General Terms and Conditions ("ATG Terms")
EFFECTIVE: July 26, 2019
At Auto Truck Group, LLC (including its subsidiaries, “ATG”), we treat our vendors as long-term business partners, and in that spirit, these ATG Terms clarify and govern the provision of products and services by you, to ATG. These ATG Terms supersede all prior understandings and agreements, as well as any terms on a sales or service confirmation or invoice. If you are a party to a definitive written contract ("ATG Definitive Contract") duly executed by you and authorized representatives of ATG, then the ATG Definitive Contract governs.
In these ATG Terms, we sometimes refer to "you" or "your," or "Vendor." By each reference, we mean the legal entity which houses your business, e.g. a corporation owned by you, or of which you are an employee or agent, or if you are not incorporated, you as a sole proprietor.
Your continued provision of goods and/or services (the "Deliverables"), and your acceptance of payment by ATG for Deliverables, signifies your acceptance of these ATG Terms and your representation that you have authority to bind the legal entity where you are employed or for which you act as agent or other representative.
ATG may from time to time modify these ATG Terms. When these ATG Terms are modified, the effective date will be updated to the effective date of the modification.
If you are a Vendor in Canada, please be sure to review the final page of these ATG Terms.
1.1 Vendor shall provide the Deliverables as may be requested or authorized by ATG, within Vendor’s published lead time, or if no such published lead time exists, within a reasonable time. Vendor shall perform all Deliverables in a workmanlike manner, in compliance with applicable law and regulation. Vendor agrees that time is of the essence in providing the Deliverables.
1.2 If Vendor fails to provide the Deliverables to ATG's satisfaction, including within an acceptable timeframe, then ATG may terminate the Deliverables on notice to Vendor, and Vendor shall be responsible for any costs incurred by ATG as a result of Vendor's failure to perform. As to the Deliverables, ATG reserves the rights to inspect, reject and require replacements. Risk of loss to any tangible property, such as an ATG Client vehicle for which Vendor is providing Deliverables, shall be borne by Vendor until Deliverables are complete and acceptance is confirmed by ATG or the ATG Client to Vendor.
2. Price. The price of the Deliverables billed to ATG shall be the price approved by ATG via the issuance of an ATG Purchase Order, and shall include all insurance, customs, duties, fees, and applicable taxes, including sales, use, excise, property, or value added taxes, and any other amounts required to be paid under any applicable law or regulation. Acceptance of a Purchase Order shall bind the parties to the price stated on such Purchase Order. ATG shall not be required to pay any amount invoiced by Vendor, in excess of the price on the applicable Purcahse Order. The term "Purchase Order" means (a) a writing issued by ATG or (b) the confirmation of Vendor's request for payment of specific Deliverables to ATG, made in an ATG system, in either case, accompanied by a Purchase Order number. Notwithstanding any written agreement to the contrary between the parties, risk of loss to Deliverables shipped under these ATG Terms shall pass to ATG upon ATG’s receipt and acceptance of the Deliverables, and Vendor shall bear all risk of loss or damage regarding Deliverables until ATG’s receipt and acceptance of such Deliverables in accordance with these ATG Terms.
3. Pricing is Competitive. Vendor represents, warrants and covenants that the Price of all Deliverables billed to ATG shall be competitive with the price billed by Vendor to others for substantially similar Deliverables in substantially similar quantities.
4. Payment Terms. Vendor shall issue an invoice to ATG at or promptly after delivery. Invoices shall be accurate and complete, and otherwise reasonably acceptable to ATG. Invoices issued more than 60 days after the date Deliverables are delivered, or which are not accurate or complete, shall not be paid. Unless otherwise agreed by ATG, ATG shall pay all invoiced amounts properly due to Vendor within 45 days after ATG's receipt of such invoice, except for any amounts disputed by ATG in good faith. Payments shall be in local currency of the ATG location placing the ATG Purchase Order. If ATG pays Vendor's invoice within 15 days of receipt, then ATG may deduct 2% of the total invoice amount, unless otherwise set forth on a Purchase Order.
5. Set off and Dispute Resolution. Without limiting any other rights of ATG, ATG reserves the right to set off any amount owing to ATG by Vendor against any amount payable by ATG to Vendor. Should any dispute arise, the parties shall resolve all such disputes expeditiously. Vendor shall continue performing its obligations under applicable ATG Purchase Orders, notwithstanding any such dispute. Acceptance of an ATG payment by Vendor is a waiver by Vendor of any rights and claims of Vendor related to that payment as of the date of acceptance.
6. Anti-Trust Assignment. Vendor hereby assigns to ATG all right, title and interest in and to any claim under federal or state anti-trust, unfair competition, unfair trade practices or other law or regulation, relating to Deliverables provided by Vendor. Vendor shall provide ATG with prompt notice of any such claim, and Vendor shall comply with ATG's requests for information to evaluate and pursue such claim.
7. Vendor Obligations. Vendor shall at all times comply with the following:
7.1 Licenses, Permits and Consents; Compliance with Laws. Vendor shall obtain and maintain at all times all necessary licenses and permits, and comply with all applicable laws, rules and regulations. Such laws include anti-corruption laws such as the US Foreign Corrupt Practices Act or UK Bribery Act of 2010, anti-money laundering laws such as the US Bank Secrecy Act, USA Patriot Act and requirements of the US Office of Foreign Assets Control (OFAC), laws prohibiting human trafficking, laws governing employees, employee compensation and workplace safety such as the US Immigration and Control Reform Act of 1986, US Fair Labor Standards Act and the US Occupational Health & Safety Act, and laws prohibiting discrimination such as Title VII of the US Civil Rights Act of 1964 and the US Americans with Disabilities Act of 1990, laws prohibiting unfair or deceptive trade practices such as the US Federal Trade Commission Act, and laws governing customs, export and import, such as the US Export Control Act.
7.2 US Federal Government Requirements. If and to the extent Vendor's Deliverables are provided in connection with a contract with the US Federal Government or a US Federal Government Contractor, and Federal government flow-down requirements apply, then Vendor shall comply with such requirements. Examples of such requirements include the Equal Opportunity Clause (41 CFR 60-§1.4(a)); Equal Opportunity Clause for Special Disabled Veterans, Veterans of the Vietnam Era, Recently Separated Veterans, and Other Protected Veterans (41 CFR 60-§250.5(a)); Equal Opportunity Clause for Disabled Veterans, Recently Separated Veterans, Other Protected Veterans and Armed Forces Service Medal Veterans (41 CFR §60-300.5(a)); Equal Opportunity Clause for Workers with Disabilities (41 CFR §60-741.5(a)); Employee Rights Under the National Labor Relations Act (29 CFR §471, Appendix A to Subpart A); and the Certification of Nonsegregated Facilities Clause (41 CFR § 60-1.8).
7.3 ATG Policy and Procedure. Vendor shall comply with all policies and procedures adopted by ATG from time to time, including information security and cybersecurity policies and procedures. Copies of all such policies and procedures are available from ATG on request. From time to time, ATG may develop policies and procedures designed to increase the marketability of ATG's Deliverables to ATG Clients, which may have the effect of creating additional opportunities for ATG vendors, such as Vendor. Vendor agrees to participate, if requested by ATG, in such policies and procedures, so long as ATG does not require the payment of a participation fee or membership subscription for such participation.
7.4 Accurate Books and Records; Review. Vendor shall maintain complete and accurate records relating to the Deliverables, including records of the time spent and materials used in such form as ATG shall approve, in accordance with Vendor’s document retention policy, but in any event, at least 7 years. Upon ATG's request, Vendor shall allow ATG to inspect such records and other Vendor information to confirm compliance with these ATG Terms, and Vendor shall certify as to Vendor's compliance with these ATG Terms. Vendor represents, warrants and covenants that Vendor's payment requests, and all other information provided by Vendor is true, correct and complete in all respects.
7.5 Subcontractors. Vendor may engage subcontractors, suppliers and other third parties to assist Vendor in providing the Deliverables, and Vendor shall ensure and hereby guarantees that all such third parties shall comply with these ATG Terms. Vendor shall pay all of its employees, contractors, subcontractors and suppliers the amounts due them, when due and Vendor shall defend, indemnify and hold ATG harmless from any lien or claim from such persons or entities, whether for non-payment by Vendor or otherwise.
7.6 Vendor Employees, Equipment and Property. Vendor shall ensure that all persons, whether employees, agents, or subcontractors, or others acting for or on behalf of Vendor, are properly licensed, certified or accredited as required by applicable law and are qualified to provide the Deliverables. Vendor shall ensure that all Vendor's equipment used in providing Deliverables is in good working order and complies with applicable law and regulation. Vendor shall ensure that any property of ATG, or property owned by a third party that comes into Vendor's care, custody or control through ATG, is not lost, stolen or damaged, and remains in good working order (or if brought to Vendor for maintenance, repair or overhaul, is properly maintained, repaired or overhauled to good working order and to a condition fit for the intended use of such property), normal wear and tear excepted.
7.7 Taxes. Vendor shall comply with all national, state or provincial, and local tax laws, rules and regulations, including sales and use taxes, value added taxes, gross receipts taxes, income taxes, property taxes or any other assessment or payment required by any national, state or provincial or local tax authority or other governmental agency or authority. Vendor shall timely file all returns and timely pay of all amounts due. If the discount deducted by ATG from Vendor's total invoice amount under Section 4 is held to be subject to any tax payable by ATG, ATG may deduct such tax from Vendor's invoice, and from subsequent invoices.
8. Warranties. Vendor warrants to ATG that, for a period of 12 months from completion, or longer as may be provided by Vendor or the manufacturer, the Deliverables: (i) shall be free from defects in workmanship, material and design, (ii) shall comply with all applicable laws, rules and regulations, (iii) shall be fit for their intended purpose, (iv) shall be merchantable, (v) shall be free and clear of all liens and other encumbrances, and (vi) shall be non-infringing. Vendor further warrants to ATG that, to the extent any services as provided as a part of any Deliverable, such service: (a) shall be of a professional quality, (b) shall be performed and provided by fully trained, certified, suitably qualified, capable and competent personnel, (c) shall conform to generally accepted professional practices in Vendor’s field, and (d) shall be performed in a workmanlike and ethical manner. Vendor agrees that all representations and warranties set forth in these ATG Terms are cumulative and in addition to any other warranty provided by law or equity. If ATG gives Vendor notice of noncompliance pursuant to this Section, Vendor shall, at its own cost and expense, within 30 days (A) replace or repair any defective or nonconforming goods provided as part of the Deliverables, and (B) repair or re-perform the applicable Deliverables.
9. General Indemnification. To the maximum extent permitted by law, Vendor shall defend, indemnify and hold harmless ATG (including its affiliates), the applicable ATG Client, and their respective directors, officers, employees, shareholders, agents and assigns (collectively, "Indemnitees") from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Deliverables purchased from or provided by Vendor, or any act or omission of Vendor (including any Vendor subcontractor, supplier or other third party) or Vendor's negligence, gross negligence, willful misconduct or breach of these ATG Terms. Vendor shall not enter into any settlement without ATG's prior written consent.
10. Insurance. For purposes of this Section 10 and 11 only, “ATG” refers to ATG and the Indemnitees described in Section 9, collectively. Vendor shall, at its own expense, obtain and maintain with financially sound and reputable insurers licensed to do business in the state where any Deliverables are provided, with an AM Best rating and Financial Size Category of at least "A-, VII" or better or otherwise reasonably satisfactory to ATG, the following coverages in at least the amounts stated:
10.1 Worker's Compensation. Worker's compensation coverage as required by applicable law.
10.2 Commercial General Liability. Commercial General Liability Insurance on an “occurrence” basis, including coverage for bodily injury, property damage, personal injury and advertising injury, ongoing operations, products-completed operations and liability assumed under an insured contract, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, the general aggregate limit shall be twice the required occurrence limit.
10.3 Business Automobile Liability. Business automobile liability covering hired and non-owned vehicles with limits no less than $1,000,000 combined single limit per occurrence for bodily injury and property damage.
10.4 Garage Liability. Where Vendor provides maintenance or repair services, Garage Liability insurance with limits no less than $1,000,000 per occurrence may be provided in lieu of coverages required in Sections 10.2 and 10.3, and Garagekeepers Liability insurance covering damage to property in Vendor's care, custody or control.
10.5 Employer's Liability. Employer’s liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
10.6 Umbrella / Excess Liability. Umbrella/Excess liability insurance on the above commercial general liability insurance, business automobile liability, garage liability insurance (if applicable) and employer's liability insurance with minimum limits of at least $5,000,000 per occurrence and $5,000,000 in the aggregate.
10.7 Ability to Combine Primary and Excess Coverage. The minimum limits of insurance required by this Section 10 may be satisfied by a combination of primary and excess coverage.
11. Additional Insurance Coverages. Vendor shall also obtain and maintain the following:
11.1 Professional Liability. Where Vendor provides any professional services, Vendor shall obtain and maintain Professional Liability (Errors and Omissions) Insurance written on a “claims-made” basis with a limit no less than $1,000,000 per occurrence. If, when providing Deliverables to ATG, Vendor will have access to any personal data of any ATG employees or any employees of any ATG Clients, then Vendor shall ensure that such insurance includes cyber liability and data breach coverages.
11.2 ATG as an Additional Insured. ATG and all other Indemnitees (the “ATG Parties”) shall be included as additional insureds on Vendor’s insurance policies for liability arising out of Vendor's Deliverables and any other services or work performed by Vendor and its subcontractors, both for ongoing operations and completed operations, for a period of 24 months after completion of Deliverables or other services or work. Vendor specifically assumes, and agrees that Vendor's policies shall accept tort liability of the ATG Parties, including liability caused by the negligence of any of the ATG Parties, even where solely negligent.
11.3 Vendor Coverage is Primary; Certificates of Insurance. Vendor's additional insured coverage shall be primary and non-contributory, irrespective of any other insurance or self-insurance programs that may be carried by ATG or any other Indemnitee. When requested, Vendor shall provide ATG with an insurance certificate evidencing all required insurance coverages, in a form reasonably acceptable to ATG. Such insurance certificates shall identify any applicable self-insured retentions or deductibles, which shall be the sole responsibility of Vendor. The insurance certificates shall provide that ATG shall receive at least 30 days' prior written notice of any cancellation or amendment of any insurance required by this Section. Vendor shall also provide copies of written endorsements that identify ATG, its affiliates and their directors, officers, employees, shareholders, agents and assigns as additional insureds for each of the insurance policies procured pursuant to this Section.
11.4 Coverage Required is Not Limiting. Vendor agrees that the insurance required by these ATG Terms does not limit Vendor’s liability to ATG under these ATG Terms, including Vendor's duty to defend, indemnify and hold ATG and the other Indemnitees harmless. If Vendor maintains higher limits than the minimums shown above, ATG shall be entitled to coverage for the higher limits maintained by Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Vendor.
11.5 Failure to Maintain Coverage. Vendor's failure, for any reason, to maintain any of the insurance coverages required by these ATG Terms is a material breach of contract. ATG, at its sole option, may terminate all ATG Purchase Orders and obtain damages from Vendor resulting from said breach. Alternatively, ATG may purchase such required insurance coverage, and without further notice to Vendor, ATG may deduct from sums due to Vendor any premium costs advanced by ATG for such insurance.
11.6 Subrogation Waived. Vendor shall require its insurer to waive all rights of subrogation against ATG and ATG's insurers.
11.7 Electronic Collection of Insurance Certificates. Should ATG institute a process for the electronic collection, by ATG or its designated third party provider, of insurance certificates from suppliers, Vendor shall comply with ATG's instructions and adopt such process, at Vendor's cost.
12. Termination. If Vendor has not complied with any of these ATG Terms, in whole or in part, in addition to any other remedies of ATG under these ATG Terms, ATG may terminate all ATG Purchase Orders with immediate effect upon written notice to Vendor, either before or after Vendor's delivery of the Deliverables. During the time period beginning upon the issuance of a Purchase Order, and delivery, ATG may cancel a Purchase Order, at will and for convenience, with notice to Vendor. In the event of such cancellation by ATG prior to delivery, Vendor and ATG shall work together in good faith to determine reasonable compensation owed to Vendor due to such cancellation. Notwithstanding the foregoing, if Vendor does not deliver or perform within a period of time equivalent to twice the published lead time or delivery date set forth on a Purcahse Order, ATG may cancel such Purchase Order. For example, if the delivery date for a Deliverable is 3 weeks, and Vendor has not delivered after 6 weeks from the initial Purchase Order, ATG may terminate such Purchase Order at will, with no expense owed to Vendor. Further, if Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then ATG may terminate all ATG Purchase Orders upon written notice to Vendor. If ATG terminates any or all ATG Purchase Orders for any reason, Vendor's sole and exclusive remedy is payment for the Deliverables accepted by ATG prior to the termination. In no event shall any expiration or termination of any ATG Purchase Orders excuse either party from any breach or violation of these ATG Terms and full legal and equitable remedies shall remain available therefor, nor shall it excuse either party from making any payment due under ATG Purchase Orders completed prior to the date of termination. Sections 10, 11, 12, 13, 16, 19 and 20 shall survive any termination of these ATG Terms, the completion of any Purchase Order, or any payment therefor.
13. Waiver. No waiver by ATG of any of the provisions of these ATG Terms is effective unless explicitly set forth in writing and signed by a duly authorized officer of ATG. No failure by ATG to exercise, or delay in exercising, any right, remedy, power or privilege arising from these ATG Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. Confidential Information. All non-public information of ATG, including specifications, samples, designs, plans, drawings, documents, business operations, customer or supplier lists, pricing, discounts or rebates and other data disclosed by or on behalf of ATG to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is and shall be and remain confidential and proprietary information of ATG, shall be used by Vendor solely for the purpose of performing Vendor's obligations under these ATG Terms, and may not be disclosed to any third party without ATG's prior written consent. Upon ATG's request, Vendor shall promptly return all documents and other materials received from ATG. ATG shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Vendor at the time of disclosure and not subject to a confidentiality undertaking; or (c) rightfully obtained by Vendor on a non-confidential basis from a third party. Vendor specifically agrees that all data compiled or reported by Vendor related to Deliverables or any other work performed by ATG shall be owned exclusively by ATG.
15. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under these ATG Terms to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (each, a "Force Majeure Event"). Force Majeure Events include acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, terrorist acts, riots, strike, embargoes or industrial disturbances. Vendor's economic hardship or changes in market conditions are not Force Majeure Events. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under these ATG Terms. If a Force Majeure Event prevents Vendor from performing under these ATG Terms for a period of more than 30 days, ATG may terminate any pending ATG Purchase Orders immediately by written notice to Vendor.
16. Assignment and Amendment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under these ATG Terms without the prior written consent of ATG. Any purported assignment, transfer or delegation in violation of this Section shall be null and void. ATG may at any time assign or transfer any or all of its rights or obligations under these ATG Terms without Vendor's prior written consent to any affiliate. These ATG Terms may only be amended or modified in a writing executed by ATG, or emailed by ATG to Vendor at Vendor's email address as permitted by Section 21.
17. Relationship of the Parties. The parties are independent contractors. Nothing in these ATG Terms creates any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has authority to bind the other party in any manner whatsoever. These ATG Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns, provided that the General Indemnification is also for the benefit of the Indemnitees.
18. Governing Law. These ATG Terms are governed by the internal laws of the State of New Jersey, without regard to its choice of laws rules. The UN Convention on the International Sale of Goods is expressly excluded. Any litigation relating to these ATG Terms or any Deliverables shall be commenced and maintained in the US District Court, District of New Jersey, sitting in Camden, New Jersey, or if jurisdiction is lacking, in New Jersey state court, sitting in Burlington County, New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party waives the right to a jury trial. Vendor expressly waives any objection to personal jurisdiction or venue.
19. Notices. All notices and other communications hereunder (each, a "Notice") shall be in writing and if to ATG, shall be addressed to 1420 Brewster Creek Blvd. Bartlett, IL 60103, Attention: Accounts Payable, or if to Vendor, to Vendor's address of record in ATG’s systems, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by hand or nationally recognized overnight courier, facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, first class postage prepaid). ATG may give notice to Vendor at Vendor's email address on ATG's systems. Except as otherwise provided in these ATG Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with this Section.
20. Severability. If any term or provision of these ATG Terms should be found to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these ATG Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Meanings. The words "include" or "including", when used in these ATG Terms, mean "include but are not limited to" and "including but not limited to."
24. Conflicts. Absent an ATG Definitive Contract, these ATG Terms govern the relationship of Vendor and ATG, as to all Deliverables. All conflicting or additional terms in any invoice, confirmation or other writing are expressly superseded.
CANADIAN RIDER TO
General Terms and Conditions ("ATG Terms")
EFFECTIVE: July 26, 2019
For Vendors in Canada, the above ATG Terms shall apply with the following adjustments, commencing on July 19, 2019:
The last sentene of Section 4 is hereby deleted in its entirety and replaced with the following:
If ATG pays Vendor's invoice within 15 days of receipt, then ATG may charge a fee of 2% of the total invoice amount, plus applicable taxes, e.g. GST / HST and any provincial sales tax.
Section 7.1 of the ATG Terms is hereby deleted in its entirety and replaced with the following:
7.1 Licenses, Permits and Consents; Compliance with Laws. Vendor shall obtain and maintain at all times all necessary licenses and permits, and comply with all applicable federal, provincial, territorial and local laws, rules and regulations. Without limiting the generality of the foregoing, such laws include anti-corruption laws such as the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws such as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), laws prohibiting human traffiking, laws governing employees, employee compensation and workplace safety including all applicable provincial or territorial employment standards, workers' compensation and occupational health and safety legislation, laws prohibiting discrimination such as the Canadian Human Rights Act (Canada) and all applicable provincial or territorial human rights legislation, any applicable provincial and territorial laws prohibiting unfair or deceptive trade practices, and laws governing customs, export and import, such as the Customs Act (Canada).
The first paragraph of Section 11 of the ATG Terms is hereby deleted in its entirety and replaced with the following:
11. Insurance. Vendors shall, as its own expense, obtain and maintain the following coverages in at least the amounts stated with a company (i) approved by ATG; (ii) licensed to do business in the province or territory where any Deliverables are provided; and (iii) ordinarily engaged in the business of insuring against the risks described herein: