Plex, by Rockwell Automation Terms and Conditions

Purchase Order Terms & Conditions

1. General:

The following terms and conditions, together with such terms as are set forth in the Purchase Order Form Agreement ("Order Form"), along with such plans, specifications or other documents as are incorporated by reference into this document, as amended in any subsequent authorized writing from Plex, by Rockwell Automation (“Plex”), shall constitute the entire contract (collectively, the "Purchase Order") between Plex and the Supplier listed in the Order Form (“Supplier”). If bid documents, performance specifications, technical product descriptions, and/or other similar descriptive materials submitted by Supplier in connection with the Purchase Order, or Supplier's proposal, have been incorporated by reference, these shall not be deemed to supersede any contrary requirements of Plex, but to the extent that such materials are not inconsistent with Plex's requirements and these terms and conditions, they shall constitute a part of this Purchase Order. If this Purchase Order is construed as an offer, this offer expressly limits acceptance to the specific terms of this Purchase Offer and written notice of objection to and rejection of any different or additional terms in any response to the offer is hereby given. If this Purchase Order is construed as an acceptance of an offer, such acceptance is limited solely to acceptance of the express terms contained in this Purchase Order.  Any Supplier proposal for additional, supplemental, conflicting, inconsistent, and/or different terms or any attempt by Supplier to vary in any degree any of the terms of this Purchase Offer in Supplier's acceptance is hereby objected to and rejected and must be agreed to in a written amendment to this Purchase Order executed by both parties. Any such Supplier proposal of any additional, supplemental, conflicting, inconsistent, and/or different terms shall not operate as a counteroffer or rejection of this Purchase Order. If this Purchase Order is construed as a confirmation of an existing contract, the parties agree that this Purchase Order states the exclusive terms of any contract between the parties. This Purchase Order shall be deemed to have been accepted by Supplier upon receipt by Plex of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following (whichever occurs first): (i) shipment of the goods ordered under this Purchase Order or any portion thereof, (ii) Supplier’s commencement of any work, (iii) Supplier’s acceptance of payment, or (iv) Supplier’s performance and/or provision of any services hereunder.

2. Payment:

Discount terms are as set forth in the Order Form. If no terms are specified, the net amount shall be payable within forty-five (45) days after the later of (i) delivery by Supplier and acceptance by Plex of goods and services or other performance conforming to the terms and conditions of this Purchase Order, and (ii) invoicing in accordance with the terms of the Order Form. Supplier hereby assigns to Plex all rights to refunds of sales and use taxes paid in connection with this Purchase Order and agrees to cooperate with and assist Plex in the processing of any refund claims. Unless expressly otherwise provided in the Order Form, Plex shall not be liable for any shipping, handling, fuel surcharges, insurance, or similar fees. All claims for money due or to become due from Plex shall be subject to deduction and/or set off by the Plex by reason of any counterclaim arising out of this Purchase Order or any other transaction between Plex and Supplier.

3. Time:

If delivery or completion of the agreed upon date(s) cannot be met, Supplier shall immediately inform Plex in writing of any such delay. Such written notice shall not, however, constitute a change to or acceptance of the delivery or completion terms of this Purchase Order unless Plex modifies this Purchase Order in writing. If any item is not received or if any element of the work and/or services is not completed by the date specified, Plex, at its option and without prior notice to Supplier, may either approve a revised date or may cancel this Purchase Order and may obtain such goods, work, and/or services from another source and, in either event, Supplier shall be liable to Plex and shall promptly reimburse Plex for any loss, damage, and/or additional cost directly or indirectly incurred by Plex. Plex’s remedies provided herein shall be cumulative and are in addition to any other rights and remedies available at law or in equity. Supplier's sole remedy for a delay caused by Plex shall be an extension in the time for Supplier's performance equal to the duration of Plex's delay. TIMING OF DELIVERY OF ALL GOODS AND/OR PERFORMANCE OF THE SERVICES IS OF THE ESSENCE.

4. Improper Performance/Disputes/Governing Law:

In addition to other remedies provided by law, Plex reserves the right to reject any goods and/or services and/or revoke any previous acceptance and to cancel all or any part of this Purchase Order if Supplier fails to deliver all or any part of the goods or perform any of the work in accordance with the terms and conditions of this Purchase Order. Acceptance of any part of the Purchase Order shall not bind Plex to accept any future shipments of goods and/or provision of any work, nor deprive Plex of the right to return goods already accepted. The validity, interpretation and performance of these terms and conditions and this Purchase Order shall be governed by the laws of the state of Michigan, without regard to choice of law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods.  The parties agree that the sole and exclusive jurisdiction and venue for any dispute, claim, or litigation arising from or relating to this Purchase Order shall be brought in the state courts of Oakland County, Michigan or federal district court in the Eastern District of Michigan and Supplier hereby irrevocably consents to such jurisdiction, unless Plex and Supplier otherwise agree in writing to utilize an alternative dispute resolution process (e.g., binding arbitration).

5. Representations and Warranties:

Supplier expressly represents and warrants to Plex that: (i) it has good title to all goods and services, free from any lien and/or encumbrance; (ii) all goods and services furnished under this Purchase Order shall conform to the requirements of the specifications and documentation represented by Supplier and to all industry standards, will be new, and will be free from defects in material and workmanship and be of the quality, size and dimensions ordered; (iii) all goods and services will conform to any statements made on the containers or labels or advertisements for such goods and services, and that any goods will be adequately contained, packaged, marked, and labeled; (iv) all goods and services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods and services of that kind are normally used; (v) if Supplier knows, has reason to know, or been informed of the particular purpose for which Plex intends to use the goods and/or services, Supplier warrants that such goods and services will be fit for such particular purpose; (vi) all goods and services furnished and work performed under this Purchase Order are in conformity with all plans, specifications and other data incorporated as part of this Purchase Order and will conform in all respects to samples, examples, and  specifications previously shown or disclosed to Plex; (vii) it is and shall remain in compliance with all applicable laws, regulations, and standards including, without limitation, those relating to the design, manufacture, testing, labeling, sale, transportation, use, maintenance, and repair of the goods and provision of the services; (viii) all goods and services provided by Supplier do not infringe any patent, copyright, trade secret, or any other intellectual or proprietary right of any third party; (ix) it has sufficient rights, title and interest in and to the goods and services to grant to Plex the rights granted in this Purchase Order; (x) it has not previously granted and will not grant any rights in the goods or services to any third party which are inconsistent with the rights granted to Plex herein; (xi) it has full power and authority to enter into this Purchase Order and to carry out its obligations contained herein; and (xii) its execution of this Purchase Order and the provision of the goods and services hereunder do not and will not breach any other agreement or obligation to which it is or was a party. Inspection, testing, acceptance and/or use of any of the goods and/or services furnished hereunder shall not affect Supplier's obligation under this paragraph and such warranties shall survive inspection, test, acceptance, and use of any goods and/or services purchased by Plex. Supplier's warranties shall apply to Plex, its successors, assigns, customers, and users of products and services sold by Plex and to any third party on whose behalf Plex has purchased such goods and/or services.  Supplier shall promptly (but in no event more than three (3) business days) replace or correct any defect of any goods or services not conforming to the foregoing warranties, without expense to Plex, when notified of such non-conformity by Plex, provided Plex elects to provide Supplier with the opportunity to do so.  In the event of failure of Supplier to correct defects in or replace non-conforming goods or services within the enumerated three (3) business day deadline, Plex, after reasonable notice to Supplier, may make such corrections or replace such goods and services and charge Supplier for the cost incurred by Plex in doing so. The warranties contained in this paragraph are in addition to and not in lieu of any warranties provided by the manufacturer of any goods provided or sold to Plex under this Purchase Order.  These express warranties shall not be waived by reason of acceptance or payment by Plex. This Purchase Order incorporates by reference all terms of the Uniform Commercial Code as adopted in Michigan (the "UCC") providing any protection to Plex for goods, including but not limited to all warranty protections (express or implied) and all of Plex's remedies under the UCC. All goods and work shall also be subject to any stricter and/or additional warranties specified in this Purchase Order, offered by the manufacturer of any goods purchased by Plex under this Purchase Order, and/or in other materials incorporated by reference.

6. Price Warranty:

Supplier warrants that the prices for all goods and services sold to Plex under this Purchase Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in similar quantities.  In the event Supplier reduces its price for any such goods and services within one (1) year of Supplier’s provision of any such good or service to Plex, Supplier shall immediately and automatically reduce the price charged to Plex and promptly send to Plex a refund equal to the difference between the price paid by Plex and the reduced price.  Supplier warrants that prices shown in this Purchase Order shall be complete and no additional charges of any type shall be added without Plex's express written consent. Such additional charges include, but are not limited to, shipping, packaging, handling, labeling, custom duties, taxes, storage, insurance, boxing, and/or crating.

7. Delivery/Title/Risk of Loss:

Time is of the essence. If delivery of any item or rendering of any service is not completed by the delivery date set forth in this Purchase Order, Plex shall have the right, without liability and in addition to its other rights and remedies, to terminate this Purchase Order in whole or in part by written notice effective when received by Supplier as to any items not yet shipped or services not yet rendered and to purchase substitute items and/or services from another source and charge Supplier with any additional cost incurred by Plex. Unless the Purchase Order expressly states otherwise, all goods shall be shipped FOB: the "Destination" location designated in the Order Form. Title and risk of loss shall not pass to Plex until the goods purchased in this Purchase Order actually have been received and accepted by Plex at the specified destination location. Until receipt and acceptance by Plex, Supplier assumes full responsibility for packing, crating, marking, transportation, delivery, insurance, and liability for loss and/or damage even if Plex has agreed to pay freight, express, or other transportation charges. Supplier shall provide replacement of any items lost, misplaced, or damaged in transit, at no additional charge, within three (3) business days of receipt of notice from Plex. If, in order to comply with Plex's required delivery date, it becomes necessary for Supplier to ship by a more expensive way than specified in this Purchase Order, any increased transportation costs resulting therefrom shall be paid for by Supplier unless the necessity for such rerouting or expedited handling has been caused by Plex or pre-approved in writing by Plex.

8. Inspection and Testing:

All goods and services ordered under this Purchase Order will be subject to inspection and testing by Plex to the extent practicable and at Plex’s discretion at all times and places, including during the period of manufacture and in any event prior to acceptance.  Supplier shall permit access to Supplier's facilities at all reasonable times for inspection of goods by Plex's agents or employees and Supplier will provide all tools, facilities and assistance reasonably necessary for such inspection at no additional cost to Plex. Such goods and services will be subject to final inspection and acceptance by Plex after delivery to Plex.  It is expressly agreed that inspections and/or payment prior to delivery will not constitute final acceptance. If the goods and/or services delivered do not meet the specifications or otherwise do not conform to all of the requirements of this Purchase Order, Plex shall have the right to reject such goods and/or services.  Goods and services which have been delivered and rejected in whole or in part may, at Plex's option, be returned to Supplier or held for disposition at Supplier's risk and expense.

9. Indemnification:

From and after the date of this Purchase Order, Supplier shall indemnify, defend, and hold harmless Plex, its directors, officers, employees, agents, and contractors (other than Supplier) from and against any and all claims, liabilities, damages, allegations, costs, and expenses, including reasonable attorney’s fees, arising from,  resulting in any way from, caused by, or related to (and regardless of by whom such claim or liability may be asserted):  (i) any allegation, lawsuit or proceeding brought for any claim of infringement of any copyright, patent, trademark, or any other proprietary or intellectual property right, arising out of or related to Supplier’s provision of any goods and/or services under this Purchase Order; (ii) any claim of personal injury (including death) or damage to real or personal property (including lost data), arising from, caused by, or relating to any act, error, omission, or negligence of Supplier, its employee, agent, and/or contractor; (iii) any breach of this Purchase Order by Supplier, its employee, agent, and/or contractor or otherwise that may result directly or indirectly from the use, possession, or ownership of the goods or from the services provided by Supplier pursuant to this Purchase Order; or (iv) any defect in any goods or services purchased under this Purchase Order. Plex shall promptly notify Supplier in writing of the allegation, claim, lawsuit, or proceeding for which Supplier is obligated under this paragraph and, at Supplier’s expense, cooperate with and assist Supplier as reasonably required. Plex may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the reasonable costs of such representation shall be paid by Supplier. This indemnification shall be in addition to the warranty obligations of Supplier and shall survive the expiration or termination of this Purchase Order for any reason. Supplier shall not settle or compromise any claim or action in a manner that imposes any restrictions or obligations on Plex without Plex's prior written consent. If Plex elects to require that Supplier defend a claim pursuant to this paragraph, and Supplier fails or declines to assume the defense of any such claim within five (5) business days after written notice thereof, Plex may assume the defense of such claim for the account and at the risk of Supplier, and any expenses incurred by Plex as well as any liabilities related thereto shall be conclusively deemed a liability of Supplier. The indemnification rights of the indemnified parties are in addition to all other rights and remedies such indemnified parties may have at law or in equity or otherwise. The indemnification rights shall also be in addition to the warranty obligations of Supplier and shall survive the expiration or termination of this Purchase Order for any reason.

10. Insurance:

While this Purchase Order is in effect and for a period of six (6) months after Supplier’s final delivery and Plex’s acceptance of all goods and services under this Purchase Order, Supplier, at its own cost and expense, shall obtain and maintain in force the following insurance coverage:

1. A policy of workers' compensation insurance, in amounts required by law, covering all officers and employees of Supplier who are in any way engaged in or connected with this Purchase Order, and employer's liability insurance in an amount of not less than Five Hundred Thousand U.S. Dollars (US$500,000). Supplier shall require its agents, sub-suppliers, and subcontractors, who are in any way engaged in or connected with this Purchase Order to maintain the same insurance coverage as required herein of Supplier.
2. A policy of commercial general liability insurance with broad form property damage endorsement, personal injury and products completed operations coverage, providing protection in an amount of not less than Two Million U.S. Dollars (US$2,000,000) per incident and in the aggregate, with respect to personal injury, death, or damage to property.
3. If this Purchase Order contemplates the provision of any professional services, a policy of professional liability insurance, including errors and omissions, providing protection of not less than One Million U.S. Dollars (US$1,000,000) per incident and One Million U.S. Dollars (US$1,000,000) in the aggregate.
4. A policy of comprehensive automobile liability insurance covering the operation of all motor vehicles used by Supplier or its agents or contractors in connection with this Purchase Order, providing protection in an amount of not less than One Million U.S. Dollars (US$1,000,000) combined single limit with respect to personal injury, death, and/or damage to property.

All of insurance policies shall be issued by insurance companies with an AM Best rating of "A" or higher and a financial strength rating of VII or higher, or equivalent ratings provided by a disinterested, generally recognized rating agency, which companies shall be licensed or permitted to conduct business in Michigan. The commercial general liability policy shall name “Plex, by Rockwell Automation” as an additional insured, and shall be written as primary coverage and not contributing with or in excess of any coverage that Plex may carry. Supplier shall promptly furnish to Plex a current certificate of insurance for each of the policies required above. Insurance coverage(s) provided under this Purchase Order shall not limit or restrict in any way the liability of Supplier arising under or in connection with this Purchase Order. Such insurance shall not be canceled or terminated without thirty (30) days prior written notice to Plex of any cancellation or termination.

11. Assignment/Subcontracting:

No part of this Purchase Order, including, without limitation, any of Supplier’s obligations hereunder, may be assigned, delegated, and/or subcontracted without prior written approval of Plex. To the extent Plex permits any such assignment, delegation, and/or subcontracting, Supplier shall at all times be and remain responsible for all acts, errors, omissions, and negligence of its subcontractors and agents.

12. Termination Without Cause:

Plex, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, upon written notice at any time without incurring liability to Supplier for lost revenue or profits, or any other costs or damages. In the event of such termination, Supplier shall immediately stop all work hereunder and shall immediately cause any of its suppliers or subcontractors to cease such work. Supplier shall be paid a reasonable termination charge consisting of a percentage of the purchase price reflecting the unit price of the goods delivered and accepted by Plex or pro-rate portion of the work completed prior to the notice of termination.  Supplier shall not be paid for any goods shipped or delivered or work done after receipt of the notice of termination. Supplier shall refund to Plex any unused portion of advanced payments within thirty (30) days of notice of termination.  Supplier's warranties and Supplier's liability for defective or non-conforming work or goods as well as Sections 1, 2, 4 through12, and 14 through 19 of these Terms and Conditions shall survive termination of this Purchase Order for any reason and shall remain in full force and effect.

13. Default/Cancellation:

Plex reserves the right, by written notice of default, to cancel this Purchase Order, without any liability to Plex, in the event of any of the following: insolvency of Supplier, the filing of a voluntary petition in bankruptcy by Supplier, the filing of an involuntary petition to have Supplier declared bankrupt, the appointment of a receiver or trustee for Supplier, or the execution by Supplier of an assignment for the benefit of creditors.  Additionally, if Supplier fails to perform as specified herein, or if Supplier breaches any of the terms hereof, Plex has the right, without any liability to Plex, upon giving Supplier written notice, to (i) cancel this Purchase Order in whole or in part and Supplier shall be liable to Plex for all damages, losses and liability incurred by Plex directly or indirectly resulting from Supplier's breach, or (ii) obtain the substitute goods and/or services ordered herein from another source with any excess cost incurred by Plex resulting therefrom chargeable to and promptly reimbursable by Supplier to Plex. The remedies provided in this Purchase Order shall be cumulative and in addition to any other remedies provided at law or in equity.

14. Additional Provisions for Work Performed on Site:

The provisions set forth in Sections 14(1) and 14(2) below shall apply to work performed at locations owned, leased, or otherwise controlled by Plex ("Site").

1. Supplier shall maintain on the Site at all times a sufficient work force to carry out its obligations in a professional, efficient, and timely manner. Supplier shall employ only competent, skilled, reliable, trained, experienced, and honest workers who will work collaboratively with other workers on the Site. All persons furnished by Supplier shall be deemed Supplier's employees, contractors, or agents, and Supplier shall comply with all applicable laws and statutes regarding worker's compensation, employer's liability, unemployment compensation, and/or benefits as well as all other applicable laws relating to or affecting the employment of labor. At Plex's instruction, Supplier shall promptly remove from the Site any employee or contractor who, in Plex's opinion, represents a threat to the safety or progress of the project or other persons on the Site, or who has engaged in any improper, unethical, and/or unprofessional conduct including, without limitation, conduct which Plex perceives as constituting harassment of any person.
2. Supplier shall ensure that federal, state and county of residence criminal background checks are conducted on any person assigned to perform any work at the Site and, subject to and in compliance with applicable law, shall exclude from the Site any dishonest, dangerous, or otherwise unqualified person.

15. Confidentiality and Privacy Requirements.

Supplier shall consider all information furnished by Plex to be confidential and shall not disclose any such information to any other person or entity, or use such information for any purpose other than performing and fulfilling its obligations under this Purchase Order. This paragraph shall apply to all drawings, specifications, data, and any other documents prepared by Supplier for Plex in connection with this Purchase Order. All specifications, data and other information furnished by Plex or its agents to Supplier in connection with this Purchase Order shall remain the exclusive intellectual property of Plex and shall be treated by Supplier as Plex confidential information and shall not be disclosed or used outside the limitation of this Purchase Order without Plex’s prior written approval. Supplier shall not advertise or publish the fact that Plex has contracted to purchase goods and/or services from Supplier, nor shall any information relating to this Purchase Order be disclosed without Plex's prior written consent. Unless otherwise agreed in writing, no commercial, financial,  technical, or any other information disclosed in any manner or at any time by Supplier to Plex shall be deemed proprietary, trade secret, or confidential information and Supplier shall have no rights against Plex with respect thereto except such rights as may exist under patent laws.

16. Resale

Plex is hereby granted the right to resell and/or remarket any goods and/or services purchased under this Purchase Order and Plex will determine the prices at which any such goods and/or services are resold.

17. Limitation of Liability

In no event shall Plex be liable for any anticipated or lost profits or revenue or for any incidental, indirect, special, punitive, or consequential damages. Plex's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order or from its performance or breach thereof shall in no case exceed the price allocable to the specific goods or services or unit thereof, which gives rise to the claim for damages.  Any action resulting from any breach on the part of Plex as to the goods and/or services delivered hereunder must be commenced within one year after the cause of action has accrued.

18. Counterparts/Electronic Signatures

This Purchase Order may be executed and delivered in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. This Purchase Order may be executed and delivered by facsimile, emailed PDF, or electronic signature, and the parties agree that such facsimile/electronic signature execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile/electronic signatures as evidence of the execution and delivery of this Purchase Order by all parties to the same extent that an original signature could be used.

19. Independent Contractors:

The relationship between the parties is that of independent contractors.  There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

20. Entire Agreement; Amendments:

Except for the terms and conditions of any written non-disclosure agreement entered into between the parties, which shall remain in full force and effect, this Purchase Order is the complete agreement between the parties hereto concerning the subject matter of this Purchase Order and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein and no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. This Purchase Order may be amended, supplemented, or modified only by a writing signed by both parties.

Version: 022618