Seller of rejections due to defective or nonconforming Products and/or Services or otherwise based upon Buyer’s inspection within 90 days of shipment. Seller shall assume all out-of-pocket expenses in connection with any rejected shipment, including all storage, insurance, labor and other charges and expenses paid by Buyer. No replacement of rejected shipments shall be made without Buyer’s prior consent. Seller shall refund to Buyer all monies paid to Seller for rejected Shipments, and any amounts paid for the transportation of rejected Shipments, both to Buyer and for return to Seller. Seller shall pay for all shipping costs for any replacement Products. Payment by Buyer for non-conforming shipments or Products shall not constitute acceptance, limit or impair Buyer’s right to assert any remedy, or relieve Seller’s responsibility for defects not discovered upon inspection.

10. Price; Payment.

All prices are in U.S. dollars unless otherwise specified in the applicable Purchase Order. Buyer shall pay each undisputed invoice in full within thirty (30) days of receipt. No invoice shall be issued prior to shipment of Products or completion of Services. The Seller must put the Purchase Order number on all invoices; otherwise, such invoice may be returned and payment delayed. Notwithstanding the foregoing, final payment shall not become due until Seller has fulfilled to Buyer’s satisfaction all Seller’s obligations.

11. Taxes.

Any and all taxes, duties, and customs clearance charges levied as a result of the purchase and sale of Products and/or Services, except for taxes on Buyer’s income, shall be the responsibility of Seller.

12. Cancel; Termination.

Buyer may terminate these Terms and Conditions and/or cancel any Purchase Order without incurring liability to Seller, if Seller (a) fails to timely deliver Products, (b) repudiates or breaches the terms of any Purchase Order or these Terms and Conditions and fails to cure such breach within five (5) days after delivery of written notice to Seller specifying such breach, or (c) becomes insolvent, makes an assignment for the benefit of creditors, is the subject of a proceeding for the appointment of a receiver or trustee, files a voluntary petition in bankruptcy or is the subject of an involuntary petition in bankruptcy. Buyer may cancel any Purchase Order for the sole convenience of Buyer at any time prior to shipment of Products.

13. Intellectual Property.

All proprietary rights embodied in designs, tools, patterns, drawings, information, and equipment supplied by Buyer under any Purchase Order are reserved and the use is restricted to the work to be performed under the applicable Purchase Order. All such designs, tools, patterns, drawings, information and equipment, and all copies thereof, shall be returned to Buyer upon completion of Services on final delivery of Products.

14. Patents, Copyrights, and Trade Secrets.

Seller agrees to indemnify, hold harmless, and defend Buyer, its directors, agents, and employees from and against any suit, claim, or demand alleging infringement of any patent or copyright or misappropriation of any trade secret in the United States, in the country of source, or country of destination, based on the manufacture, assembly, sale, lease or use of any Products or Services supplied under any Purchase Order or in connection with the performance of work hereunder including the supply or use of materials or equipment for or in connection with such work.

15. Representations and Warranty.

Seller hereby represents, warrants and covenants that, as of the date of the applicable Purchase Order, and the date of each delivery of Product, the following will be true and accurate: (a) Seller has and will continue to have the right, power and authority to enter into and agree to these Terms and Conditions and the Purchase Order; (b) Seller’s performance under a Purchase Order does not and will not violate any law or regulation, and does not or will not conflict with, or result in any breach or termination of, any agreement or instrument to which Seller is a party or to which the Products or Seller’s facilities are bound; (c) no order, judgment, or consent of any governmental authority exists which does or would affect the transactions contemplated by the applicable Purchaser Order or restrict the use of the Products, ability to manufacture the Products at the Seller’s facilities, or sale of the Products; (d) the Products are and will be merchantable, fit for their intended purpose, free from any defects and in compliance with all applicable specifications, (e) the Products and Services will conform to the description stated in the Purchase Order, and (f) Seller has and will convey to Buyer title to each shipment of the Products, free from any liens, encumbrances, claims or defects in title

16. Liability Limitation.

IN NO EVENT SHALL BUYER BE LIABLE FOR LOST PROFITS, BUSINESS INTERRUPTION; INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES; OR DAMAGE, LOSS, THEFT OR INJURY TO SELLER’s PROPERTY. IN NO EVENT SHALL BUYER BE LIABLE FOR DAMAGES THAT EXCEED THE AGGREGATE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES FOR THE THREE (3)-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. Any action by Seller arising out of or relating to the any Purchase Order must be commenced by Seller within one (1) year after the date of the final delivery of Product or completion of Services subject to such Purchase Order.

17. Force Majeure.

If Seller is prevented from complying with any term of any Purchase Order and these Terms and Conditions by reason of fire, flood, riot, war, rebellion, acts of terrorism, or other acts of God, upon written notice to Buyer, the affected provisions and/or other requirements of the applicable Purchase Order shall be suspended during the period of such disability, and Buyer may, in its sole discretion, purchase the Products or obtain the Services from alternative suppliers for the duration of such disability. Seller shall make all reasonable efforts to remove such disability as soon as possible. Upon cessation of the disability, Seller shall immediately resume performance hereunder. If the disability continues for more than thirty (30) days, Buyer shall have the right to terminate the applicable Purchase Order.

18. Indemnification.

Seller shall indemnify, defend and hold harmless Buyer, its affiliates, and their respective directors, officers, employees, agents, shareholders, partners, members and representatives (collectively, the "Indemnified Parties") from and against any and all claims, allegations, actions, demands, liabilities, losses, damages, injuries, illnesses, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) based upon, in whole or in part, any act or omission of Seller, any breach of these Terms and Conditions or any Purchase Order by Seller or any rejections relating to any Products or Services. Buyer and the applicable Indemnified Party may be represented and actively participate through their own counsels, at Seller’s cost and expense, in the defense of such claim hereunder. This indemnification is one of first defense and payment, not of reimbursement or surety, and shall survive the expiration or termination of these Terms and Conditions or any Purchase Order.

19. Insurance.

Seller shall keep in force and effect commercial general liability and product liability insurance, including contractual liability insurance with minimum primary policy limits of not less than one million dollars ($1,000,000) per occurrence; and with minimum excess or umbrella policy limits of not less than two million dollars ($2,000,000) per occurrence, insuring against personal injury, bodily injury and property damage. The insurer under such policy shall be acceptable to Buyer, in its discretion. The Indemnified Parties shall be named as additional insureds on all of Seller’s policies, including those in excess of the required minimums set forth in this Section, and all coverage Seller’s insurance shall in no way limit Seller’s obligations or liability under these Terms and Conditions or any Purchase Order.

20. Remedies; Waiver.

In the event of a breach by Seller, Buyer shall have the right, among other things, to (a) cancel the applicable Purchase Order, in part or whole, (b) reject any pending shipments at Seller’s expense and (c) recover all damages suffered by Buyer (including, but not limited to, cost of replacing Product and/or Services, additional manufacturing costs and import duties and/or special or consequential damages). All rights and remedies of Buyer shall be non-exclusive and cumulative. Buyer may set-off the amount of any claim against any amounts due Seller herewith.

21. Recordkeeping.

Seller shall maintain records showing the source of all materials used in the manufacture of Products or performance of Services.

22. Law Compliance.

Seller shall comply with all applicable U.S. and foreign laws, rules, regulations, ordinances and executive orders ("Laws") applicable to any Purchaser Order or these Terms and Conditions and its obligations hereunder.

23. Assignments.

Seller shall not assign, delegate or subcontract any interest in or right or obligation under a Purchase Order and/or these Terms and Conditions, without Buyer’s prior written consent.

24. Governing Law.

These Terms and Conditions and all Purchase Orders shall be construed in accordance with the laws of the State of Indiana, without regard to conflict of laws. The state and federal courts sitting in Lake County, Indiana shall have exclusive jurisdiction over any matters relating to these Terms and Conditions, and the parties hereby consent to the jurisdiction of such courts.

25. Independent Contractor.

Buyer and Seller are independent contractors, and not an agency, partnership, joint venture, employment or other relationship.

26. Severability.

The Purchase Order and these Terms and Conditions constitute the entire agreement between Seller and Buyer relating to the sale and purchase of the Products. If any provision is unenforceable, the remaining provisions will remain in full of force and effect.

27. Survival.

The provisions of these Terms and Conditions shall survive the expiration and/or termination of any applicable Purchase Order.

28. Notice.

Any notice shall be deemed to be effective if delivered personally, upon delivery; if mailed by overnight courier, one day after mailing; if faxed or sent via PDF with confirmation sheet, upon transmittal. However, a notice given in accordance with the above but received on a non-working day or after business hours in the place of receipt will be deemed given on the next working day in that place.

29. Waiver and Amendment.

Failure of Buyer to enforce any provisions of these Terms and Conditions shall in no way be considered (a) a waiver of such provisions, and (b) shall not preclude Buyer from exercising the same or any other rights hereunder. Acceptance or payment for all or any part of the Products and/or Services shall not be a waiver of any of Buyer’s rights under these Terms and Conditions. No modification to these Terms and Conditions or any Purchase Order shall be binding upon Buyer unless made in writing and signed by Buyer’s authorized representative.

30. Confidentiality.

Seller shall keep confidential all information identified by Buyer in writing as confidential and use it only for the purposes set forth in these Terms and Conditions, except that information shall not be deemed confidential if it is or comes into the public domain through no wrongful act of Seller, was possessed by the Seller prior to the time it was disclosed by Buyer, was rightfully received by Seller from a third party or was independently developed by Seller.

Revised: March, 2015

PTE-QP-043 rev.000