Construction Related Terms and Conditions
VARIANCE. Any departure from the Project Contract Documents including Plans and Specifications will be Seller's sole responsibility unless Buyer is notified in writing of such departure and Buyer obtains Owner's approval in writing.
QUALITY CONTROL. Seller shall provide and maintain all quality control, including tests and test reports, required for all material covered by this Purchase Order.
ACCEPTANCE. This Purchase Order may be accepted only on the exact terms and conditions set forth and on no other terms and conditions. These terms and conditions supersede the terms and conditions of Seller's proposal and acknowledgement form.
MODIFICATION OF TERMS. Nothing typed or printed in this Purchase Order shall modify any of the printed terms and conditions unless specific reference is made to the "terms and Conditions" sought to be changed. Paragraph titles herein are for convenience and shall be disregarded in the interpretation of this Purchase Order.
CHANGE OF PRICE. Unless otherwise specified, prices and terms are firm for duration of indicated project. Buyer may make deductions for claims arising from this Purchase Order or other transactions with Seller.
SHIPMENT. On shipments, Seller shall promptly notify Buyer of the shipping point and the initial carrier. If Buyer is to pay freight charges, routing must be approved by Buyer before shipment is made. Discount periods will be calculated from the date of receipt of specified purchases or the date an invoice complying with the terms of this Purchase Order is received by Buyer, whichever is later.
DELIVERY. Deliveries shall be made at the time and in the manner specified. Time is of the essence. If deliveries are not made at the time specified, Buyer reserves the right to modify the delivery item, to cancel or to purchase elsewhere and hold Seller accountable for the costs thereof. All packing cartage charges and taxes are included in the price. Price additions will not be allowed by Buyer unless otherwise specified on the face hereof. If deliveries are so far behind the schedules specified in this Purchase Order as to make it necessary for Buyer to request Seller to make shipments by other means, it is understood that Seller will pay the increased transportation cost. The F.O.B. term used in this contract is a delivery term, but risk of loss shall remain with Seller until acceptance by Buyer at the delivery destination. There will be no acceptance of the purchase regardless of inspection or payment until the price is accepted and approved by Owner if Owner's project documents are made applicable to this Purchase Order. Notwithstanding the foregoing portions of this paragraph, no delivery shall be made without at least 24 hours advance notice being given by Seller or Buyer.
CANCELLATION. Buyer has the right to cancel this and any or all orders or contracts between Seller and Buyer or to reduce the quantities of the purchase to be delivered hereunder in the event of (a) a breach by Seller of any of the terms hereof, including any warranty made in connection with the purchase ordered hereunder or (b) any allegation that the purchase furnished hereunder infringes any patent, trademarks or copy right, violates any statute, ordinance or administrative order, rule or regulation or (c) cancellation or deletion of such purchases from Buyer's contract with Owner if Owner's project documents are applicable to this Purchase Order.
ADDITIONAL WARRANTIES. Seller warrants that he is a merchant as defined in the Uniform Commercial Code, that the purchases intended and that the purchases are merchantable, of good quality and free from defects, whether patent or latent, in material, workmanship and design. No warranty shall be deemed waived by reason of any inspection, acceptance or payment therefore. Each warranty expressed or implied will remain in effect for the period prescribed by law or the period prescribed by project contract documents, whichever is longer.
CHANGES. If project contract documents are made applicable to this Purchase Order, Seller agrees that, should any change in such contract make it advisable or necessary that work under this Purchase Order be changed or discontinued, Buyer shall have the right to change or rescind this Purchase Order upon three days' notice in writing. If this Purchase Order is cancelled, Seller shall receive payment for material purchased and work in process and finished work on hand, but only to the extent that Buyer is compensated therefore by Owner.
INSTALLATION. In the event that the purchases ordered hereunder require installation services of Seller's representative and seller furnishes the same, either with or without charge, that individual shall not, while performing his duties with respect to the purchases covered by this Purchase Order, he deemed an agent or employee of Buyer, and Seller will have full responsibility for all acts and missions of such party including, but not limited to, liability for any payroll taxes or contribution imposed by any federal or state law.
CONFIDENTIALITY. Any articles made according to Buyer's design or developed for Buyer at Buyer's direction or any designs supplied by Buyer or copies thereof shall not be furnished to others without Buyer's consent. This Purchase Order is strictly confidential, and any and all publicity or release of any information contained herein or about this project shall be by the Owner only.
INDEMNITY. Seller agrees to hold Buyer harmless from and to protect, defend and indemnify Buyer against any and all loss, liability, damage (whether for personal injury, property damage, or direct or consequential damage or economic loss), costs, attorneys' fees and expenses arising from or suffered or incurred or in any manner connected with (a) any injury to person or property caused in whole or in part by any act or omissions by Seller, Seller's agents or employees in the furnishing of articles or materials or in the performance of work hereunder, except those injuries and damaged caused solely by Buyer while executing this Purchase Order or making delivery hereunder, (b) any of the purchases called for by this Purchase Order or the use of such purchases, or infringement of any patent, copyright, trademark, trade name, brand or slogan, or of unfair competition or any adverse statutory or nonstatutory right; (c) regulations; or (d) any breach of Seller or any term of this Purchase Order.
CONFORMITY WITH EXISTING LAWS. Seller agrees to comply with all federal, state and local laws, executive orders, codes and regulations effective where this Purchase Order is to be performed. Where so required, all provisions of laws, rules, regulations and executive orders are hereby incorporated into and made a part of this order. This includes, but is not limited to, the provisions of the Equal Employment Opportunity Act and Executive Order 11246, particularly Section 202 thereof, if applicable. Further, by executing this Purchase Order, Seller warrants to Buyer that it has complied with the requirement of the Occupational Safety and Health Act of 1970, the Fair Labor Standards act and of all laws, rules, regulations and executive orders related thereto.
WAIVER. No waiver by Buyer of any breach of this Purchase Order or any other agreement by the Seller or the failure of Buyer at any time to exercise a right or privilege granted to it herein shall be deemed to constitute a waiver of any subsequent breach of agreement or any other right or privilege.
CLAIMS BY OR AGAINST OTHER SUPPLIERS OR SUBCONTRACTORS. Should Seller have a claim against Buyer or any other supplier or subcontractor of Buyer by reason of the acts or omissions of such other supplier or subcontractor, then Seller shall make claims directly against such other supplier or subcontractor and shall be assigned and entitled to assert all rights that Buyer may have against such other supplier or subcontractor in connection with said claim. Said assignments shall be for the limited and express purpose of pursuing Seller's claim and, in consideration thereof, Seller agrees to make no direct claim and expressly waives all rights against Buyer for any act or omission which may reasonably be attributed to another supplier or subcontractor.
ARBITRATION. If arbitration or litigation is conducted by Owner and Buyer concerning any dispute between them which likewise invoices an issue in dispute between Buyer and Seller, then Seller, if permitted by the arbitrators or the court, shall be allowed, as part of said arbitration or litigation, to offer the arbitrator's award or the court's judgment directly or by implication addresses any issue in dispute between Buyer and Seller, whether or not the litigation or arbitration between Owner and Buyer is commenced or completed before or after commencement of litigation or arbitration between Buyer and Seller on the same or related issues. Any pending litigation or arbitration between Buyer and Seller shall be stayed immediately upon commencement or related proceedings between Owner and Buyer.
Except as provided in the first paragraph of this Section 18 and except as to any matter which has been waived by or conclusively determined pursuant to other term of the Contract Documents, all claims, disputes and other matters in question arising out of, or relating to, this Purchase Order, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. At the demand of either party hereto, any such arbitration will be consolidated with related arbitration proceedings involving Buyer, Engineer, Owner or other contractors unless prohibited by the terms of or parties to said other proceedings. The forgoing agreement to arbitrate shall be especially enforceable under the controlling arbitration law. The award rendered by the arbitrator shall be final, and the judgment may be entered upon it in accordance with the applicable law in any court having jurisdiction thereof.
The demand or arbitration in no event shall be made after the date when institution of legal or equitable proceedings based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
WAIVER OR LIENS. Seller hereby waives, releases and relinquishes all rights to file any mechanic's or contractor's lien or other encumbrance against Owner's project, the real and personal property related thereto or any monies held by or on behalf of Owner.
FINAL PAYMENT. Acceptance by Seller of final payment of the Purchase Order price shall be a release of Buyer or all claims and liabilities to or against Seller or anything done, furnished or related to the work of this Purchase Order or for any net or neglect of Buyer or its representatives.