Terms and Conditions
1. ACCEPTANCE. This Purchase Order may be accepted only by (i) Seller beginning to perform the services set forth on the face of this Purchase Order; or (ii) the delivery of goods ordered by their specified delivery date; or (iii) Seller's commencement of work on the goods that are subject to this Purchase Order. Any acceptance of this Purchase Order is limited to acceptance of the express terms of the offer contained on the front and back hereof and in any other document(s) fully identified on the face hereof and specifically incorporated herein by reference thereto. Any proposal for additional or different terms or any attempt by Seller to vary, in any degree, any of the terms of this offer in Seller's acceptance is hereby objected to and rejected. If this Purchase Order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to acceptance of the express terms contained herein. Any additional or different terms or any attempt by Seller to vary in any degree any of the terms of this Purchase Order shall be deemed material and are objected to and rejected; provided, however, that this Purchase Order shall not operate as a rejection of that prior offer unless such variance is in the term of the services, description of goods, quantity, price, or delivery schedule of the goods and/or services.
2. PRICING. Pricing is inclusive of applicable taxes, freight, packaging, insurance, handling and all other charges, whether similar or dissimilar, unless otherwise indicated on the face of this Purchase Order.
3. DELIVERY/PERFORMANCE. Time is of the essence in the delivery of goods, in the performance of services and in any other performance required of Seller hereunder. If goods are not delivered by the delivery date set forth on the face of this Purchase Order, Buyer and Seller acknowledge that the actual damages sustained by Buyer as a result of such delay may be difficult to determine; therefore, the parties have agreed that a reasonable estimate of the damages suffered by Buyer shall be an amount equal to 1% of the price of the goods for each week the goods remain undelivered. Buyer shall have the option to elect to reduce the purchase price set forth on the face of this Purchase Order by said amount at the time payment is due to Seller hereunder. If the goods have still not been delivered two (2) weeks after their delivery date, Buyer shall have the right, upon five days' written notice to Seller, to terminate this Purchase Order, in which event, Buyer shall not be liable to Seller for the price of such undelivered goods.
If Seller is required to fabricate or prepare any item or perform any services hereunder and Seller has not commenced or diligently pursued such fabrication, preparation or services such that Buyer has reason to believe that Seller will not be able to complete the same within the time requirements set forth on the face of this Purchase Order, Buyer shall have the right to terminate this Purchase Order by sending written notice thereof to Seller, effective on the date of such notice, in which event, Buyer shall not be liable to Seller under or in connection with this Purchase Order, except for services received as of the date of termination.
4. INSPECTION AND REJECTION. Buyer may inspect and reject all nonconforming goods and services within a reasonable period of time after delivery without regard to whether payment has been made. Buyer may choose, at Seller's risk and expense, to either hold nonconforming goods pending Seller's instructions or ship them to Seller's address first shown on the face of this Purchase Order.
5. WORK ON PREMISES. If Seller shall be performing work on Buyer's premises, Seller shall provide and pay for all materials, labor, tools, water, power and other items necessary to complete the work, unless expressly stated otherwise on the face of this Purchase Order. Seller shall adequately protect the work and surrounding premises and the public in its access to Seller's work site. Seller shall, while on Buyer's premises, comply with Buyer's rules and regulations of which Seller is provided advanced written notice. Buyer shall have the right to request the removal of any employee of Seller who Buyer reasonably deems to be unsatisfactory. In those states where cloth rags are not permitted on mine premises, Seller shall not use any cloth rags in connection with the work to be provided under this Purchase Order. Buyer shall have the right, but not the obligation, to inspect the work to insure that the terms and provisions of this Purchase Order are being complied with by Seller. Seller shall keep Buyer's premises free from accumulation of waste material and rubbish and in full compliance with any applicable law or regulation. Upon the completion of the work, Seller shall remove all rubbish, equipment and surplus materials from Buyer's premises. Notwithstanding anything herein to the contrary, this Purchase Order shall be subject to Seller's standard Master Performance Agreement ("MPA") and Seller shall fully comply with all requirements of the MPA.
6. WARRANTIES. Seller warrants that all goods and/or services will conform to all written proposals and descriptions as well as any drawings, specifications, samples or models furnished by Buyer or furnished by Seller and approved by Buyer. Seller further warrants (i) title to all goods sold and services supplied, (ii) that all goods shall be merchantable and fit for their intended purposes and shall be new, not refurbished or reconditioned, and of a good quality and free from defects in workmanship and material, and (ii) that all services shall be rendered in a good and workmanlike manner by skilled personnel qualified in their respective trades. Seller shall, if requested by Buyer, promptly re-execute or replace any part of any work that fails to conform to the requirement of this Purchase Order, except where defects are due entirely to negligence on the part of Buyer; in which case, if Buyer elects to have Seller remedy the defects, Buyer will pay Seller for its reasonable and necessary expenses for such repair of the work. This warranty shall not be deemed waived by either Buyer's receipt or acceptance of, nor payment for, the goods and/or services delivered hereunder.
7. INVOICES/AUDIT. Buyer shall have no obligation to pay for any item until a correct invoice for the item is received at the "Bill To" address shown on the face of this Purchase Order. Payment terms commence upon receipt of a correct invoice. With respect to services performed, Seller shall permit Buyer and its auditors to examine, during the term of this Purchase Order and for 3 years after completion of the work performed by Seller, all books, records, supporting documents, files and correspondence of Seller pertaining in any way to the services rendered and the price charged thereon by Seller. Seller will refund, and Buyer may withhold, payment of any invoice which is not supported by records and data required by this Purchase Order, or any payment which was not proper under the terms of this Purchase Order.
8. CHANGES. Buyer may make changes to (i) the services to be performed; (ii) the good to be delivered; (iii) the delivery date of the goods; (iv) the date of performance of the services; or (v) the goods to be specially manufactured, but no change shall be effective unless the parties mutually agree to such change in writing.
9. INDEMNITY. Seller shall indemnify, defend and hold harmless Buyer, its parents and/or members, subsidiaries, affiliates and related companies, and their officers, directors, agents, representatives and employees from any and all claims, liabilities, damages, losses, costs and expenses (including attorneys' fees and legal expenses actually incurred) which arise out of any claim or suit on account of (i) death or injury to any person, (ii) damage to any property, (iii) public charges and penalties, or (iv) any liability or lien arising from or in connection with Seller's acts or omissions (or of Seller's agents, suppliers or subcontractors) in furnishing any goods and/or the performance of any services hereunder, except to the extend caused by Buyer's sole negligence. This indemnity shall apply without regard to whether the claim, damage, liability, loss, cost or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnity shall survive delivery and acceptance of goods and/or services.
10. INSURANCE. Prior to the commencement of any work on Buyer's premises, Seller shall furnish to Buyer or Buyer's representative a Certificate of Insurance that reflects the following insurance coverage is in effect:
(i) Workers' Compensation and Occupational Disease Disability insurance as required by the laws of the state where the work is being performed.
(ii) Employers' Liability insurance with limits of $500,000 each accident and each employee disease, unless the state where the work is being performed precludes an independent right of action by an employee against an employer under common law.
(iii) Comprehensive Automobile Liability insurance with limits of $1,000,000 Bodily Injury and Property Damage combined single limit.
(iv) Comprehensive General Liability and Property Damage insurance, including Operations, Protective, Products/Completed Operations, Broad Form Property Damage and Contractual Liability coverages with limits of $1,000,000 Bodily Injury and Property Damage combined single limit.
All insurance polices must contain an unqualified provision that the insurance carrier will give Buyer thirty (30) days' prior written notice of any cancellation, change or lapse of such policy(s). The automobile and general liability policies shall name Buyer, its parents and/or members, subsidiaries, affiliates and related companies as additional insureds. The workers' compensation and employers' liability policies shall contain a waiver of subrogation by the Seller and its insurance company against the foregoing additional insureds (to the extent permitted by applicable state law). The parties hereto acknowledge that Seller's insurance shall be the primary coverage under this Purchase Order.
11. SECONDARY BRAKES; GROSS VEHICLE WEIGHTS. Any vehicle driven by an employee, agent or subcontractor of Seller onto Buyer's premises shall be equipped with a secondary brake retarding system that will provide the operator of the vehicle an additional method of slowing the vehicle in the event the vehicle's primary braking system malfunctions. Examples of acceptable secondary retarding systems include, but are not limited to, drive shaft brakes, exhaust brakes, "Jake" brakes, manual transmissions (low gear), automatic transmissions (low gear - provided that they are not equipped to shift into a higher gear at a high engine RPM), converter retarders and ground engagement implements. All vehicles driven by an employee, agent or subcontractor of Seller that enter onto Buyer's premises shall not exceed the gross vehicle weight rating specified by the original manufacturer of that vehicle. Buyer shall have the right, but no obligation or duty, to inspect the vehicles for compliance hereunder. Buyer shall have the right to prohibit any vehicle from entering onto its premises if that vehicle is not properly equipped with a secondary brake retarding system or it exceeds its manufacturer's gross vehicle weight rating. Any vehicle driven on the premises shall observe all posted speed limits and traffic control signs or devices. The failure of any agent, employee or subcontractor of Seller to comply with the foregoing may result in the driver being banned from Buyer's premises.
12. COMPLIANCE WITH LAWS. Seller warrants that all goods delivered and services performed pursuant to this Purchase Order shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances, including, but not limited to, safety, labor and environmental laws.
13. INDEPENDENT CONTRACTOR. If Seller's employees enter upon Buyer's premises to perform services, Seller shall perform said work as an independent contractor according to its own manner and methods without direction or control by Buyer.
14. EQUAL EMPLOYMENT OPPORTUNITY. Seller agrees to comply with Executive Order 11246 as amended and all regulations and orders thereunder, all of which are incorporated by reference. Seller will promptly furnish, upon Buyer's request, all certifications required thereunder. Seller further agrees, in compliance with the Vietnam Era Veteran's Readjustment Act of 1974, not to discriminate against any employee or applicant for employment because he or she is a disabled veteran or veteran of the Vietnam Era in regard to any position for which the employee or applicant is qualified.
15. PATENTS AND TRADEMARKS. Seller warrants that all goods and services shall not infringe on any third party patent, copyright, trade secret, trade name, trademark or service mark, or other proprietary right. Seller shall at its own expense defend, indemnify and hold Buyer, its members, officers, directors, agents, representatives and employees harmless from any and all claims, liabilities, damages and expenses (including attorneys' fees and legal expenses actually incurred) by virtue of any claimed infringement of patents, copyrights, trade secrets, trade names, trademarks, service marks or other proprietary right in connection with the goods or services supplied hereunder.
16. LIENS; SET OFF. Seller shall not permit the filing of any mechanic's, materialman's or other lien or claim of any kind against Buyer's lands or improvements on account of labor, materials, fixtures, tools, machinery, equipment or any other thing furnished in connection with this Purchase Order. Buyer shall have the right to withhold final payment to Seller until such time as Seller delivers to Buyer lien waivers or releases and proof of payment in such form and at such times as Buyer shall specify. Buyer shall have the right of set off against Seller for any amount due or to become due to Buyer from Seller against any amount owed by Buyer to Seller.
17. CONFIDENTIALITY. Seller shall not without Buyer's prior written consent, publish or communicate to others the terms and conditions of this Purchase Order or any information or data supplied by Buyer to Seller in connection with it. Seller shall not, without the prior written consent of Buyer, use or allow the use of, whether in writing or in oral form, Buyer's name, trademarks, logos, publications, photographs of Buyer's facilities or equipment, or Seller's and Buyer's business relationship in connection with marketing or business activity. Any violation of this provision shall be deemed a material breach of this Purchase Order.
18. TERMINATION. Buyer may terminate all or any portion of this Purchase Order at any time by giving notice to Seller. In the event of termination of goods, Buyer's liability shall be the lesser of : (i) a reasonable price for raw materials, components, work in progress and any finished units on hand; or (ii) the contract price per finished unit, after giving effect to any discount Buyer would otherwise be entitled to. In the event of termination of services, liability shall be the lesser of : (i) a reasonable price for the services rendered prior to termination; or (ii) the contract price for the services. If any hourly or other time-based rate for services is specified in this Purchase Order, such rate shall be used in determining a reasonable price. Upon receipt of a termination notice, Seller shall, unless otherwise directed, cease work and follow Buyer's directions as to disposal of work in progress and finished goods. THE FOREGOING STATES BUYER'S ENTIRE LIABILITY FOR TERMINATION.
19. GENERAL. Seller shall not assign, transfer or subcontract this Purchase Order without the prior written consent of Buyer, which consent shall not be unreasonably withheld. This Purchase Order shall not be amended, altered or modified except by a single instrument signed by representatives of Seller and Buyer, which instrument must expressly state that it undertakes to amend, alter or modify this Purchase Order. This Purchase Order is the entire agreement between the parties about the goods and/or services described herein and there are no other written or oral agreements that cover the subject matter of this Purchase Order. All remedies of Buyer are cumulative and any remedies stated in this Purchase Order are in addition to and do not exclude any remedies allowed by law. No waiver of any default by either party shall act as a waiver of a subsequent or different default. Section headings are for convenience only and shall have no legal or interpretive effect. In interpreting this Purchase Order, no presumption or inference shall be deemed to arise for or against either party due to the preparation of this document. This Purchase Order shall be governed by the laws of the state in which the goods will be delivered and/or the services will be performed and by the Uniform Commercial Code applicable thereunder.