STANDARD TERMS AND CONDITIONS FOR PURCHASE ORDERS
These Standard Terms and Conditions for Purchase Order (“Terms and Conditions”) are incorporated by reference into Buyer’s purchase order or into another contract between Buyer and Vendor that specifically incorporates them by reference (“Order”). Together with the Order, these Terms and Conditions constitute the entire contract (“Contract”) between Buyer and Vendor. To clarify, these terms and conditions always apply to purchase orders but do not apply to other contracts unless the terms and conditions are specifically incorporated by reference into such other contracts.
1. BUYER/VENDOR. “Buyer” refers to Penske Entertainment Corp., Penske Motorsports Corp., INDYCAR, LLC, IMS Productions, Inc., Indianapolis Motor Speedway, LLC, and/or Georgetown Realty, LLC, or its/their subsidiaries or affiliates that issued the Order. “Vendor” refers to the vendor referenced in the Order.
2. CONTRACT. The terms of the Contract, including these Terms and Conditions, shall apply to all purchases of Deliverables (as defined below) by Buyer from Vendor, and Buyer’s purchase of Deliverables is expressly made conditional on Vendor’s assent to these Terms and Conditions. Deliverables means: (a) all services described in the Order (“Services”); and/or (b) all goods specified in the Order, including without limitation all supplies used in or provided in connection with performance of any Services (“Products”). This Contract is expressly limited to the terms and conditions contained in the Terms and Conditions and Order. Any additional or different terms proposed by Vendor in any quotation, acknowledgment, invoice or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. Any such proposed terms shall be void. Buyer and Vendor acknowledge and agree that (a) the Deliverables are provided at, and all related transactions under this Agreement shall occur at, Buyer’s location as specified in the Order and (b) that all taxes related to this Contract are attributable to activities at such location.
3. MODIFICATIONS AND CHANGES. This Contract cannot be changed, amended or modified except by written amendment signed by an authorized representative of both of the parties.
4. WARRANTIES. Vendor represents and warrants to Buyer as follows: (a) Title. Upon delivery, Buyer shall have good and marketable title to the Deliverables, free and clear of all liens, taxes, charges and other encumbrances; (b) Products. The Products (i) are merchantable, of good quality and free from defects; (ii) are fit for their ordinary intended purposes and any purposes specified herein or otherwise communicated to Vendor; (iii) conform to the agreed specifications and comply with all applicable laws; and (iv) conform to the descriptions on their labeling and packaging; (c) Services. The Services will be of good quality and free from defects and will be performed, lien-free in a timely, safe, professional, thorough and workmanlike manner by qualified personnel using qualified Products, in strict compliance with all applicable laws, and in accordance with industry standards; (d) Standard Warranties. Any standard, customary, agreed upon, represented or warranties specified by the vendor for the Product or service provider for the Services; (e) Warranties of Non-Infringement. The Products and the sale and/or use thereof do not and will not infringe, misappropriate or violate any intellectual property rights of any third party.
5. TIMELY DELIVERY; SUPPLY. Time is of the essence of this Contract. If any delivery of Products or performance of Services is not made when promised, Buyer may, without waiving or prejudicing any of its other remedies, refuse any Deliverables and cancel all or any part of the Order without liability.
6. SHIPMENT TERMS; FREIGHT CHARGES; RISK OF LOSS; TITLE. Vendor shall deliver the Products in accordance with the delivery terms set forth in the Order and if no delivery terms are stated then the price includes all cost to deliver the Products to the specified delivery address. Title and risk of loss with respect to the Products shall pass to Buyer (subject to its inspection and return rights) upon acceptance by Buyer.
7. PRODUCT INSPECTION AND REJECTION. Products shall not be deemed accepted by Buyer until they have been physically received and inspected and accepted by Buyer. Inspection may occur either at or after the time of delivery and that if subsequent to delivery, the products are found to be non-conforming, Buyer can revoke acceptance. If any Products are found to be non-conforming upon Buyer’s inspection or are shipped contrary to instruction or on a shipping date not specified by Buyer, Buyer shall have the right, without waiving or prejudicing any of its other remedies, to reject such Products and return them or hold them at Vendor’s expense as rejected goods (either all or any portion of them), to require the Vendor to repair the rejected goods or to rescind the Order. Buyer may charge Vendor with storage and freight costs (inbound and outbound) and any other expenses incurred by Buyer with respect to nonconforming Products, including disposal costs.
8. ACCEPTANCE OF SERVICES. Services shall not be deemed complete until accepted by Buyer. If Buyer determines that any of the Services are defective, Buyer may, without waiving any other rights or remedies, notify Vendor of such defects and Vendor shall re-perform the Services or take such other action as necessary to remedy the defect and pay Buyer’s costs, expenses and other damages arising therefrom. Alternatively, and without limiting Buyer’s other rights and remedies, if Buyer reasonably determines that it is not technically or economically feasible to correct the defect in any Services, Vendor shall deduct from the price (or refund to Buyer) an equitable amount acceptable to Buyer.
9. PRICE. The price for the Deliverables is set forth in the Order (the “Price”), and Vendor cannot add charges for taxes (other than sales on the Deliverables based on Buyer’s purchase or use of such Deliverables), shipping, packaging or other matters without Buyer’s express prior written agreement, unless otherwise indicated on the Order. Vendor shall be responsible and pay for all taxes, duties, fees, shipping, packaging, and other charges other than sales tax. Vendor shall document all taxes paid by it or to be paid by Buyer, in each case to the extent permitted by this Agreement, on separate line items providing in detail the type and amount of each tax. Without limitation, Vendor shall document with specificity all retail sales taxes and use taxes attributable to the sale of tangible personal property to IMS or to Vendor. Vendor specifically and expressly assumes the risk of any foreseen or unforeseen event or cause occurring after the date of the Order and affecting costs or pricing.
10. INVOICES; PAYMENT. Vendor shall invoice Buyer for the Deliverables promptly after delivery. Invoices must be in acceptable form, contain the applicable PO number, and include such supporting documentation as Buyer may reasonably require, including adequate evidence of delivery of Products or progress and/or completion of Services. Payment terms are as set forth in the Order and if no payment terms are stated in the Order, payment shall be due 45 days after Buyer’s receipt of a correct and complete invoice.
11. LEGAL COMPLIANCE. Vendor will identify and at all times comply with, and give all notices required under, all applicable foreign, federal, state, and local laws as in effect from time to time.
12. TERMINATION. Buyer shall also have the right to terminate the Order or this Contract for Buyer’s convenience upon 30 days’ notice.
13. INDEMNITY. (a) Vendor shall protect, indemnify, reimburse, hold harmless and defend Buyer and its officers, directors, employees, workers, agents, servants, and invitees (“Indemnified Parties”), from and against all losses, costs, expenses (including reasonable attorneys’ fees and other expenses of litigation, arbitration and investigation), damages, penalties, fines, demands, claims, suits and other liabilities including claims or lawsuits based upon the negligence or wrongful conduct of the Indemnified Parties, except for claims or lawsuits based upon the sole negligence or intentional misconduct of the Indemnified Parties (collectively, “Liabilities”) arising from or in connection with (i) the Deliverables; (ii) the presence of Vendor’s employees, contractors, subcontractors or agents on Buyer’s premises; (iii) Vendor’s performance or nonperformance of its obligations under this Contract; (iv) Vendor’s or its employees’, agents’ or subcontractor’s negligence or intentional misconduct, except to the extent caused by the sole negligence or intentional misconduct of Buyer or its employees; or (v) Buyer’s or its employees’, agents’ or subcontractor’s negligence or wrongful conduct, except to the extent caused by the sole negligence or intentional misconduct of the Buyer. Vendor will reimburse each Indemnified Party for all Liabilities as they are incurred in investigating, preparing, pursuing or defending any claim, legal action, proceeding or investigation, whether or not in connection with pending or threatened litigation and whether or not any Indemnified Party is a party thereto.
14. RIGHT TO SET OFF. If any such cost, loss, damage, expense, liability, claim, or obligation occurs or is incurred by the Buyer, Buyer shall have the right, after written notice to the Vendor, at Buyer’s option and in addition to any other actions permitted by law, to offset the amount of any such cost, loss, damage, expense, liability, obligation or claim against amounts due from the Buyer to the Vendor, including the right to offset any payment due from Buyer to Vendor under this Contract.
15. ASSIGNMENT. No assignment of this Contract shall be made without the prior written consent of the other party.
16. GOVERNING LAW; VENUE. The Contract shall be governed by and construed in accordance with the laws of the United States of America and the State of Indiana. The sole and exclusive venue for all actions arising out of or relating to the Contract, or the breach, termination, cancellation, expiration or validity thereof, or the Deliverables shall be the state and federal courts located in Marion County, Indiana. If the matter is brought in State Court, the parties consent and require that the matter shall be brought in Marion County Superior Court on the Indiana Commercial Court Docket. Vendor consents to the jurisdiction of such courts and agrees not to object to venue therein.
17. ENTIRE AGREEMENT; SEVERABILITY; SURVIVAL. This Contract is the final and entire agreement between Vendor and Buyer with respect to the Deliverables. Any conflicts between this Contract and a prior oral or written agreement between the parties related to the subject matter of this Contract shall be resolved in favor of this Contract. If any provision of this Contract is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Contract unless it materially impairs the ability of the parties to consummate the transactions contemplated by this Contract. All indemnities and warranties shall survive the termination, cancellation or expiration of this Contract.
Effective 1-29-2020