Terms and Conditions
These terms and conditions ("Terms and Conditions") apply to (a) any purchase order ("PO") issued by UP under any agreement ("Agreement") or Letter of Intent ("LOI"), in either case whether or not in the form of a letter or otherwise, between Seller and UP, (b) any Agreement, and/or (c) any LOI. Acceptance by Seller of any Agreement, LOI, and/or any PO shall be on, and is expressly limited to, these Terms and Conditions. Seller shall not ship any materials and/or goods (collectively, "Products") under reservation. No modification of these Terms and Conditions or any claimed waiver of any provision hereof shall be binding unless signed in writing by UP. The terms and conditions of the Agreement or LOI, as applicable, shall control in the event of any direct conflict between them and these Terms and Conditions.
By accepting these Terms and Conditions Seller agrees that (a) UP will be given the benefit of any downward revision of price in the Products or similar goods that occurs before the date specified for delivery and (b) under no circumstance is UP to be charged at a higher price than provided for in the Agreement, the LOI, and/or the PO without UP's written consent. UP shall have the right to withhold monies payable by it hereunder and apply them to the payment of any obligation of Seller to UP or any other party arising in any manner out of the Agreement, the LOI, and/or the PO. If lower prices are available due to standard packages or quantity discounts or if the Products are subject to a minimum charge that has not been met, shipment must be withheld and UP advised. The cost to UP of the Products shall not include any amount, nor shall it contemplate the payment of any amount, to cover royalties on behalf of any employees of UP.
3. Termination at UP's Option
The PO may be terminated by UP at any time prior to shipment of the Products.
4. Freight Charges: Shipping and Routing Instructions; Delivery
The terms and conditions set forth in our Routing Instructions shall apply to freight charges for the Products, shipping and routing instructions for the Products, and delivery of the Products.
All invoices must be submitted electronically via EDI and utilizing rail industry guidelines. Invoices must match the PO exactly, and shall include Order Number, Item Number and name and address of consignee. The same information must be shown on all shipping, delivery and other documents related to the PO. Brand, quality, number or other trade designation, etc., should be specified on the invoice for all Products furnished. To avoid payment delay, Order Number and UP item number must be referenced on any correspondence. A Detailed Shipping Notice should be mailed to consignee and to the signer of the PO for UP as soon as material or equipment is placed in transit. Each invoice must be rendered against UP with receipted Bill of Lading, express receipt or receipted delivery ticket attached, and indicating whether shipment is by Parcel Post or UPS. Invoices must be submitted to Accounts Payable electronically via an EDI 810 transaction utilizing rail industry guidelines or via Union Pacific's authorized web application. Invoice must match the purchase order exactly. Paper invoices are not accepted. Please review our additional information regarding the invoice submittal process.
Invoices should be prepared in complete detail including Item Number. A separate invoice should be rendered for each order. One invoice should be made if the PO is completed in one shipment. If partial shipments are made under the PO, a separate invoice must be rendered for each shipment or delivery when made. The invoice payment and/or cash discount periods will date from the receipt of a properly prepared invoice by UP's Accounts Payable Department, not from the invoice date. Invoice will pay according to terms on the purchase order. If no terms are provided, terms of net 30 will be used.
- Submit Invoice Status and Payment Inquiries online or via telephone at (402) 544-2729.
- A completed vendor validation form must be provided to Union Pacific Railroad by all new vendors prior to payment release.
Payment of Seller's invoice does not constitute final acceptance of the Products or associated services.
6. Risk of Loss
Risk of loss of the Products shall be borne by Seller until the Products are delivered at the F.O.B. point specified in the PO or, if no F.O.B. point is specified therein, until
- UP accepts the Products at the nearest UP interchange point if the Products are delivered by rail, or
- UP accepts the Products at the UP facility or location to which they are to be delivered if the Products are delivered other than by rail;
Provided, however, that IF THE PRODUCTS ARE EXPLOSIVE, FLAMMABLE, TOXIC, HAZARDOUS, OR CAUSE PROPERTY DAMAGE (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL CLAIMS) OR PERSONAL INJURY, SELLER SHALL DEFEND, INDEMNIFY, AND HOLD UP HARMLESS FROM AND AGAINST ALL CLAIMS ASSERTED AGAINST UP THAT ARISE OUT OF ANY PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY THE PRODUCTS OR BY THE TRANSPORTATION THEREOF PRIOR TO THE TIME UP ACCEPTS THEM.
UP or its duly authorized representative shall have the right to test and inspect all Products before accepting their delivery or paying for them. Products not in accordance with specifications will be rejected and held subject to Seller's order. Seller must pay all expenses, including freight both ways, on rejected Products.
Seller warrants that all the Products and services when delivered pursuant to the Agreement, the LOI, and/or the PO
- are free from any claim of infringement of third party intellectual property rights or other infringement claims,
- will be merchantable and free from defects in workmanship or material, and
- will conform strictly to the applicable specifications, drawings or samples.
Seller warrants that the Products will not materially fail to operate according to their specifications within the normal operating life of such Products. This warranty is in addition to any and all other product warranties and repreentations set forth with respect to such products and services and shall supersede any disclaimer or notice that attempts to limit such warranty. The Seller, for itself and its successors and assigns, agrees to defend, indemnify and save harmless UP and its successors, lessees and assigns from an against any and all damages, claims, suits, judgments, costs and expenses whatsoever by reason of infringement or alleged infringement of intellectual property rights including, without limitation, patents, and against claims for patent royalties, involved as a consequence of the purchase or use of the products. If this warranty fails of its essential purpose, UP shall be entitled to any other remedies provided for by the Uniform Commercial Code of the State of Nebraska ("UCC").
If any portion of the Products are incomplete or defective, or fail to satisfy any product description, specifications, performance requirements or warranties, UP shall have the right at its option
- to return such Products to Seller, at Seller's risk, and Seller shall return the purchase price for such Products if previously paid, or
- to cause Seller to pay UP promptly for expenses incurred in remedying the defective or nonconforming Products (including, without limitation, the purchase of substitute (or functionally equivalent) products), or
- to cause Seller, at Seller's expense, to expeditiously replace, upgrade or repair any defective or rejected Products.
If the option set forth in (a) is exercised, UP may, in its discretion, reduce the Product quantity specified in the PO by the number of Products returned. All packing, handling, and transportation expenses associated with the return of defective Products and the delivery of replacement Products shall be allocated as follows:
- If the defective Product is returned individually or as one of a relatively limited number of Products returned under the warranty provisions of Section 8 above (e.g., not returned as part of a recall), UP shall pay all packing, handling, and transportation expenses (but no restocking charges or fees) for its return and Seller shall pay all packing, handling, and transportation expenses for the delivery of the repaired or replacement Product;
- if the defective Product is returned along with all Products purchased by UP or with all of a particular group or batch of Products (e.g., returned as part of a recall), Seller shall pay all packing, handling, and transportation expenses for the return of the Product by UP and for the delivery of the repaired or replacement Product.
The remedies set forth herein are in addition to any other remedy provided by the UCC or any written agreement between UP and Seller, by law or in equity. IN NO EVENT SHALL UP BE LIABLE
- FOR ANY AMOUNT EXCEEDING THE AGGREGATE PURCHASE PRICE SPECIFIED IN THE AGREEMENT, THE LOI, AND/OR THE PO, OR
- WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THE AGREEMENT, THE LOI, AND/OR THE PO.
10. Repair Right
UP shall have the right to repair patented devices, and repair parts may be made by or for UP or purchased in the open market as UP may determine. If the PO relates to rolling stock or equipment subject to customary interchange, the rolling stock or equipment being purchased by UP may be repaired by other roads no matter where the repair parts are obtained, and UP shall have the same right to repair foreign rolling stock or equipment under such interchange. UP, or any other railroad to whom the Products are interchanged, shall have the same right to purchase repair parts in anticipation of breakage, instead of waiting until the breakage actually occurs before ordering the repair parts. The protection accorded the Buyer under these Terms and Conditions with respect to infringement or alleged infringement of intellectual property rights including, without limitation, patents and claims for patent royalties, is extended so as to afford like protection to UP in connection with repairs and repair parts contemplated by this section.
Seller shall defend, indemnify UP and any party who sells or uses any of UP 's products or services that utilize the products or services purchased under the agreement, the LOI, and/or the PO, and hold each of them harmless against all losses, liabilities, damages, costs, and expenses, including without limitation, attorneys' fees, arising from
- Actual or alleged infringement of any patent, copyright, trade secret or other proprietary right by any of the products or services delivered hereunder or their use;
- Claims of injury or death to person or damage to property (including, without limitation, environmental claims) suffered or claimed to have been suffered by any entity or person caused by, or alleged to have been caused by, defective products or by any act or omission, negligent or otherwise, of seller or any of its subcontractors or any of their employees, workmen, servants, or agents;
- Labor or material liens rising out of or on account of the products or their use or of any work performed by seller or any of its subcontractors;
- Claims by any third party for any fee or compensation for services performed or allegedly performed for or on behalf of seller in connection with the agreement, the LOI, and/or the PO; and
- Fines and civil or criminal penalties arising out of the manufacture or delivery or performance by seller of the products or services hereunder.
UP's or any other third party's negligence or misconduct shall not mitigate or otherwise invalidate seller's liability under this section. Promptly on UP 's request, seller shall accept the defense of any claim for which UP is indemnified hereunder (subject to UP 's concurrence in seller's choice of counsel), pay all such losses, liabilities, damages, costs and expenses, including, without limitation, reasonable attorneys' fees for any claim, demand, suit, action, proceeding, litigation or settlement relating thereto.
12. On-Site Work
Should it become necessary for Seller or its employees or agents to enter upon the premises or property of UP in order to construct, erect, inspect, deliver, repair or provide other services as required by the Agreement, the LOI, and/or the PO, Seller shall be responsible for and shall reimburse up for any damage to UP's property, or to the property of others, and shall indemnify, save harmless and assume the cost of defense of UP from and against any loss, damage, expense, injury or liability for death of or injury to or damage to the property of any person or from liens, fines or penalties of any person, or taxes or assessments of any kind, resulting in any manner from any act or omission of seller or its agents or employees, on or about UP's premises or property, or in connection with any activities of seller pursuant to the agreement, the LOI, and/or the PO.
13. Assignment and Subcontracting
Seller shall not delegate any duty under or assign the Agreement, the LOI, and/or the PO in whole or in part, make any subcontract for furnishing the Products, or assign any claim arising or sum payable with respect thereto without the prior written consent of UP. Any attempted delegation, subcontract or assignment shall be void.
14. Compliance with Law; Clauses Incorporated by Reference
In the performance of services hereunder, Seller and its subcontractors shall comply with all applicable federal, state and local laws and rules and regulations and shall furnish evidence of such compliance as requested by UP. In connection with the performance of the Agreement and/or the PO, THE EEO CLAUSE AS SET FORTH IN SECTION 202 OF EXECUTIVE ORDER 11246, as amended; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, as amended; THE VIETNAM ERA VETERANS READJUSTMENT ASSISTANCE ACT OF 1974, as amended; Section 503 OF THE REHABILITATION ACT OF 1973, as amended; THE VETS-100 REPORTING CLAUSE AS SET FORTH IN 38USC2012(d); Public Law 99-662, Section 202(a) of the Water Resources Development Act of 1986, and all other applicable federal, state and local laws and regulatory authority of like nature and effect, are hereby incorporated by reference. The Products shall conform to the standards or requirements, if any, established under the Occupational Safety and Health Act of 1970 and any regulations issued there under, including any amendments thereto effective on the date of the Agreement and/or the PO, whichever is later. Seller hereby certifies that no director, manager, purchasing or selling officer, or any person having a substantial interest in Seller and/or controlling Seller is at the same time a director, manager, selling or purchasing agent of UP in this particular transaction. Pursuant to Occupational Health and Safety Administration regulations regarding hazard communication (29 CFR Part 1910.1200) each container of Products constituting hazardous chemicals, as defined by such regulations, must be labeled with:
- identification of the hazardous chemical(s);
- appropriate hazard warnings, including health effects; and
- the name and address of chemical manufacturer, importer or other responsible party.
UP agrees to comply with the provisions of 29 CFR Part 470, if applicable.
15. Purchase Order Tax Exemption Codes
Sales tax on all products (except fuel) purchased by PO will be self-assessed in the following states that have issued direct pay permits. Seller should NOT charge sales tax on these purchases delivered to:
- *Arkansas (76-2415)
- **California (SZ OHA 98-014134 DP)
- Idaho (802537-S)
- **Illinois - UPRR (1279-6433)
- **Illinois - Alton & Southern (0110-1031)
- Iowa (0-00-908372)
- **Kansas (115 C 151)
- Louisiana (6017578-002)
- Minnesota (1119)
- **Missouri (11291460)
- Nebraska - UPRR(04-7964390)
- Nebraska - UP Fruit Express (1-3292029-1)
- Nevada (102415)
- Texas (1-94-6001323-8)
- Washington (J 409 001 073)
- Wisconsin (WDP 96-01-01024)
- Wyoming (27-0-00004)
*Only out-of-state vendors making deliveries to the UP Materials Distribution Center in Arkansas are relieved from collecting Arkansas Sales Tax. In-state purchases are subject to sales tax.
**Direct pay authorization does not apply to in-state purchases subject to sales tax.
For the following states, UP has no basis for issuing direct payment certificates. However, if vendors do not charge sales tax on invoices, UP reports and pays tax under the following account numbers:
- Arizona (07-009064-Y)
- Colorado (80-2471)
- New Mexico (01060337009)
- Tennessee (102806555)
- Utah (89046)
Usage of trade, course of performance, and course of dealing shall not supplement or modify the written terms of the Agreement, the LOI, and/or the PO. UP's
- failure to insist on strict performance of any term or condition of the Agreement, the LOI, the PO, and/or these Terms and Conditions,
- failure or delay to exercise any right or remedy provided therein or herein or by law or to properly notify Seller in the event of breach,
- acceptance of or payment for Products under the Agreement, the PO, and/or these Terms and Conditions or
- approval of any design, shall not release Seller from any of its warranties or obligations and shall not be deemed a waiver of any right of UP to insist upon strict performance of such warranties or obligations or of any of its rights or remedies as to any prior or subsequent default, nor shall any purported oral modification or rescission by UP operate as a waiver of any term or condition hereof.
Nothing in the Agreement, the LOI, the PO, and/or any acceptance hereof shall constitute Seller or any of its officers, directors, or employee's being appointed UP's agent, legal representative or employee. The Agreement, the LOI, the PO, and these Terms and Conditions shall be construed and governed by the laws of the State of Nebraska, without regard to its conflict of laws principles and any lawsuit arising out of or in connection with the Agreement, the LOI, the PO, and/or these Terms and Conditions shall be filed solely in a court of competent jurisdiction in the State of Nebraska. For purposes of these Terms and Conditions, "UP" refers to Union Pacific Railroad Company and its subsidiaries and affiliates. These Terms and Conditions shall inure to the benefit of and be binding upon the principals, agents, personal representatives, successors and permitted assigns of the Seller and the agents, successors and assigns of UP.
17. Electronic Signatures
Seller and UP agree to use digital signatures for the execution of the PO. The parties acknowledge and agree that such digital signatures shall have the same legal effect as a written signature. Seller shall be solely responsible for ensuring that an authorized representative of Seller signs the applicable PO(s) utilizing a digital signature. Seller agrees not to contest the validity or enforceability of any signature on such PO.
18. Minimum Safety Requirements
(Last Updated: 4/19/2013)
The Union Pacific Railroad is committed to providing the safest workplace possible for, not only our own employees, but also the Contractor employees. Adherence to these minimum safety requirements, plus additional instructions at the job site, will help to ensure an injury-free project. The railroad employee in charge is authorized to take any actions necessary to prevent injuries to any person, damage to railroad property, disruption of railroad operation, and the safety of the public. Minimum Safety Requirements for UPRR Contractors
For the safety of your employees and ours, Union Pacific Railroad mandates the use of only non metallic banding on material shipments / packaging to our operations. Only those suppliers with written approval from Union Pacific's Director of Strategic Sourcing may ship products with metal banding. The American Association of Railroads (AAR) website (follow the technical standards route, AAR Approved Securement Bands and Strapping ) offers a number of non-metallic options to ensure compliance.
19. CONTRACTOR’S BOOKS AND RECORDS - AUDITING
Seller agrees that it will maintain comprehensive records of its employees, its equipment and the work performed pursuant to any PO, Agreement or LOI. Seller will keep these records available for inspection by UP’s auditors or its authorized representatives for a period of three (3) years following completion of the work or expiration or termination howsoever of the PO, Agreement or LOI.
At any time during the three year period, during which the records are maintained by Seller, UP or its authorized representatives shall have the right to audit Seller’s records to determine the accuracy of bills submitted by Seller. Seller agrees to reimburse UP for amounts billed to UP that are not supported by the records maintained by Seller.