Purchase Order Terms and Conditions for Good and Services

Purchase Order Terms and Conditions for Goods and Services

Volumetric Building Company, including any affiliated entity thereof (“Buyer”) accepts Vendor’s offer to provide materials, equipment and/or labor based on the following terms and conditions:

1. Acceptance: This Purchase Order (“Order”) is for the purchase and delivery of materials or equipment (“Goods”) and/or performance of labor (“Services”), (collectively, “Work”). Vendor is required to sign and return this Order to Buyer within five (5) days of the date specified on the face page of this Order. Any Order not signed and returned to Buyer within such timeframe is automatically, without notice or confirmation,rescinded, andBuyer shall have no further commitment or obligation to Vendor. By acceptance of this Order, Vendor agrees to be bound by, and to comply with: (i) all these terms and conditions, including any amendments signed by authorized representatives of Vendor and Buyer, (ii) the requirements and Work specified on the face page of this Order and (iii) (as applicable) the Workincorporated by reference and attached hereto as “Exhibit A”(collectively, “Terms”).Buyer reserves the right to terminate any Order, without penalty or expense, prior to Vendor’s acceptance. Any Vendor terms and conditions different from or in addition to these Terms, contained in any Vendor offer or proposal or Buyer’s acknowledgment of same, irrespective of Buyer’s signature or actions, will not be binding on Buyer.
2. Delivery, Performance, Default: TIME IS OF THE ESSENCE. Vendor warrants and represents that it has the experience and skills to perform the Work. If Vendor fails to perform, in whole or in part, the Work, or fails to make progress to complete the Work in accordance with the terms of this Order, Vendor shall be in default of this Order. If Vendor does not cure such failure within seven (7) days (or a longer period as provided in writing by Buyer) after receipt of notice from Buyer specifying such failure, this Order will be terminated and Vendor shall be liable to Buyer for any and all additional charges, cost and expenses incurred by Buyer to order, deliver, dismantle, remove, repair and return non-conforming Goods (all as applicable) or have the Services performed or reperformed. If Vendor for any reason anticipates a delaymeeting the required delivery date, or in meeting any of the other requirements of this Order, Vendor will promptly notify Buyer in writing. Buyer may require expedited or express delivery and/or require Vendor to work additional shifts or hire additional personnel and all charges resulting from the premium transportation, additional labor and overtime pay shall be the sole responsibility of Vendor. The rights and remedies of Buyer provided in this Section 2 are not exclusive and are in addition to any other rights and remedies provided by law or in equity. Deliveries are to be made to Buyer’s designated delivery location during specified receiving hours. Delivery at any other time or location will not be accepted and is at Vendor’s risk.
3. Price, Taxes: No higher or additional charges of any kind will be allowed unless specifically agreed to in writing by the Buyer. The pricing stipulated herein includes all state, municipal, local taxes, and fees applicable to and arising out of the Work (unless Buyer is otherwise exempt). Vendor shall delineate all applicable taxes as separate line items on its invoice.
4. Invoices, Payment: Invoices shall be submitted upon Vendor’s completion and Buyer’s written acceptance of the Work. Payment for Goods is subject to actual quantities received,verified by packaging slips, and signed for by Buyer. Any invoice disputes for quantity of Goods received shall be resolved by the quantity stated on packaging slip signed by Buyer. If the packaging slip was not signed by Buyer or is not otherwise available, such invoicing dispute shall be resolved in favor of Buyer. Each invoice shall contain the Purchase Order Number, item number, description of Work, quantities, unit prices, date(s) completed and total price including all taxes and fees. Payment to Vendor shall be made 60 days from receipt of a correct invoice. Buyer is entitled to set off any amount owed Vendor against any amount payable by Buyer in connection with this Order or any other Order. A statement of account is required monthly which lists all charges and credits for the current month and shows the beginning and ending balance for Buyer’s account. Any invoices not received within ninety (90) days of Buyer’s acceptance of Work shall be deemed waived.
5. Packaging and Transportation: Vendor shall package all Goods toprovide safe and undamaged arrival at Buyer’s designated location at no additional cost to Buyer. Delivery of Goods shall be FCA, Vendor’s facility, Incoterms 2020®. Title to Goods shall pass to Buyer at the same time and location that risk of loss passes to Buyer as per the agreed delivery term. Unless otherwise agreed to by the parties, in writing, Vendor shall transport Goods using Buyer’s designated carrier(s) as provided by Buyer.
6. Inspection: All Work is subject to Buyer’s inspection and rejection not withstanding prior payment. At Vendor’s expense, rejected Goods will be returned to Vendor for, at Buyer’s sole option, replacement, or full refund; rejected Services will be reperformed by Vendor to Buyer’s satisfaction and, if not, shall not be subject to payment.
7. Warranties: Vendor warrants that all Goods shall be new, free from all defects, merchantable, fit for the particular purpose for which they are to be used, free from infringement of Intellectual Property, copyright, patent, trademark rights, and are in strict conformance with all specifications, drawings and other requirements set forth or referenced in this Order. All Services shall be performed in a manner acceptable to Buyer and in accordance with generally accepted industry standards. The prices for the Work under this Order are not less favorable than those currently extended to any other customer for the same or similar Work in equal or lesser quantities. All Work shall be warranted for a period of twelve (12) months from Buyer’s acceptance of the Work.
8. Indemnification: Vendor shall indemnify, hold harmless and defend Buyer and its affiliates from and against any or all third party injury or death to persons, property damage, claims, demands, attorneys’ and investigative fees, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property or other rights, and from and against all consequential, incidental or punitive damages of every kind whatsoever, arising out of, resulting from, or in any way connected with the Work, any breach by Vendor of any of its obligations hereunder, or any negligence or omission of Vendor, its employees, workers, subcontractors, or suppliers.
9. Changes: Buyer, at any time, will have the right to make changes to this Order including, but not limited to, drawings, designs, configurations, specifications, quantities, delivery schedules or delivery location. If any such changes cause an adjustment in the cost and/or performance time of the Work, an equitable adjustment will be made, and this Order will be modified accordingly. No changes shall be made by Vendor until an amended Buyer Purchase Order is received by Vendor.
10. Compliance with laws: Vendor represents and warrants that it is in compliance with all federal, state and local laws related to the Work and that it will obtain and pay for any and all licenses, permits, inspections and approvals required by any governmental agency having jurisdiction over the Work.
11. Confidential or Proprietary Information: Vendor will keep confidential any technical, process, operational, economic, or other information provided by Buyer, observed by Vendor, or derived from drawings, specifications and other data furnished in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer's prior written consent. Vendor is strictly prohibited from taking any photos or videos inside Buyer’s office or manufacturing facilities and that of Buyer’s employees, its client’s employees, or their respective agents and invitees.
12. Work on Buyer's premises: If Vendor's Work under this Order requires Vendor to be on Buyer or Buyer’s client premises, Vendor will take all precautions to not disrupt Buyer’s operations, prevent any injury to persons or damage to property, and will comply with all Buyer and Buyer’s client policy and procedures.
13. Insurance: Vendor will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities herein), Automobile Liability covering all owned and non-owned vehicles, Employers' Liability, as well as Workers' Compensation insurance each with limits not less than $1,000,000 per occurrence. Vendor will furnish to Buyer a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Buyer as an additional insured on General Liability and Auto policies, stating that such coverage and will not be canceled or materially changed without thirty (30) days prior written notice to Buyer.This Order is not intended to secure design, engineering, architectural or other professional services from Vendor (“Professional Services”) however, to the extent that Vendor receives and accepts an Order from Buyer for Professional Services. Vendor shall provide and maintain Professional Liability Insurance against Errors and Omissions, including coverage for bodily injury and property damage with limits not less than $5,000,000 per occurrence.
14. Termination: Buyer may terminate all or any part of this Order for convenience at any time by written notice to Vendor. Upon notice of termination, Vendor shall stop all work and provide prompt notice to and cause all of its suppliers or subcontractors to cease all related work and services.There shall be no charges for Buyer’s termination of Orders for standard Goods. Vendor shall not be compensated in any way for Goods ordered or transported, or services provided after Buyer’s issuance of termination, nor for any costs incurred by or from Vendor’s suppliers or subcontractors related to Buyer’s termination of Order. This Order shall terminate automatically if Vendor becomes insolvent or the subject of any bankruptcyor debtor proceeding.
15. Miscellaneous:
    (a) Assignment of this Order or any payment due or to become due, without the written consent of the Buyer, will be void.
    (b) Each of the rights and remedies of Buyer shall be cumulative and in addition to any other rights remedies provided in law or equity.
    (c) Vendor will not use Buyer's name or logo in publicity, advertising, or similar activity, except with Buyer's prior written consent.
    (d) The terms and conditions of this Order will be interpreted under and governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law principles. All legal actions arising out of this Order shall be filed and conducted exclusively in a federal or state court in the Eastern District of Pennsylvania. In the event the Work is being performed in the state of California, the terms and conditions of this Order will be interpreted under and governed by the laws of the state of California without regard to its conflict of law principles. All legal actions arising out of this Order shall be filed and conducted exclusively in a federal or state court in San Joaquin County, CA.
    (e) Disputes arising under this Agreement will be resolved by the parties through good faith negotiations. Any dispute not so resolved will be handled through litigation unless the parties agree to binding arbitration.
    (f) Vendor’s obligations under Sections 6, 7, 8, 10, 11, 12, and 13 will survive any termination of this Order.
    (g) The failure of Buyer to enforce at any time or for any period any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Buyer thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
    (h) All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order shall be delivered in writing to the respective party at the address on the face page of this Order.
    (i) Any provision of this Order that is, in fact, illegal, unenforceable, or inoperative, shall not affect the enforceability of any other provision(s) in this Order.
    (j) Section titles are solely for convenience and shall not affect the meaning or construction of any section.
    (k) In the event Vendor has executed a Master Subcontract Agreement (“Agreement”) with Buyer, this Order is subject to the terms and conditions of the Agreement and all other pre-printed, boilerplate terms and conditions made part of this Order become null and void The Agreement and the Project specific Exhibits stated on the face of this Order and attached hereto are incorporated by reference herein.
    (l) This Order, along with such documents expressly incorporated by attachment or reference, is the complete and exclusive statement of the terms related to this Order.