Terms and Conditions

Each supplier (“Supplier”) of materials and/or goods and services to Union Pacific Railroad Company (together with its subsidiaries and affiliates, “UPRR”) is required to accept the following Supplier Terms and Conditions (“Terms and Conditions”).  These Terms and Conditions set forth general terms applicable to each Supplier’s provision of materials and/or goods (collectively, “Products”) and services, including any deliverables provided in connection with such services, (collectively, the “Services”) to UPRR (Sections 1 through 16); terms applicable to the supply of Products (Section 17); and terms applicable to the provision of Services (Section 18).

 

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.  YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREED ON BEHALF OF YOURSELF AND SUPPLIER TO BE BOUND BY TO THESE TERMS AND CONDITIONS.  IF YOU ENTER INTO THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.

1. Order for Products and Services

These Terms and Conditions apply to: (i) any purchase or service order issued by UPRR that reference these Terms and Conditions (each, a “PO”); and (ii) any agreement or letter of intent executed by UPRR that reference these Terms and Conditions (an “Agreement”).    Each Supplier who sells Products and/or who performs the Services described in such PO or Agreement represents, warrants and covenants that it shall have accepted and agreed to these Terms and Conditions upon (1) its execution of an Agreement; (2)  the date the Services are first provided; or (3) the date the Products are first shipped, whichever is earliest (“Effective Date”).  Any Supplier proposal for additional terms or any modification of these Terms and Conditions or any claimed waiver of any provision hereof, whether in Supplier’s acceptance document(s), invoices, bills of lading, proposals or other documents, is hereby rejected, and no such proposal, modification or waiver shall be binding unless signed in writing by a UPRR manager or supervisor with such explicit authority to make such changes.  The terms and conditions of any written Agreement shall control in the event of any direct conflict between such Agreement and these Terms and Conditions.  In such case the remaining provisions of the Agreement and Terms and Conditions (as the case may be) shall remain in full force and effect. UPRR may reduce the scope of work in a PO and/or Agreement at any time upon written notice to Supplier and the parties may agree in writing to otherwise amend or enlarge the scope of work in any PO and/or Agreement. As used in these Terms and Conditions, “Product” shall include, but shall not be limited to, any and all instructions, warnings, components, modules, parts, assemblies and sub-assemblies, mechanisms and raw or finished Products which are incorporated into and made a part of the overall Product. 

2. Price

(a)        By accepting these Terms and Conditions, Supplier agrees that (i) UPRR will be given the benefit of any downward revision of price for the Products (or similar goods) and/or Services (or similar services) that occurs prior to the Order Due Date (defined in Section 17(c)) of the Products and/or the commencement of Services and (ii) Supplier shall, under no circumstance, charge UPRR any higher price for any Services or Products than the price payable by UPRR for any Products or Services (the “Price”) provided for in the Agreement and/or the PO without UPRR’s prior written consent.  Supplier shall promptly, and in any case prior to shipment of applicable Products, notify UPRR 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.  The Price shall not include any amount, nor shall it contemplate the payment of any amount, to cover royalties on behalf of any employees of UPRR.

(b)        UPRR shall have the right to withhold monies payable by it hereunder and apply them to the payment of any obligations of Supplier to UPRR or any other party arising in any manner out of the PO and/or the Agreement.

3. Billing; Acceptance

(a)        Upon proper delivery of Products or the performance of Services under any single PO or Agreement, Supplier shall submit a proper, complete and accurate invoice to UPRR, together will reasonable supporting documentation described herein or otherwise requested by UPRR (an “Invoice”), setting forth the payment due from UPRR to Supplier.  UPRR reserves the right to dispute any Invoice and will not be considered in breach of these Terms and Conditions or the Agreement as a result of UPRR’s good faith dispute of any Invoice. 

(b)        Payment of Invoice(s) does not constitute acceptance of the Products and/or Services or associated services, goods or equipment.  UPRR shall have the right to inspect Products and/or completed Services and reject non‑conforming Services and/or Products.  Acceptance of the Products and/or Services (“Acceptance”) will occur when UPRR shall have notified Supplier of its determination (i) that the Products and/or Services are satisfactory to UPRR and conform to UPRR’s specifications including, without limitation, those set forth in the PO or Agreement; or (ii) to accept the Services and/or Products as non-conforming.

 (c)       Supplier will consult the instructions set forth in UPRR Sales Tax Direct Pay Permits in regards to billing sales tax to UPRR’s purchase of Products and/or Services here under. 

4. Statement of Business and Legal Relationships

Prior to commencement of Services or delivery of Products, and as a condition to payment hereunder, Supplier must remit a completed Statement of Business and Legal Relationships Form (“Statement”) to UPRR.  Supplier represents to UPRR that the representations and certifications therein are true and accurate and said Statement is incorporated in the Agreement or PO.  The Supplier acknowledges the materiality of the representations and certifications in the Statement.  The Statement and instructions can be obtained here

5. Insurance Requirements

Supplier shall, at its sole cost and expense, procure and maintain during the life of any PO or Agreement insurance coverage in amounts in accordance with UPRR’s Standard Insurance Requirements.

6. Indemnity

(a)        Except to the extent that Claims, as defined below, are caused by the gross negligence or intentional misconduct of UPRR, Supplier shall indemnify, defend and hold harmless UPRR, its directors, officers, agents, employees, representatives, subsidiaries, and affiliates (“UPRR Indemnified Parties”) on an after‑tax basis from and against any and all actions, suits, fines, judgments, awards, claims, decrees, demands, liabilities, deficiencies, settlements, losses (including, without limitation, losses or damage to property belonging to any person), damages, injuries (including, without limitation, injury or death to all persons, including UPRR’s and Supplier’s officers and employees), costs and expenses (including, without limitation, attorney’s fees and costs) of any and every kind and nature whatsoever (including environmental claims) (each a “Claim”) that are imposed on, incurred by, suffered by or asserted against a UPRR Indemnified Party arising out of or related to, or in connection with, (i) any defective Products and/or Services; (ii) any negligent act or omission of Supplier; (iii) any lien or similar encumbrance on any UPRR property arising out of or related to any Products and/or Services or UPRR’s use thereof; (iv) the breach by Supplier or any of its employees, subcontractors, agents or invitees of any representation, warranty, covenant or provision of these Terms and Conditions and/or any Agreement, including, but not limited to, Claims asserted by any employee of Supplier; (v) 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 Services or by any act or omission, negligent or otherwise, of Supplier or any of its subcontractors or any of their employees, workmen, servants, or agents; (vi) any actual or alleged infringement of any patent, copyright, trade secret or other proprietary right by any of the Products and/or Services delivered or performed hereunder or UPRR’s use thereof; (vii) any claims by any third party for any fee or compensation for services performed or allegedly performed for or on behalf of Supplier in connection with these Terms and Conditions  or any Agreement; and (viii) fines and civil or criminal penalties arising out of the manufacture, delivery and/or performance by Supplier of the Products and/or Services hereunder.  

 

(b)        Without limiting any rights or remedies available to UPRR, Supplier acknowledges that if the use of the Services and/or Products by UPRR is interrupted or enjoined as a result of any actual or threatened infringement Claim, Supplier shall, at UPRR’s option, either (i) promptly secure, at Supplier’s sole expense, a license authorizing the continued use of the affected Products and/or Services; (ii) without compromising the requirements of UPRR’s applicable specifications and at Supplier’s sole expense, promptly replace the infringing portion of the Products and/or Services with non‑infringing components or otherwise modify the Products and/or Services such that they do not infringe; or (iii) terminate the applicable PO and/or Agreement and refund all amounts paid by UPRR for the infringing or alleged to be infringing Products and/or Services. 

7. Limitation of Liability

UNDER NO CIRCUMSTANCES IS RAILROAD LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER DAMAGES WERE FORESEEABLE OR WHETHER THE RAILROAD HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

8. Assignment and Subcontracting

Supplier shall not delegate any duty under, subcontract or assign a PO, in whole or in part, or assign any claim arising or sum payable pursuant to a PO without the written consent of UPRR.  Any attempted delegation, subcontracting, or assignment shall be void.  Supplier expressly assumes all liability and responsibility for such subcontractors’ and third parties’ compliance with, or breach of, these Terms and Conditions and/or any PO.  

9. Compliance with Law; Clauses Incorporated by Reference

(a)        Supplier (including its employees, workers, subcontractors and agents) shall comply in all respects with these Term and Conditions  or Agreement, and all federal, state and local laws, rules, regulations, orders, codes and ordinances applicable to the Supplier, the Products, or the Services, including environmental laws (if applicable) that are in effect at the time of the Effective Date, including, without limitation, the Federal Railroad Administration’s Roadway Worker Protection regulation the employee right‑to‑know requirement of 29 CFR Part 1910 and 1926 (“Applicable Law”).

(b)        Supplier hereby certifies that no director, manager, purchasing or selling officer, or any person having a substantial interest in Supplier and/or controlling Supplier is at the same time a director, manager, selling or purchasing agent of UPRR in this particular transaction. 

(c)        UNION PACIFIC IS AN EQUAL OPPORTUNITY EMPLOYER AND FEDERAL CONTRACTOR OR SUBCONTRACTOR. CONSEQUENTLY, THE PARTIES AGREE THAT, AS APPLICABLE THEY WILL ABIDE BY THE REQUIREMENTS OF 41 CFR 60-1.4(A), 41 CFR 60-300.5(A) AND 41 CFR 60-741.5(A) AND THAT THESE LAWS ARE INCORPORATED HEREIN BY REFERENCE.  THESE REGULATIONS PROHIBIT DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS BASED ON THEIR STATUS AS PROTECTED VETERENS OR INDIVIDUALS WITH DISABILITIES, AND PROHIBIT DISCRIMINATION AGAINST ALL INDIVIDUALS BASED ON THEIR RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, OR NATIONAL ORIGIN. THESE REGULATIONS REQUIRE THAT COVERED PRIME CONTRACTORS AND SUBCONTRACTORS TAKE AFFIRMATIVE ACTION TO EMPLOY AND ADVANCE IN EMPLOYMENT INDIVIDUALS WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, OR NATIONAL ORIGIN, PROTECTED VETERAN STATUS OR DISABILITY. THE PARTIES ALSO AGREE THAT, AS APPLICABLE, THEY WILL ABIDE BY THE REQUIREMENTS OF EXECUTIVE ORDER 13496 (29 CFR PART 471, APPENDIX A TO SUBPART A), RELATING TO THE NOTICE OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS.

(d)       Supplier hereby certifies that the Products and/or Services shall conform to the standards or requirements, if any, established under Applicable Law, including the Occupational Safety and Health Act of 1970 and any regulations issued thereunder and any amendments thereto effective on the date of the Agreement and/or the PO, whichever is later.  Without limiting generality of the foregoing, 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: (a) identification of the hazardous chemical(s); (b) appropriate hazard warnings, including health effects; and (c) the name and address of chemical manufacturer, importer or other responsible party.

10. Liens

Supplier shall timely pay in full all persons who perform labor upon or provide services or materials in connection with the Services and/or Products.  Supplier shall not create, permit or suffer any mechanic’s or material men’s liens of any kind or nature to be created or enforced against any property of the UPRR for any such work performed or any Services or Products provided. 

11. No Waiver; No Agency

Usage of trade, course of performance, and course of dealing shall not supplement or modify the written terms of these Terms and Conditions, an Agreement and/or any PO. UPRR’s (i) failure to insist on strict performance of any term or condition (ii) failure or delay to exercise any right or remedy  (iii) acceptance of or payment for Services or Products under any Agreement, any PO, and/or these Terms and Conditions or (iv) approval of any design, shall not release Supplier from any of its warranties or obligations and shall not be deemed a waiver of any right of UPRR 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 UPRR operate as a waiver of any term or condition hereof.  Supplier and its agents, workers, subcontractors and employees are not and shall not be considered agents or employees of UPRR and shall have no authority to enter into contracts or incur any other obligation on behalf of or in the name of UPRR.  Supplier shall be and remain an independent contractor, and nothing herein contained shall be construed as inconsistent with that status.  Supplier shall have the exclusive right and duty to control the work concerning the Products and/or Services.  All persons employed by Supplier or any of its subcontractors in the performance of these Terms and Conditions or any related Agreement or PO shall be the sole employees of Supplier or its subcontractors.

12. Electronic Signatures

Supplier and UPRR agree to use digital signatures for the execution of an Agreement.  The parties acknowledge and agree that such digital signatures shall have the same legal effect as a written signature.  Supplier shall be solely responsible for ensuring that an authorized representative of Supplier signs all Agreement(s) utilizing a digital signature.  Supplier agrees not to contest the validity or enforceability of any signature (electronic or otherwise) on such Agreement.  Digitally signed Agreement(s), are regarded as an original instrument by the parties. 

13. Confidentiality

Confidential Informationmeans nonpublic information of UPRR that it makes available, or has previously made available, to Supplier in connection with the Agreement and/or PO.  Confidential Information includes information pertaining to UPRR’s finances, marketing plans, business strategies, business plans, forecasts, employees, customers, vendors, contractors, software, technology and the terms of any Agreement and/or PO.  Supplier will take commercially reasonable means to secure UPRR’s Confidential Information, which will include procedures at least as stringent as those Supplier uses to protect its own Confidential Information, but in no event constituting less than a reasonable standard of care.  Supplier will not use or disclose UPRR’s Confidential Information, except as necessary under these Terms and Conditions or as otherwise agreed in writing.  Confidential Information will not include information that: (a) has entered the public domain through no action or failure to act of Supplier; (b) was already lawfully in Supplier’s possession prior to disclosure without any obligation of confidentiality; (c) subsequent to disclosure hereunder is obtained by Supplier  on a non-confidential basis from a third party who has the right to disclose such information to Supplier; provided, however, that Supplier shall keep any personally identifiable information (“PII”) confidential as required by any Applicable Law.  Supplier may disclose the Confidential Information of UPRR to the limited extent such disclosure is ordered or otherwise required by a court of law or other governmental body; provided, however, UPRR is promptly notified of such order or requirement and given a reasonable opportunity to intervene.    

14. Records and Audits

(a)        Supplier will maintain comprehensive records of its employees, its equipment and the Services and/or Products under the Agreement or PO.  Supplier will keep these records available for inspection by the UPRR’s auditors or its authorized representatives for a period of three (3) years following completion of such Services and/or delivery of such Products or expiration or earlier termination of the Agreement or PO.

(b)        At any time during the above‑referenced three (3) year period, UPRR or its authorized representatives shall have the right to audit Supplier’s records.  Supplier shall promptly reimburse UPRR for amounts billed to UPRR that are not supported by the records maintained by Supplier.  UPRR will be responsible for the full costs of this audit unless such audit reveals an overpayment of greater than five percent (5%) caused solely by Supplier, in which case the cost of such audit shall be borne by Supplier.  

15. Miscellaneous

(a)        Neither party shall be liable for any failure to perform any obligation here under resulting from acts of God, fire, flood, tornado, explosion or other casualty, war, riot, embargo, strike,  labor unrest, national emergency, restrictions caused by a governmental authority, or other condition or cause beyond its reasonable control and not related to its fault or negligence. Due diligence shall be used in attempting to eliminate such cause(s) and, upon such elimination the parties shall immediately resume performance in accordance with these Terms and Conditions; provided, however, that UPRR shall have the right to terminate any PO or Agreement upon the occurrence of an event of force majeure which prevents Supplier from meeting its obligations to perform for a period of six (6) months or more.

(b)        Supplier must not use the name, logo, trademarks or trade names of UPRR in publicity releases, promotional material, customer lists, advertising, marketing or business‑generating efforts, whether written or oral, without obtaining UPRR’s prior written consent, which consent may be withheld at UPRR’s sole discretion.

(c)        To the maximum extent possible, each provision of these Terms and Conditions shall be interpreted in such manner as to be effective and valid under the laws of the State of Nebraska, but if any provision of these Terms and Conditions is held to be invalid, void or unenforceable, the remaining provisions thereof will not be affected by such determination and the provision in question must be replaced by the lawful provision that most nearly embodies the original intention of the parties.

(d)       Without limiting any restriction on assignment set forth herein, the provisions of these Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns.  These Terms and Conditions are made for the sole and exclusive benefit of the parties hereto and their respective successors and assigns; no third party is intended to have or shall have any rights under these Terms and Conditions.

(e)        These Terms and Conditions, Agreement and/or any PO shall be governed, construed, and enforced in accordance with the laws of the State of Nebraska without regard to principles of conflicts of laws.  Litigation shall be instituted and maintained exclusively in the State and Federal courts in Douglas County, Nebraska, and the parties consent to the jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts.

(f)        UPRR reserves the right to  update these Terms and Conditions on a periodic basis. 

(g)        Unless and to the extent otherwise provided in an Agreement, any notice, demand or any other instrument required or authorized by these Terms and Conditions shall be sufficiently served or given for all purposes (i) when personally delivered to any officer of the party to whom it is addressed or (ii) when sent by reputable overnight courier (such as United Parcel Service) or (iii) when sent by facsimile transmission, electronically confirmed, addressed to each party’s address as set forth in a PO or Agreement.

h) Supplier acknowledges that money damages alone would not be a sufficient remedy for any violation by it of these Terms and Conditions, the PO and/or Agreement that address use of UPRR property, including Work Product, or disclosure of UPRR Confidential Information, and that UPRR will be entitled to seek specific performance and injunctive relief as remedies for any such violation or threatened violation, in addition to any other remedies which may be available.

(i)         The provisions of these Terms and Conditions which, by their terms and context show the parties’ intended them to survive the termination or earlier expiration of these Terms and Conditions, the Agreement and/or PO for any reason, including, without limitation, Indemnification (Section 6), Limitation of Liability (Section 7), Confidentiality (Section 13), Audit Rights (Section 14), Representations and Warranties (Sections 16(b) and 17(b)) and Intellectual Property Ownership (Section 17(d)).

(j)         These Terms and Conditions together with the applicable Agreement and/or PO constitute the entire agreement between UPRR and Supplier.  Any prior or contemporaneous oral or written communications or agreements of the parties with respect to the Products and/or Services not expressly set forth herein, in the applicable Agreement and/or PO are of no force and effect and these Terms and Conditions, the Agreement and/or PO supersede all other prior or contemporaneous representations, discussions, negotiations and agreements, whether oral or in writing between the parties relating to the subject matter hereof.  

16. Terms Applicable to UPRR's Purchase of Products

 The following additional terms apply to UPRR’s purchase of Products from Supplier

(a)        Billing

(i)         All Invoices must be submitted electronically via UPRR’s designated electronic data interchange order and invoicing processing (“EDI 810”).  Invoices shall utilize rail industry guidelines.  Invoices, together with any shipping, delivery or other documents issued by the Supplier, must match the corresponding PO exactly, and shall include the UPRR PO Number, UPRR Item Number and name and address of consignee.  Invoices shall also specify brand, quality, number or other trade designation for all Products furnished. 

(ii)        Supplier shall provide a detailed shipping notice to consignee and to the UPRR personnel designated on the PO, as soon as any Product referenced on such PO is placed in transit.  Each invoice must be submitted with receipted Bill of Lading, express receipt or receipted delivery ticket attached, and indicating whether shipment is by Parcel Post UPS.

(iii)       Paper Invoices will not be accepted and do not trigger any UPRR payment obligation.  Additional information regarding the Invoice submittal process can be obtained here, which is expressly incorporated herein.

(iv)       Supplier must issue a separate Invoice for each PO.  If the PO is completed in one shipment, Supplier shall provide a single Invoice, and if partial shipments are made under a PO, Supplier shall submit a separate Invoice for each shipment or delivery when made. 

(v)        The Invoice payment and/or cash discount periods will commence on UPRR’s receipt of an Invoice in accordance with all applicable terms of this Section, not from the Invoice date.  Subject to Supplier’s compliance with these Terms and Conditions, together with the terms of any Agreement, as applicable, UPRR shall pay invoiced amounts according to terms on the applicable PO or Agreement.  Except as otherwise agreed to in writing by UPRR, payment terms shall be thirty (30) days from date UPRR receives Supplier’s undisputed Invoice.   

(b)        Products Representations and Warranties.

(i)         Without waiving and in addition to all other warranties or duties imposed by law, Supplier explicitly warrants and promises that the Product shall last and shall perform (a) either (i) for a period of two (2) years after the tender of delivery and UPRR’s express acceptance of the Product; or (ii) for the expected operating life of such Product, whichever Warranty Period is longer; or (b) for the warranty period set forth in the applicable PO or Agreement (the “Warranty Period”). Without waiving any other warranties or claims allowed by law, Supplier also explicitly represents, warrants and promises as follows (hereinafter “Warranty”):

(1)        The Supplier shall manufacture and deliver Products exercising its best professional judgment, consistent with and in conformity with prudent industry practice and employing a standard of care and skill employed by persons or entities involved in similar activities for projects of similar scope and complexity.

(2)        Supplier shall maintain, at all times, all necessary and required authority, license, status, professional ability, skills and experience to manufacture and deliver the Products.

(3)        Supplier has appropriately evaluated all designs, drawings, specifications, surface and surface conditions (if applicable), waterway, drainage and other site conditions (if applicable), impact and other studies (if applicable), constructability, costs and fees, rules, materials, laws, regulations and standards for the Products and Supplier has independently determined the feasibility, manner, means, price and appropriate methods to be used in manufacturing and delivering Products, and Supplier warrants that the Products (including but not limited to its specific design and construction) are feasible, can be completed to UPRR’s satisfaction for the price stated, and can be completed in accordance with the requisite skills and knowledge possessed by like professionals and contractors within the industry.

(4)        Supplier shall produce and deliver Products skillfully, carefully, diligently, in a reasonably good and workmanlike manner and the final result will be merchantable, safe and fit for its intended use and purpose.  The Products will comply with all written standards, review protocols and stated requirements provided by UPRR.

(5)        The Products and UPRR’s use of the Products, in accordance with the Supplier’s instructions, shall comply with all Applicable Laws.

(6)        The Supplier has the expertise necessary to produce and deliver the Products, and UPRR is entitled to reasonably rely on the Supplier’s expertise, reports, data and/or conclusions reached by the Supplier relative to the Products and UPRR shall have no express or implied duty to undertake any independent review to verify the accuracy or veracity of the work and products or services rendered.

  (7)      The Product will (A) be of original development; and (B) not infringe upon, or violate, any patent, copyright, trademark, or other intellectual property right of any third party. 

(8)        Supplier has title to or the rights to distribute the Products and has the right to sell the Products, and that at the time of delivery, such Products shall be free of any and all security interests or other liens or encumbrances whatsoever.  Upon payment by UPRR to Supplier for any Products, UPRR shall have good and marketable title to such Products free of any and all security interests or other liens or encumbrances whatsoever.

(ii)        Notwithstanding the foregoing, if the warranty provided by any third party manufacturer or assembler of Products is more extensive than the Warranty (including, without limitation, the length of the Warranty Period), Supplier shall provide and/or pass through to UPRR the warranty provided by such third party manufacturer or assembler of the Products.  Supplier represents and warrants that any such warranty is transferable to UPRR and that Supplier will execute all instruments and will otherwise cooperate as requested by UPRR to effectuate this Section.         

(iii)       Notwithstanding and without waiving any remedies allowed by law, and upon discovering any breach of Supplier’s warranty or duties undertaken by the Agreement or PO, UPRR (at its option) may require Supplier, at Supplier’s sole cost and expense, to (a) replace, remediate or repair defective Products, materials, equipment and goods, to correct the defects or otherwise remedy the Products during the Warranty Period, (b) refund the Price of any non-conforming Products; (c) give UPRR credit equal to the Price of the non‑conforming Products on purchases of Products and/or other products from Supplier.  Supplier’s obligation to repair or replace defective Products hereunder shall include all costs associated with disassembly, removal, transportation and reassembly of the affected portion(s) of the Products.  Replacement Products provided hereunder shall be considered new Products for purposes of the Warranty Period.  In the event of any emergency when, in the judgment of UPRR, delay could cause serious loss or damage, repairs or adjustments may be made by UPRR or a third party chosen by UPRR with reasonable notice to Supplier, and the cost of such repairs or adjustments, including materials and labor, shall be paid by Supplier.

(iv)       This Warranty is in addition to any and all other Product warranties, remedies and representations set forth with respect to such Products and shall supersede any disclaimer or notice that attempts to limit the Warranty. If this Warranty fails of its essential purpose, UPRR shall be entitled to any other remedies provided for under Applicable Law including, without limitation, by the Uniform Commercial Code of the State of Nebraska (“UCC”).

(c)        Freight Charges; Routing Instructions; Shipping; Delivery.

(i)         The terms and conditions set forth in UPRR’s Routing Instructions (“Routing Instructions”) shall apply to freight charges for the Products, shipping and routing instructions for the Products, and delivery of the Products, and such Routing Instructions are hereby made a part of these Terms and Conditions; provided, however, in the event of any conflict between such Routing Instructions and these Terms and Conditions, these Terms and Conditions shall control. 

(ii)        Supplier shall adhere to each applicable “Order Due Date,” which is defined as the applicable deadline for delivery, as set forth in the PO or any Agreement, as applicable.  Time is of the essence. Supplier shall be responsible for all freight expediting costs resulting from Supplier's late shipment or delayed delivery.

(iii)       Products purchased hereunder will be shipped F.O.B. point specified in the PO or Agreement.  Supplier may only ship materials as UPRR company material if materials are finished and are solely for UPRR and no other customer.  Supplier agrees to absorb truck freight shipment charges and switching rail charges for freight car shipments not on UPRR lines.

(iv)       Supplier agrees to provide a Material Safety Data Sheet for Products as required by Applicable Law.

(d)       Inspection; Performance Standards.

(i)         UPRR shall have the right, but not the duty, at all reasonable times to inspect and test the Products, whether prior to, or following delivery. UPRR shall have no express or implied obligation to inspect or test; however if UPRR decides to exercise this option, such inspection or testing shall be for information only and it shall not create any affirmative responsibility, liability or indemnity upon UPRR, nor shall it be seen as any acceptance, waiver or estoppel of any PO, Agreement, Products, act, omission or negligence by Supplier. Nothing in this section shall relieve Supplier of Warranty, Liability, Damages or Indemnity under any provision of these Terms and Conditions. Supplier shall make all necessary arrangements and provide all reasonable facilities and access for such inspection and testing at Supplier’s facility.  UPRR may reject any non‑conforming Products at any time prior to shipment or during the applicable Warranty Period.  Supplier shall pay all expenses, including freight both ways, on rejected Products.  Product quality will be monitored upon UPRR source inspection.   

 (ii) Delivery. Supplier agrees to make the Products available at FOB location within the number of calendar days as specified in the PO. 

(iii)       Responsiveness.  Supplier shall respond within ten (10) days following its receipt of any claim by UPRR that a shipment of Products was incorrect in quantity (e.g., overage or shortage) or other respect (e.g., type of Products shipped inconsistent with the Agreement and/or PO), or that any Invoice was incorrect in any respect.

(e)        Risk of Loss.  Risk of loss of the Products shall be borne by Supplier until the Products are properly delivered at the F.O.B. point specified in the applicable PO; or, if no F.O.B. point is specified therein, until: (i) UPRR accepts the Products at the nearest UPRR interchange point if the Products are delivered by rail; or (ii) UPRR accepts the Products at the UPRR facility or location to which they are to be delivered if the Products are delivered other than by rail.  Notwithstanding the foregoing, IF THE PRODUCTS ARE EXPLOSIVE, FLAMMABLE, TOXIC, HAZARDOUS, OR CAUSE PROPERTY DAMAGE (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL CLAIMS) OR PERSONAL INJURY, SUPPLIER SHALL DEFEND, INDEMNIFY, AND HOLD UPRR HARMLESS FROM AND AGAINST ALL CLAIMS ASSERTED AGAINST UPRR THAT ARISE OUT OF ANY PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY THE PRODUCTS OR BY THE TRANSPORTATION THEREOF PRIOR TO THE TIME UPRR ACCEPTS THEM.

(f)        Recall.  Supplier shall provide UPRR immediate written notice of any manufacturer’s, industry, government, trade group or any other recall, warnings and notices, involving the Product(s) (including but not limited to any OEM/OCM component parts or other Products) as well as the name and telephone number of the appropriate representative of Supplier to contact for information concerning such a recall.  Supplier shall provide UPRR reasonable assistance in identifying Products that are subject to a recall, warning or notice, and shall agree to complete  any documentation that may be necessary as a result thereof.

(g)        Repair Right.  UPRR shall have the right to repair patented devices, and repair parts may be made by or for UPRR or purchased in the open market as UPRR may determine.  If the PO or Agreement relates to rolling stock or equipment subject to customary interchange, the rolling stock or equipment being purchased by UPRR may be repaired by other railroads no matter where the repair parts are obtained, and UPRR shall have the same right to repair foreign rolling stock or equipment under such interchange.  UPRR, 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 to UPRR 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 UPRR in connection with repairs and repair parts contemplated by this Section.

(h)        Termination.  Any PO may be terminated by UPRR at no cost to UPRR, regardless of whether due to default by the Supplier, or for UPRR’s convenience, at any time prior to delivery of the Products.  Without limiting the foregoing, UPRR may terminate a PO at any time, effective immediately upon written notice to Supplier, if, in the sole discretion of UPRR (i) any Products are deemed unsatisfactory; or (ii) Supplier otherwise breaches any obligation under these Terms and Conditions, a PO, or an Agreement.  In the event of any termination prior to completion of Services, as provided in a PO, Supplier shall: (x) preserve and protect materials on hand purchased or committed for the PO t and on or before the date of termination, turn over to UPRR all UPRR’s property in Supplier’s possession; and (y) if requested by UPRR, cooperate with UPRR, and/or its agents or other contractors and provide information, personnel and resources reasonably necessary to effect an orderly transition of the terminated PO for Products to a UPRR designee.

(i)         Packaging.  The Prices listed in the PO or Agreement are inclusive of all packaging costs. Each Product is to be received by Railroad in superior quality.  Supplier shall be responsible for ensuring Product integrity during shipment.  Prior to the first shipment of any Product, Supplier shall determine if a Packaging Standard is provided for such Product by the Institute for Supply Management – Rail Industry Forum (ISM-RIF) Packaging Standards Subcommittee (an “ISM-RIF Packaging Standard”).  A list of ISM-RIF Packaging Standards can be found at the following website:  http://www.railcis.org/packaging-standards/  (note that all ISM-RIF references to banding shall be non-metallic only).  If an ISM-RIF Packaging Standard does not exist for the item, Supplier shall provide for Fulfillment approval a proposed Packaging Standard for such Product that meets the requirements provided by Railroad. In all cases, Supplier shall also adhere to the following Packaging Specifications, unless instructed otherwise by Railroad:

Supplier shall include a Packing Slip, securely attach to each box, container or individually shipped item, which shall include: (a) UP Purchase Order Number; (b) UP Material Number; (c) Purchase Order Quantity for each line item; (d) Shipped Quantity for each line item; and (e) Ship to consignee (including address and contact name). All stock material must also be identified with UPRR stock item numbers.

i.    Supplier shall ensure Material is delivered on Grade A, Hardwood Pallets, and at no time shall pallets be placed on top of other pallets.

ii.   Supplier shall not to use foam packing peanuts when packing electronic items or electronic components.

iii.  Supplier shall use only non-metallic banding on item shipments/packaging to UP operations, unless Supplier receives prior written approval from UP’s Supply Chain for any exceptions.

iv.  Supplier shall avoid placing “mixed item” (different items) in the same container; if item is mixed, supplier should sort, itemize and label like components.

v.   Supplier shall ensure packaging does not exceed the size of the pallet (no overlap).

vi.  Supplier shall not use metal staples to secure packaging.

For the safety of UPRR’s and Supplier’s employees, UPRR mandates, and Supplier agrees to comply with, the use of only non-metallic banding on material shipments / packaging to UPRR’s operations. Only those suppliers with written approval from Union Pacific's Senior Manager 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.

(j)         Work on UPRR Property.  Should it become necessary for Supplier or its employees or agents to enter upon the premises or property of UPRR in order to construct, erect, inspect, deliver, repair or provide Services and/or Products as required by the Agreement and/or the PO, SUPPLIER SHALL BE RESPONSIBLE FOR AND SHALL REIMBURSE UPRR FOR ANY DAMAGE TO UPRR’S PROPERTY, OR TO THE PROPERTY OF OTHERS, AND SHALL INDEMNIFY, SAVE HARMLESS AND ASSUME THE COST OF DEFENSE OF UPRR 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 SUPPLIER OR ITS AGENTS OR EMPLOYEES, ON OR ABOUT UPRR’S PREMISES OR PROPERTY, OR IN CONNECTION WITH ANY ACTIVITIES OR SUPPLIER PURSUANT TO THE AGREEMENT AND/OR THE PO.

 

17. Terms Applicable to UPPR's Purchase of Services

The following additional terms apply to UPRR’s purchase of Services from Supplier.

(a)                    Minimum Safety Requirements. Supplier shall, and shall cause its employees, subcontractors and agents to, adhere to the Minimum Safety Requirements for Contractors, plus any additional instructions at the job site, to ensure an injury‑free project.  The UPRR-designated employee in charge of any job site is authorized to take any actions necessary to prevent injuries to any person, damage to UPRR property, disruption of UPRR operation and the safety of the public.  Supplier shall take all actions necessary to ensure the safety of its employees, UPRR’s employees and, if applicable, the public.  In addition, to the extent applicable, Supplier shall, and shall cause its employees, subcontractors and agents to, adhere to UPRR’s Controlled Access Policy.

(b)        Billing and Payment. 

(i)         All Invoices must be submitted electronically via UPRR’s SourceHub.  Invoices shall utilize rail industry guidelines.  Invoices, together with any other related documents issued by the Supplier, must match the corresponding PO exactly, and shall include the PO Number, if applicable. 

(ii)        Subject to proper performance of the Services and adherence to these Terms and Conditions, the Price shall be payable by UPRR within thirty (30) days after presentation of proper Invoice in the SourceHub.  Additional information regarding the Invoice submittal process can be obtained here, which is expressly incorporated herein.

(b)        Services Representations and Warranties.  Without waiving and in addition to all other warranties or duties imposed by law, Supplier expressly represents, warrants and promises that:

(i)         Supplier shall perform the Services in conformity and with the standard of care and skill employed by service providers involved in similar activities for services of similar scope and complexity, and the Supplier shall perform the Services in accordance with any applicable specifications provided in the PO, Agreement, or otherwise provided by UPRR.

(ii)        Supplier and its personnel assigned to perform the Services (including its employees, subcontractors and agents) are experienced, qualified and licensed (if necessary or advisable) to perform the Services in a safe, diligent and good and workmanlike manner, in accordance with generally accepted industry practices, and the Services shall be performed in a safe, diligent and good and workmanlike manner, in accordance with generally accepted industry practices.

(iii)       Supplier has the expertise necessary to perform the Services, and UPRR is entitled to rely on Supplier’s expertise, reports, Work Product, data and/or conclusions reached by Supplier in its performance of the Services; and any use by UPRR of the Services or any related reports, Work Product, data or other deliverables shall comply with all Applicable Law.

(iv)       Supplier shall maintain, the Agreement or PO at all times, all necessary permits and/or licenses required to perform the Services.

(v)        At its sole expense, Supplier shall furnish (unless herein otherwise specifically provided in writing by UPRR) all supervision, labor, tools, equipment, materials, and supplies and all other things requisite and necessary to properly perform the Services.

(vi)       Supplier, its employees, subcontractors and agents shall not treat, store or dispose of hazardous waste or release any hazardous substances, as the same are defined in applicable federal, state, or local laws and regulations, on or adjacent UPRR’s property.  Supplier shall assume all responsibility for the investigation and cleanup of any spillage and shall indemnify and defend the UPRR Indemnified Parties for all costs and claims, including consultant and attorney fees, arising in any manner out of such spillage or Supplier's failure to comply with environmental laws.  If Supplier discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non‑containerized commodity or material on or adjacent to UPRR’s property, in or near any surface water, swamp, wetlands or waterway, while performing any Services, Supplier shall immediately: (A) notify UPRR’s RMCC at 1-800-877-4267, of such discovery; (B) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties; and (C) exercise due care with respect to the release, including the taking of any appropriate measures to minimize the impact of such release.

(vii)      the Work Product, if any, will (A) perform in accordance with the specifications described in the PO and/or the Agreement; (B) be of good material and workmanship; and (C) be free from material defects.

(viii)     The Services delivered hereunder will (A) be of original development by Supplier, and (B) not infringe upon, or violate, any patent, copyright, trademark, or other intellectual property right of any third party.

(ix)       The representations and warranties in this Section 18(b) are in addition to any and all other warranties, remedies and representations set forth with respect to such Services and shall supersede any disclaimer or notice that attempts to limit them. If this Section 18(b) fails of its essential purpose, UPRR shall be entitled to any other remedies provided for under Applicable Law.

(c)        Termination.  UPRR may terminate a PO, with or without cause, effective thirty (30) days following written notice to the other party.  Notwithstanding the foregoing, UPRR may terminate a PO at any time, effective immediately upon written notice to Supplier, if in the sole discretion of UPRR: (i) any Services are deemed unsatisfactory; or (ii) Supplier otherwise breaches any obligation under these Terms and Conditions or a PO.  In the event of any termination prior to completion of Services, as provided in a PO, Supplier shall: (x) after receipt of a termination notice, immediately discontinue all terminated Services except as otherwise directed by UPRR, (y) preserve and protect materials on hand purchased or committed for the PO and on or before the date of termination, turn over to UPRR all UPRR’s property, UPRR Intellectual Property, materials and Services in Supplier’s possession, including, but not limited to, all work in progress or Work Product (finished or unfinished) generated during the performance of the terminated Services; and (z) cooperate with UPRR, and/or its agents or other contractors and provide information, personnel and resources reasonably necessary to effect an orderly transition of the terminated Services to UPRR or its designee.

(d)       Intellectual Property Ownership.  Any and all work, work in progress, work product, data property, inventions, improvements, designs, trade secrets or any other tangible or intangible results prepared, produced, created, or conceived arising from, relating to, or developed in connection with the Services (“Work Product”) shall be the sole and exclusive property of UPRR, whether work made for hire or otherwise, and Supplier shall not have any right, title, interest or license therein.  To the extent, if any, that Supplier may have right, title or interest in or to such Work Product or to any intellectual property right therein, Supplier hereby assigns and conveys the same to UPRR in its entirety. Supplier agrees, at no additional charge, to execute all applications or registrations for patents and copyrights and all other instruments and to otherwise cooperate as reasonably requested by UPRR to effectuate this Section. Supplier further agrees promptly and without prior request to disclose to UPRR all such inventions, works of authorship and any other intellectual property conceived, developed, originated, or reduced to practice by Supplier or under Supplier’s direction.  Supplier shall not incorporate preexisting works into the Work Product without the consent of UPRR.  To the extent that any such preexisting work or preexisting know-how of Supplier is incorporated into the Work Product (either with or without UPRR’s consent) Supplier hereby grants to UPRR an irrevocable, fully paid, perpetual, nonexclusive, worldwide, royalty-free right and license to use, copy, modify and prepare derivative works based on such preexisting work or know-how and any derivative works thereof and to authorize others to do any or all of the foregoing. The foregoing shall not be deemed to preclude Supplier from using generalized ideas, concepts, know-how, processes and techniques learned during the course of an engagement and retained only in non-tangible, non-electronic form, provided that Supplier does so without violation of its confidentiality obligations contained herein.  To the extent the Services require Supplier to use any intellectual property owned by UPRR or its licensors (“UPRR Intellectual Property”), UPRR grants to Supplier a limited, non-exclusive, revocable, license to use such UPRR Intellectual Property solely for the purpose of Supplier performing the Services and such license shall automatically terminate upon Supplier’s completion of such Services or at UPRR’s option, whichever is earlier.  Except to the extent expressly provided by the foregoing, UPRR retains all right, title, and interest to all UPRR Intellectual Property and nothing herein shall be construed as conveying, transferring, or assigning any right, title, or interest in any UPRR Intellectual Property to Supplier. 

Last Updated May 3, 2018