Purchase Order Terms & Conditions
1. Contract Documents. Seller agrees that the supply of materials under this Agreement shall conform to all applicable terms, conditions, or requirements of the prime contract with the General Contractor or Owner regarding the Project and all plans, specifications, general and supplemental conditions, and other documents referenced therein and/or attached as addenda (collectively referred to herein as the “Contract Documents”) which are incorporated herein by reference.
2. Inspection. Goods delivered are subject to inspection, testing and approval by Buyer or its agents before acceptance. Seller expressly warrants that all goods will conform in all respects to the Contract Documents, and that the goods delivered hereunder will be of good quality, material and workmanship, merchantable and free from defects. This warranty and other warranties of Seller under this Agreement shall survive any inspection, delivery, acceptance or payment by Buyer of the goods or services. Failure of Buyer to inspect shall not impair Buyer’s right to reject nonconforming materials.
3. Nonconforming Goods. All goods not in full and complete compliance with this Agreement or the Contract Documents shall be deemed nonconforming goods, and Seller shall be liable for any and all damages of whatsoever nature and kind arising from the delivery of such nonconforming goods.
4. Price. Prices reflected in this Agreement shall include all taxes and duties of any kind levied by federal, state or municipal authorities which either party is required to pay with regard to production, sale, or use of the specified materials. Prices also include all charges for packing, loading, unloading and shipping. Prices are not subject to increase as a result of market changes without an agreement in writing by Buyer. Buyer has the right to withhold from payments otherwise due to Seller amounts sufficient to satisfy backcharges by Buyer against Seller under this Agreement. Invoices not received by Buyer within sixty (60) days of shipment shall not be due and payable.
5. Terms and Acceptance. This Order becomes a contract on the earlier of (1) when a signed acknowledgment is received by the Buyer, (2) when Seller begins shipment according to schedule of all or any portion of the goods covered by this Agreement, or (3) UNLESS SELLER GIVES WRITTEN NOTICE TO BUYER THAT IT OBJECTS TO THE CONTENTS OF THIS PURCHASE ORDER WITHIN TEN (10) DAYS OF RECEIPT BY SELLER, THEN SELLER IS IN AGREEMENT TO ALL TERMS OF THIS PURCHASE ORDER. Otherwise, regardless of any purchase order, invoice, credit application or other document delivered by Seller to Buyer, the Seller shall be deemed to have accepted the terms and conditions set forth herein and shall be fully bound thereby. It is a condition of this Agreement that any provisions printed or otherwise contained in any acknowledgment hereof, inconsistent with or in addition to the terms and conditions herein stated or contained in any alteration to this Agreement, shall have no force or effect and shall not constitute any part of this contract. This Agreement contains the entire understanding of the parties, and failure of either party to enforce any of its rights
hereunder shall not constitute a waiver of such rights or of any other rights hereunder.
6. Schedule of Work. Time is of the essence to this Agreement and Seller agrees to perform its work and deliver the specified goods in accordance with the Delivery Dates. All deliveries will be coordinated with Buyer’s Project Manager. Weekend and after hour deliveries will be made at Buyer’s request at no additional charge. Seller agrees to continue performance of the Work in the event of a dispute or controversy regarding any claims Seller may have. Failure to proceed shall constitute a material breach of the Purchase Order regardless of the ultimate decision on the dispute, it being understood and agreed that any controversy between the parties shall not be deemed a basis to delay or suspend the Work, unless directed otherwise by Buyer. If Seller’s performance under this Purchase is delayed, altered, rescheduled, interfered, or in any way extended, whether the cause for such be due to acts or omissions of Buyer or any third party, and be they avoidable or unavoidable, it is agreed that Buyer shall not be liable for any costs or damages so incurred by Seller. However, Seller may be granted an appropriate time extension to perform on such grounds only, and subject to all requirements and conditions, as are granted to Buyer by General Contractor or Owner. The extension of Buyer’s time to perform by the General Contractor or Owner shall be a condition precedent to Seller’s right to any extension of time to perform under this Purchase Order. Seller’s sole remedy for any delay shall be an extension of the time to perform, and Seller shall in no event be entitled to any compensation for any delays except for Buyer’s granting of justifiable time extensions.
7. Changes. Any change to this Agreement must be in writing and signed by both parties in order to be effective. Seller shall not make any change in the products to be delivered or the prices quoted herein without written direction of Buyer’s authorized representative (to be designated by Buyer in writing), which written direction is a condition precedent to Seller’s recovery of any compensation beyond the amounts specified herein. Seller agrees to continue performance under this Purchase Order, including changed, extra or disputed work, and shall proceed in accordance with the directive of Buyer, under protest, in the event of a dispute or controversy. Failure to proceed as such shall constitute a material breach of the Purchase Order, regardless of the ultimate decision on the dispute, it being understood and agreed that any controversy between the parties shall not be deemed a basis to delay or suspend Seller’s performance, unless directed otherwise by Buyer. Except as otherwise agreed, Seller shall not be entitled to additional compensation or time for (a) delays or disruptions or any kind related to the coronavirus Covid-19 pandemic, which is ongoing as of the date of the execution of this Purchase Order; (b) changes in the market prices or conditions; or (c) Seller’s financial inability to perform its obligations hereunder.
8. Insurance. Seller bears all risk of loss of the goods until acceptance by Buyer. Seller shall insure goods at full replacement cost and shall carry liability insurance covering the Seller’s duties of indemnification under this Agreement. Seller shall advise Buyer as to any goods under this Agreement which require that information be provided to employees under the OSHA “Right to Know” Hazard Communication Standard.
9. Assignment. Any assignment of this Agreement or any right hereunder without the written consent of Buyer is void. No assignment of this Agreement by Seller will release Seller from liability for any obligations and liabilities under this Agreement unless Buyer’s written consent to such assignment expressly grants such a release. Nothing in this Agreement nor any provision of the Contract Documents shall impair Buyer’s right at any time to freely assign any or all of its rights under this Agreement to any party.
10. Warranty. Seller warrants to Buyer that all materials delivered under this Agreement shall be free from all defects, shall be of the quality specified, shall be fit and appropriate for the purpose intended, and shall conform to any applicable requirements of the Contract Documents. Seller warrants the goods against all deficiencies and
defects in materials and/or workmanship as called for in the Contract Documents. Seller agrees to satisfy at no cost such warranty obligations which arise within the warranty period established in the Contract Documents.
11. Termination by Buyer. If Seller fails to commence and satisfactorily continue correction of any default hereunder within forty-eight (48) hours after demand by Buyer to cure such default, the Buyer may terminate this Agreement for default. Buyer may, upon default, in addition to all other rights and remedies, purchase substitute items or services elsewhere and hold Seller liable for all excess costs incurred. If, after notice of termination, it is determined for any reason that Seller was not in default, or that its default was excusable, or that Buyer was not entitled to the remedies against Seller provided herein, then Seller’s remedies against Buyer shall be the same as and limited to those afforded Seller in the Termination for Convenience section set forth below.
12. Termination for Convenience. Buyer, for its convenience, may by written order terminate or suspend all or any portion of this Agreement. In the event of such termination or suspension, Seller shall accept return of undamaged materials and seek to obtain credit or substitute buyers for such materials. Buyer shall only be liable to Seller for the Agreement price for materials received and unreturned. Buyer shall not be liable to Seller for loss of anticipatory profits or consequential damages.
13. Indemnification. To the fullest extent permitted by law, Seller shall indemnify, defend, and hold harmless Buyer and all of its agents and employees from and against all claims, damages, losses and expenses of whatsoever nature and kind, including but not limited to attorneys’ fees, arising out of or resulting from any act or omission of Seller or its agents or employees in the fabrication and/or delivery of the goods described by this Agreement, so long as such loss is not attributable solely to the negligence of a party to be indemnified hereunder.
14. Governing Law and Dispute Resolution. Unless otherwise agreed or prohibited by law, this Agreement shall be governed by the laws of the State of Tennessee, without regard to its choice of law provisions. Buyer, at its sole option, shall have the right to require Seller to arbitrate any and all claims, disputes and matters in question arising out of, or relating to, this Purchase Order, or the breach thereof. Any arbitration held under this provision shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. All disputes concerning the arbitrability of any such claim, dispute or matter or the enforceability or scope of this agreement to arbitrate shall be subject to the same binding arbitration. The parties agree that the Purchase Order involves interstate commerce and this agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act, U.S. Code, Title 9. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. A demand for arbitration shall be filed in writing with the other party to the Purchase Order and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim has arisen and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim would be barred by the applicable statute of limitations or statute of repose. To the extent disputes between Buyer and Seller involve, in whole or in part, disputes between Buyer and Owner and/or General Contractor, disputes between Buyer and Seller shall be decided by the same tribunal and in the same forum as disputes between Buyer and Owner and/or General Contractor (be it litigation or arbitration as set forth in the Prime Contract). In the event the provisions for resolution of disputes between Buyer and Owner and/or General Contractor do not permit consolidation or joinder with disputes of third parties, such as Seller, resolution of disputes between Buyer and Seller involving, in whole or in part, disputes between Buyer and Owner and/or General Contractor shall be stayed pending conclusion of any dispute resolution proceedings between Buyer and Owner and/or General Contractor. Except as otherwise agreed, any arbitration hearing or litigation shall be held in the location of the Project. As a condition precedent to any arbitration proceeding or litigation, the parties agree to submit to a non-binding mediation proceeding with the mediator chosen by mutual consent and the associated costs shared equally. Seller and Buyer agree that Buyer shall be entitled to recover its legal expenses, including its reasonable attorneys’ fees, paralegal fees and any other expenses incurred as a result of such litigation or arbitration.
July 20, 2022