1. Seller's execution and return of the acknowledgment copy of this purchase order, Seller's failure to object to the contents of this purchase order within ten (10) days of receipt, or Seller's commencement of work on such goods or shipment of such goods as described in this purchase order, whichever occurs first, shall be deemed acceptance of the Purchaser's offer to purchase contained in this purchase order. Any acceptance of this purchase order is limited to acceptance to the express terms of the offer contained herein. 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, but such proposal shall not operate as a rejection of this offer, unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by the Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by the Seller, such acceptance is limited to the express terms contained herein.
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 shall be rejected. This purchase order shall not operate as a rejection of the Seller's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods. This purchase order can only be modified or changed in writing executed by an officer of Purchaser containing specific reference to the number and date of this purchase order.
2. All material and equipment furnished under this order shall be warranted by the Seller against defects, and Seller agrees to repair or replace without charge to Purchaser said material and equipment, or remedy and defects, latent or patent, not due to ordinary wear and tear, or not due to improper use or maintenance, which may develop within one year, such period to begin; (a) In cases involving material from date of acceptance; (b) In cases involving operative equipment, from date such equipment is placed in operation, or within the warranty period set forth in applicable plans and specifications as per DePue Mechanical, Inc. warranty letter, whichever is longer. The warranty shall survive any inspection, delivery, acceptance on payment by Purchaser of the materials or services. Seller warrants that with respect to the articles furnished or services performed hereunder, or both of them, that is has fully complied with the Fair Labor Standards Act, as mended, laws restraining use of convict labor, the Equal Equipment Opportunity and Fair Employment Practices legislation and any regulations issued under the foregoing, and other applicable federal, state and local laws, rules, regulations and executive orders.
3. All material and equipment furnished under this order is subject to the approval of the architect, engineer, or any other disclosed party. Seller shall furnish the required submittal data or required number of samples for approval. In the event approval is not given, this order is cancelled. However, if the approval is not given because of the failure of the Seller to furnish goods in compliance with the plans and specifications, Seller, at Purchaser's option, shall take such steps as necessary to make the goods comply with the plans and specifications, without any cost to Purchaser. In no event, shall Purchaser be liable to Seller for any costs, damages or other charges for any cancelled order, including, without limitation, restocking charges, loss profit, and/or lost overhead.
4. All material and/or equipment furnished hereunder shall be in strict compliance with plans, specifications, and general conditions including all alternates, addendums or revisions applicable to the contract of Purchaser with the Owner or another contractor, and Seller shall be bound thereby in the performance of this contract. Purchaser agrees to make available to Seller, upon request, all applicable contract documents with the Owner or another contractor.
5. Seller warrants that equipment covered by this purchase order to produce capacities or meet design specifications intent and function (1) as called for in the plans, specifications or addenda, (2) as herein set forth, and (3) as published or warranted by the manufacturer for the equipment involved. In the event any equipment does not meet the foregoing requirements, Seller shall immediately on notice replace same or remedy deficiency without expense to the Purchaser, and further shall pay to Purchaser all loss or damage to the extent that the Purchaser is liable under its contract with the Owner or another contractor, provided Purchaser has made available, upon Seller's request, all applicable contract documents with the Owner or another contractor.
6. The materials and equipment covered by this order whether in a deliverable state or otherwise, shall remain the property of the Seller until delivered to the designated location and received by Purchaser with a receipt executed by Purchaser at which time title and risk of loss to any such materials and equipment shall pass to the Purchaser. Any damage to the material or equipment or loss of any kind in transit shall be borne by Seller notwithstanding the manner in which the goods are shipped or who pays the freight or other transportation costs. Purchaser shall notify the Seller as soon as practicable of any damage to material or equipment or any loss occurring in transit.
7. Purchaser assumes no obligation for equipment or materials shipped in excess of this purchase order.
8. The Seller hereby agrees to indemnify, defend and save harmless the Purchaser from the against all claims, loss, damage or expense, including attorney’s fees and other defense costs, by reason of any actual or alleged infringement of any patent or other intellectual property rights arising from the purchase of any equipment or material pursuant to this purchase order or any litigation based thereon covering any equipment or material purchased hereunder.
9. Payment to the Seller is dependent as a condition precedent upon the Purchaser receiving payment from its customer, including any retention.
10. When accepted, this order is not subject to cancellation, price change or reduction by Seller in the amount of deliveries except with written consent of an officer of Purchaser and on the terms and conditions herein.
11. All materials are subject to Purchaser's inspection and approval, and the final inspection and account will be made after receipt at Purchaser's designated destination; if rejected they will be held for disposition at Seller's risk and expense. Any payment on account thereof will be made promptly and refunded by Seller. Any inspection or approval at Seller's plant during or after manufacture shall be provisional only and not constitute final inspection not be construed as a waiver of the foregoing right of inspection and rejection after receipt of same.
12. No charge shall be made for tools, dies, patterns, drawings, etc., required for fabrication of parts unless so stated in this order.
13. All material must be packaged securely.
14. If shipment is not made within time specified, Seller shall notify Purchaser promptly. If Seller fails to deliver any or all of the material, or merchandise, or fails to render services covered by this order within the time agreed, Purchaser reserves the right to purchase elsewhere and charge Seller with loss incurred as a result thereof, or at Purchaser's option to cancel this order as to material or merchandise not delivered and services not rendered, and Purchaser shall be under no obligation to accept or pay for same or compensate Seller for expenses incurred. Nothing in this clause shall affect any other right conferred on Purchaser by law.
15. Contract price includes all charges for taxes of any kind, transportation, cartage, delivery, boxing, packaging, crating and returnable cartons.
16. Seller is responsible for all articles covered by this order until delivery at delivery point designated herein, and shall bear all risks as to rejected articles after notice of rejection.
17. Purchaser reserves the right to change delivery specifications in accordance with its requirements.
18. Purchaser reserves right to countermand this order in the event of strike, flood, riot, war, rebellion, or any or all other contingency unavoidable or beyond its control which could make it impossible to or create an undue hardship to accept delivery of the material, merchandise or services herein ordered.
19. Payment does not constitute acceptance but all materials, merchandise or services are subject to Purchaser inspection and rejection, defective material or merchandise or service not per the specification will be held for Seller's instruction and at Seller's risk. No goods returned as defective shall be replaced without an order.
20. No statement, condition or agreement and no representation or guarantee has been made by any agent, officer or employee of Purchaser in any way affecting the terms hereof. No alternation or modification of this order is varied unless in writing, signed by an authorized executive of Purchaser.
21. To the fullest extent permitted by law, Seller agrees to defend, indemnify and hold harmless Purchaser and each of its shareholders, directors, officers, partners, employees, agents, subsidiaries and divisions (and each of their heirs, successors and assigns) from any and all claims demands, liabilities, suits, causes of action, judgments, costs and expenses, including attorneys' fees and other defense costs, arising, or allegedly arising, from personal injury, including death, property damage, including loss of use thereof, economic loss, or otherwise, due in any manner to any negligent or intentional act or failure to act of Seller or any of its agents, employees or subcontractors as the result of furnishing or sale of goods pursuant to this purchase order, whether any act, error, omission or negligence of any indemnitee contributed thereto shall not bar the recovery of any other indemnitee hereunder.
This indemnification provision is in addition and cumulative to any other right of indemnification or the negligence of any indemnitee contribution which any of the indemnities may have in law, at equity or otherwise and shall survive termination of this purchase order.
For any claims against any person or entity indemnified under this paragraph 21 by an employee of the Subcontractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this paragraph 21 shall not be limited by limitation on an amount or type of damages, compensation or benefits payable by or for Subcontractors under its workers' compensation acts, disability benefit acts or other employee benefit acts.
22. Seller shall maintain commercial general
liability insurance with limits of $2,000,000 general aggregate, $2,000,000 completed operations aggregate, and $2,000,000 each occurrence for bodily injuries, death and property damage, and personal injury resulting from any one occurrence during performance pursuant to this purchase order, including the following coverages and conditions:
.1 Shall name Contractor and any other parties designated by Contractor an Additional Insureds as their interests may appear pursuant to ISO Additional Insured Endorsement CG 2010 (11/85) (or the most recent form of said endorsement, if applicable), including but not limited to the following entities: A copy of such Additional Insured endorsement shall be attached to the Certificate of Insurance, and the endorsement number or designation shall be entered on the Certificate.
.2 Premises-Operations and Independent Contractors;
.3 Products/Completed Operations for three (3) years after completion of the Work;
.4 Broad Form Property Damage;
.5 Contractual Liability;
.6 Collapse, Explosion and Underground Property Damage;
.7 Must be endorsed as Primary and Non-Contributory as to any other insurance of the Additional Insureds;
.8 If the Additional Insureds have other insurance which is applicable to the loss, such other insurance shall be on an excess or contingent basis to the subcontractor's policy;
.9 If the primary/non-contributory wording is not available or provided, a separate Owners & Contractors Protective Liability (OCP) must be provided, listing all the Additional Insureds and with limits equal to $2,000,000 per occurrence and $2,000,000 aggregate;
.10 A Waiver of Subrogation in favor of Contractor shall also be included;
.11 The General Aggregate shall apply on a "Per Project" basis; and
.12 Broad form vendor's endorsement.
23. Rights and remedies reserved hereunder are cumulative and in addition to other rights and remedies at law or equity. No waiver or breach of any provision hereof shall constitute waiver of any other breach or of such provision. This order shall be governed in all respects by the laws of the State of Illinois. Any provisions hereof found to be invalid under Illinois law shall be invalid only with respect to the offending provisions.
24. All claims for monies due or to become due from Purchaser are subject to deduction by Purchaser for any offset from counterclaim arising from this or any other order from Purchaser to Seller.
25. In the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller, or if there be
appointment of assignee for benefit of creditors of Seller or of a Receiver for Seller, Purchaser may cancel any undelivered part of this order without liability.
26. Seller shall furnish to Purchaser, at its request, waiver or waivers of lien (partial or final) or other documents which Purchaser may request in order to comply with the Mechanic's Lien laws of the State of Illinois or any other applicable state.
27. Purchaser reserves the right to retain up to 10% of the purchase price subject to the final payment as specified in the purchaser's contract with General Contractor/Customer/Owner.
28. Seller shall comply with all safety and health requirements of local, state and federal regulatory agencies. Seller shall provide material safety data sheets, as required to comply, with OSHA standards.
29. No part of this purchase order may be assigned or subcontracted without the prior written approval of Purchaser.
30. This purchase order and any documents referred to therein constitute the entire agreement between the parties. The terms and conditions of this purchase order supersede any prior agreements, representations, inducements or understandings of any kind or nature between the Seller and Purchaser.
31. Under no circumstances, will Purchaser be liable to Seller for any interest, service charges or other charges due to late payment of any invoice of Purchaser.
32. In no event will Purchaser at any time be liable to Seller for special, incidental or consequential damages, including, but not limited to, loss of profits, loss of revenue, claims of customer or for any other loss of any nature, whether based in contract, tort, negligence, strict liability or otherwise and arising from any cause whatsoever.
33. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder or for any breach of the agreement resulting from this purchase order must be commenced by Seller within one year after the cause of action has accrued.
34. In the event this purchase order covers the purchase of operative equipment, Seller agrees that for a period of three (3) years after the equipment is placed in operation or within three (3 ) years after the end of the warranty period set forth in the applicable plans and specifications, whichever is later, that it, and none of its subsidiaries, divisions, affiliates, agents, distributors, dealers or representatives shall solicit agreements or orders, or enter into agreements or orders, for the repair, service or maintenance of any of the equipment purchased under this purchase order. In the event Seller or any of its subsidiaries, divisions, affiliates, agents, distributors, dealers or representatives shall solicit agreements or orders, or enter into any agreements or orders for the repair, service or maintenance of any of the equipment purchased under this purchase order, Seller shall indemnify, hold harmless and be liable to Purchaser for any loss or damage Purchaser sustains, or has sustained, as a result of such activity, including, without limitation, lost profits and lost income.
35. Unless otherwise noted all equipment and material is in accordance with plans and specifications including all addendums.
36. No escalation will be allowed throughout the duration of this contract unless approved by the contractor.
37. If Subcontractor/Supplier is or hereafter begins performing any work for Contractor other than the Work under the Subcontract, and if the unpaid balance of the price becomes insufficient to complete such Work or compensate Contractor for any damages or deficiencies by the Subcontractor/Supplier in the performance of the other work, Subcontractor/Supplier consents and agrees to
allow Contractor, in its sole discretion to set off any Contractor's claims against any funds due, or it should become due, subcontractor/Supplier under any other agreement with Contract or any Subcontract on any other project.
38. Invoices will be paid (14) working days after receipt of payment by the Contractor from the Client.
39. This Agreement supersedes any and all written representatives, inducements, or understandings of any kind or nature between the parties hereto.
40. All Equipment & Material supplied must be in strict accordance with the Plans & Specifications issued specific to this Project.
41. If Vendor is, or hereafter begins, performing any work for Contractor other than the Work under the Vendor and the unpaid balance of the Price becomes insufficient to complete such Work or compensate Contractor for any damages or deficiencies by the Vendor in the performance of the other work, Vendor hereby consents and agrees to allow Contractor, in its sole discretion and judgment, to set off any of Contractor's claims against any funds due, or which may become due, Vendor under any other agreement with Contractor, or any vendor on any other project. No refusal or failure of Contractor to exercise its rights hereunder shall constitute the basis of any right or claim against Contractor.
42. All extra or changed work within the general scope of the Subcontract must be processed as a written change order through Contractor. Contractor's signature of any overtime ticket or time and materials voucher shall constitute confirmation that the Work was performed and is not authorization or agreement that the work is extra, absent a separate writing authorizing the Subcontractor to perform the work as extra.or that the listed amount of time or materials, in fact, were employed. Subcontractor agrees that
performance of any extra or changed work within the general scope of the Subcontract by Subcontractor directly for Owner is a material breach of this Subcontract.