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HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9142282Quotation Sold-To Customer:1001081 City of Fort Collins 700 Wood Street FORT COLLINS CO 80521 USA Ship-To Customer:2000176 CITY OF FORT COLLINS 700 WOOD BUILDING "A" SERVICE CENTER FORT COLLINS CO 80522 USA Information Quotation Number 300002973 Customer Service Rep Mac Wilson Account Manager Bryan Ehrlich Quotation Date 04/22/2014 Last Change Date 04/22/2014 Purchase Order No. RFQ 04222014 Freight Terms FOB Free on board Incoterms ORIGIn Freight Forwarder Payment Term Due Net in 30 days Currency USD Validity Period 04/22/2014 - 12/31/2014 Page 1 of 2 22 April 2014 09:30:06 Item Part Number / Description / PO Item # Quantity Unit Price Per Total 10 A3CSPOLY 100 EA 287.00 1 28,700.00 ZD5310P80L4 / Style Number ZD5310P80L4 FM 12S, CL 200,120-480V, W/ 128K MEMORY,NONE,A3 NODE, INT ANT, CAP BD,STANDARD RESET,A3R - LP,Green Nameplate Color ___________________ Sub Total 28,700.00 ___________________ Total $ 28,700.00 Elster Solutions LLC Tel: (919) 212-4800 208 S. Rogers Lane Fax: (919) 212-4735 Raleigh, NC 27610-2144 USA Page 2 of 2 22 April 2014 09:30:06 ELSTER SOLUTIONS, LLC GENERAL TERMS AND CONDITIONS OF SALE EFFECTIVE OCTOBER 1, 2009 1. General. Unless otherwise agreed by the parties in writing, the terms and conditions contained herein constitute the entire agreement (the "Agreement") between the parties with respect to Purchaser's order of goods or services and supersede all prior communications and agreements regarding the order. Acceptance by Elster Solutions, LLC ("Elster") of the order, or Purchaser's acceptance of Elster's quotation or proposal (the "Proposal"), is expressly limited to and conditioned upon Purchaser's acceptance of these terms and conditions. Purchaser's acceptance of goods or services from Elster shall be deemed to be Purchaser's acceptance of these terms and conditions. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser in a purchase order or other document, unless expressly agreed to in writing by Elster. Notwithstanding the foregoing, any software licenses purchased by Purchaser shall be governed exclusively by the terms and conditions of the applicable software license agreement (including, if applicable, a shrink-wrap or click-wrap software license agreement) in effect between the parties. 2. Prices. (a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof. (b) Unless otherwise specified by Elster, the price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser will assume the payment of all taxes, duties, fees and other charges assessed by any taxing authority in the Purchaser's country or country of ultimate destination with respect to the goods order. Purchaser agrees to pay or reimburse any such taxes, duties, fees or other charges which Elster or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide Elster a copy, acceptable to the relevant governmental authorities of any such certificate or permit. (c) Unless otherwise stated herein, Services prices are provided during Elster's normal business hours (8 a.m. to 5 p.m. U.S. Eastern Time, Monday through Friday, excluding Elster holidays). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; hours during Elster holidays will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are firm for one year from date of the contract. Thereafter, Elster can change the rates upon reasonable notice to Purchaser. 3. Payment. (a) Unless specified to the contrary in writing by Elster, payment terms are net cash, payable without offset, in United States Dollars, for receipt within 30 days from date of invoice by wire transfer or other mutually agreed method of payment to the account designated by Elster in the Proposal. (b) For any amount past due, Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus Elster's attorneys' fees and court costs incurred in connection with collection. 4. Changes. (a) Any changes requested by Purchaser affecting the ordered scope of work must be accepted by Elster and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change. (b) Elster may, at its expense, make such changes in the goods and services as it deems necessary, in its sole discretion, to conform the goods and services to the applicable specifications. If Purchaser objects to any such changes, Elster shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection. 5. Delivery. All goods manufactured, assembled or warehoused in the continental United States and to be delivered within the United States are delivered FOB Elster factory point of shipment. Goods delivered outside the United States will be delivered Ex Works, and Purchaser shall arrange for export clearance. Purchaser shall be responsible for any and all demurrage or detention charges. This is Elster's standard delivery term. (b) If the Purchaser requests and Elster agrees in a Proposal that goods shall be delivered FOB point of destination, Elster will deliver such goods FOB point of destination as selected by Purchaser with all freight costs prepaid by Elster. In order for Elster to cover the administrative, insurance, and logistic expenses involved with FOB point of destination deliveries, Elster shall add to the amount invoiced to Purchaser an amount equal to 2% of the purchase price of the goods being delivered. This amount will be added to the invoice as a separate line item. (c) If the scheduled delivery of goods is delayed by Purchaser or by Force Majeure, Elster may move the goods to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered. (d) Shipping and delivery dates are contingent upon Purchaser's timely approvals and delivery by Purchaser of any documentation required for Elster's performance hereunder. (e) Claims for shortages or other errors in delivery must be made in writing to Elster within ten days of delivery. Goods may not be returned except with the prior written consent of and subject to terms specified by Elster. Claims for damage after delivery shall be made directly by Purchaser with the common carrier. (f) Unless otherwise agreed in writing by the parties, the Purchaser shall be responsible for any required export/import licenses. The obligations of the Purchaser to pay for the goods shall not in any manner be waived by the delay or failure to secure or renew, or by the cancellation of any required export/import licenses. 6. Inspection and Acceptance. Purchaser shall have up to thirty (30) days after delivery of the goods to the specified delivery point to inspect and reject or accept the goods. Failure to reject the goods in writing citing any applicable non-conformity to a purchase order, order release or specification during such time shall be deemed acceptance of the goods. 7. Title and Risk of Loss. Title to the goods shall pass to Purchaser upon Purchaser's receipt of the good determined by Purchaser's choice of delivery according to either 5 (a) or 5 (b) above. Notwithstanding any agreement between Purchaser and Elster with respect to delivery terms or payment of transportation charges, Elster's standard term for risk of loss or damage shall pass to Purchaser upon delivery to the FOB Elster factory point of shipment/Ex Works delivery point (as defined in INCOTERMS, 2000 edition, published by the International Chamber of Commerce, ICC Publication 560). Notwithstanding the foregoing, title to any software delivered to Purchaser shall remain in Elster, and Purchaser shall receive only a license to use such software pursuant to the terms of the applicable software license agreement between the parties. 8. Warranties and Remedies. (a) Goods and Services Warranty. Elster warrants that goods shall be delivered free of defects in material and workmanship and that services shall be performed in a good and workmanlike manner. The warranty remedy period for goods shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The warranty remedy period for services shall end ninety (90) days after the date of completion of services. (b) Goods and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the goods or services during the applicable warranty remedy period, as specified above, under normal and proper use and provided the goods have been properly stored, installed, operated and maintained (Purchaser to provide proper records) and written notice of such nonconformity is provided to Elster promptly after such discovery and within the applicable warranty remedy period, Elster shall, at its option, either (i) repair or replace the nonconforming portion of the goods or re-perform the nonconforming services or (ii) refund the portion of the price applicable to the nonconforming portion of goods or services. (c) Exceptions. #In no event shall Elster be responsible for gaining access to the goods, disassembly, reassembly or transportation of the goods or parts from or to the place of installation, all of which shall be at Purchaser's risk and expense. Elster shall have no obligation hereunder with respect to any goods which (i) have been improperly repaired or altered; (ii) have been subjected to misuse, negligence or accident; (iii) have been used in a manner contrary to Elster's instructions; or (iv) are comprised of materials provided by or a design specified by Purchaser. (d) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER'S EXCLUSIVE REMEDIES AND ELSTER'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. (e) Notwithstanding the foregoing, goods supplied by Elster but manufactured by others are warranted only to the extent of the manufacturer's warranty, and only the remedies, if any, provided by the manufacturer will be allowed. Without limiting the generality of the foregoing, while Elster may incorporate a third party module into the goods, ELSTER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE MODULE AND THE OPERATION OF THE COMBINED MODULE/METER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM THE COURSE OF DEALING OR TRADE USAGE, AND COMPLIANCE OF THE MODULE AND THE COMBINED MODULE/METER WITH THE ANSI OR FCC REQUIREMENTS. While Elster may act as a broker for the module manufacturer and may assist Purchaser in obtaining the benefits of the module manufacturer's warranties, any express or implied warranty regarding the module or the operation of the combined module/meter, to the extent any such warranty may exist, is provided SOLELY BY THE MODULE'S MANUFACTURER. 9. Limitation of Liability. (a) In no event shall Elster, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the goods or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages. Elster's liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case exceed the purchase price allocable to the goods or services or part thereof which gives rise to the claim. In no event shall Elster be liable for, and Purchaser shall indemnify and hold harmless Elster, its affiliates and their respective officers, directors and employees from, any damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising from any improper installation or improper use of any goods by Purchaser, its customers, end users or anyone other than Elster, or arising from any failure by Purchaser to follow their own safety procedures in connection with the installation or use of the goods. (b) All causes of action against Elster arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the installation of the product to which such claim relates. 10. Choice of Law. This Agreement shall be governed by the laws of the State of North Carolina, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding North Carolina law with respect to conflicts of law. Purchaser agrees that all causes of action against Elster under this Agreement shall be brought solely and exclusively in the State Courts of the State of North Carolina, or the U.S. District Court for the Eastern District of North Carolina. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. Force Majeure. Elster shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, acts of war or terrorism, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery of goods or performance of services will be extended by period equal to the delay plus a reasonable time to resume production. 12. Cancellation; Waiver. Any order release may be cancelled by Purchaser only upon prior written notice and payment of cancellation charges, including but not limited to, all costs identified to the order incurred prior to the effective date of notice of cancellation and all expenses incurred by Elster attributable to the cancellation, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs. Payment shall be made within 30 days after the date of invoice. The waiver, express or implied, by any party of any of its rights arising under this Agreement, shall not constitute or be deemed an ongoing waiver or a waiver of any other right hereunder, whether of a similar or dissimilar nature. 13. Termination; Severability. Elster may terminate any order for nonpayment or other material breach by Purchaser that is not cured within thirty (30) days following written notice thereof. No termination by Purchaser for default shall be effective unless, within thirty (30) days after receipt by Elster of Purchaser's written notice specifying such default, Elster shall have failed to initiate and pursue with due diligence correction of such specified default. In the event any provision of this Agreement are for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible. 14. Export Control. (a) Purchaser represents and warrants that the goods and services provided hereunder and the "direct products" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by Elster or the "direct product" thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations. (b) If applicable, Elster shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by Elster. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by Elster without liability for damages of any kind resulting from such cancellation. At Elster's request, Purchaser shall provide to Elster a Letter of Assurance and End-User Statement in a form reasonably satisfactory to Elster. 15. Resale. If Purchaser resells any of the goods (other than software, which is non-transferable), the sale terms shall limit Elster's liability to the buyer to the same extent that Elster's liability to Purchaser is limited hereunder. In addition, when reselling any of the goods, Purchaser shall maintain strict compliance with the Export Administration Act of 1979, as amended, or any other United States laws and regulations as shall from time to time govern the sale, license and delivery of technology or goods abroad by persons subject to United States law. Resale of goods does not transfer unique LAN identification or software embedded in or related to meters. The buyer of resold goods must contact Elster directly for such components. 16. Assignment. Neither this Agreement nor any interest under it shall be assigned by Purchaser without the prior written consent of Elster.