Terms and Conditions of Sales
Sale of any equipment or services described herein at the prices indicated is expressly conditioned upon the terms and conditions set forth below. Any order for or any statement of intent to purchase any such equipment or services, or any direction to proceed with engineering, procurement, manufacture or shipment, shall constitute assent to said terms and conditions and a representation that the purchaser is solvent. Acceptance of this proposal is strictly limited to the terms and conditions contained herein. Any additional or different terms or conditions set forth in any communication from the Purchaser are not agreed to by Tom Barrow Co., hereinafter referred to as “Seller”, and shall not be effective or binding unless agreed to in writing by an officer of the Seller . Purchaser is defined as the person, either directly or through an agent, accepting this proposal. Sellers receipt, acknowledgement or acceptance of Purchasers forms are for Sellers internal use and shall not alter the terms of Sellers forms, including this proposal.
PROPOSALS – All proposals for sales and/or services, unless otherwise specified upon the face are subject to acceptance within thirty days only. All proposals, which include equipment manufactured by others, are subject to the same conditions extended to Seller. In the event of a conflict between the terms extended to Seller and the terms contained herein, the terms contained herein shall control. Any numerical, clerical or stenographic errors appearing in Tom Barrow Co. proposal may be corrected at any time by Seller.
DELIVERY – Shipping dates are approximate and are based upon shipping promises given us by the manufacturer and are contingent upon prompt receipt of all necessary information. The Seller shall not be liable for delays in delivery or in performance or failure to manufacture or deliver, due to (1) causes beyond its control, including errors or delays in manufacture or by the manufacturer or (2) acts of God, acts of the Purchaser, acts of civil or military authority, priorities, fires, strikes, or other labor disturbances, floods, epidemics, war, riot, delays in transportation or car shortages, or (3) inability on account of causes beyond its reasonable control to obtain necessary labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery or of performance shall be extended for a period equal to the time lost by reason of delay.
FIELD SERVICE & STARTUP – Services of factory authorized field service personnel for installation supervision, startup and adjustment and for subsequent technical assistance may be purchased at rates determined by Seller plus travel and per hour if not specifically quoted. Field Service is provided upon a “best efforts” basis and Seller assumes no responsibility and shall not be liable for any direct, incidental, consequential, special or contingent damages or expenses arising directly or indirectly from such Service. Purchaser agrees to defend and indemnify Seller and its employees, officers and owners and to hold them harmless against all claims, losses, demands, liabilities and expenses (including attorneys fees) resulting from claims arising from such Field Service, regardless if such claims, losses demands liabilities and expenses (including attorneys fees) are caused in part by Seller, except that Purchaser will not be liable under this section for claims, losses, demands, liabilities and expenses (including attorneys fees) caused or resulting from the sole negligence of Seller.
ELECTRICAL EQUIPMENT – Equipment includes only the electrical components referred to in the Proposal. Charges arising from any local, state or provincial regulations necessitating changes to electrical equipment are to be paid by the purchaser unless equipment has been specifically quoted to meet these regulations.
CLAIMS – Any claim of defects, shortages, nonconformities, or errors must be made in writing to Seller by the purchaser within five (5) days after receipt of shipment. The writing must specifically describe the errors, nonconformities, defects or shortages in the goods or delivery thereof. Failure to deliver the writing establishes delivery, acceptance and responsibility for prompt payment and waiver of all claims against Seller and expressly waives the Purchasers right to revoke acceptance. No back charge or retention of monies by purchaser shall be permitted without prior written approval from the seller.
PAYMENT AND TERMS TAXES – Any tax or other governmental charge now or hereby levied upon the production, sale, use of shipment of goods ordered or sold will be charged to any paid for by the Purchaser. Such taxes are not covered in the Seller’s price unless expressly so quoted.
TERMS OF PAYMENT – Unless other terms are specified, payment shall become due 30 days from date of invoice. If shipment is delayed by the Purchaser, date of readiness for shipment shall be deemed to be date of invoice for payment purposes. Past due amounts shall accrue interest at the rate of 1-1/2% per month including post-judgment amounts or at the highest rate allowed by law, whichever is less. If, in the Seller’s judgment, the Purchaser’s financial condition at any time does not justify the terms specified, the Seller may require full or partial payment as a condition to commencing or continuing manufacture or service in advance of shipment, or if shipment has been made seller may recover equipment from the carrier. Title to the goods described herein shall not pass to Purchaser until payment is made in full. Customer hereby assigns the right to payment from third persons and grants Seller a security interest in the goods described herein with authority to file UCC forms.
FREIGHT – Unless otherwise stated, prices are F.O.B. shipping point. Delivery of the goods to a common carrier or a licensed trucker or Purchasers driver shall constitute delivery to Purchaser, and all risks of loss or damage in transit together with any loss or damage associated with any delays, shall be borne by Purchaser.
CANCELLATION – The Purchaser may cancel his order only upon written notice and upon payment to the company of reasonable and proper cancellation charges, as determined by seller.
CHANGES – Changes in the specifications on which Purchaser’s order covered by this Proposal is based will not be accepted unless requested in writing and any change in price is agreed to in writing.
PATENTS – Tom Barrow Co. does not design or manufacture any equipment and waives any claims related thereto against Seller, including any claims for patent infringement.
LIMITED WARRANTY – Seller is a reseller of goods and provides no warranty for the goods sold. Only those warranties and guarantees offered by the manufacturer of any equipment or goods sold by Seller are offered to the Purchaser and only to the extent that they are transferable to the Purchaser; copies of these warranties and guarantees will be furnished by Seller upon written request by the Purchaser. Seller makes no other warranties, express or implied, including, but not limited to, warranty of merchantability, warranty of fitness for a specific purpose or the condition of the goods, all of which are specifically excluded. This limited warranty is exclusive and is in lieu of all other warranties, express, implied or statutory. Seller does not authorize any person or entity to assume for it any other liability for the sale of the goods described herein.
LIMITATION OF LIABILITY – The Seller’s liability on any claim of any kind, including negligence, for any loss or damage, including direct, general, special, incidental and consequential damages, arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, inspection, repair, operation, service, or use of any equipment covered by or furnished under this contract shall in no case, exceed the price allocable to the equipment or unit thereof which gives rise to the claim. This shall be the sole and exclusive remedy against Seller. In no event whether as a result of breach of contract or warranty or alleged negligence or any other claim at law or in equity, shall the Seller be liable for special, incidental or consequential damages including, but not limited to, loss of profits or revenue, loss of use of the equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, or claims of customers of the Purchaser for such damages.
APPROVALS & CLEARANCES – The purchaser shall have responsibility to obtain any and all necessary approvals and clearances from his Insurance carrier(s), FDA, USD, OSHA, Local Building, Health, Industrial Safety, Pollution Control and all other similar agencies unless specially quoted herein.
DRAWINGS, PLANS, SPECIFICATIONS, PERFORMANCE, REGULATORY LAWS AND/OR STANDARDS – The Seller makes no promise or representation that its products, equipment or services will conform to any state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the contract between Purchaser and the Seller. The Seller’s prices do not include the cost of any related inspections permits or inspection fees. The Seller does not promise, acknowledge or warrant that the goods stated in this proposal conform or comply to any plans, specifications, performance requirements, drawings, scopes of work, written scopes of work or any other obligations or promises that Purchaser may have to any third party (the ‘Project Documents and Obligations’) and Purchaser waives any and all claims related thereto. Purchaser acknowledges that it has, or prior to accepting this proposal shall, become familiar with the specifications, features, dimensions, capacities and operating abilities of the goods described herein and acknowledges that it bears the responsibility to ensure the goods described herein conform and comply with the Project Documents and Obligations. Purchaser accepts and assumes all responsibility and liability that the goods described herein conform to or comply with the Project Documents and Obligations and specifically waives any and all claims against Seller related thereto.
GENERAL – In the event any disputes between Seller and Purchaser that arise out of or relate to this proposal, Purchaser agrees to pay all costs, expenses and attorneys’ fees related to the dispute, whether or not suit is filed, through appeal and judgment enforcement. In the event suit is brought by Seller or Purchaser arising out of or relating to this proposal or any dealings between them, Purchaser and Seller waive trial by jury which waiver includes all causes of action at law or in equity, counterclaims, crossclaims and defenses which are or could be asserted. The Parties hereby agree that the law of the state where this proposal originates shall control any litigation arising out of or relating to this Proposal notwithstanding any conflict of laws and the parties specifically submit themselves to the personal jurisdiction of that state. The parties expressly agree to venue as follows: 1. For any state litigation in Florida venue shall exclusively be in Pinellas County, Florida, or if in Federal court, the Middle District of Florida in Tampa, notwithstanding convenience of the parties or any venue selection laws; 2. For any state litigation in Tennessee venue shall exclusively be in Shelby County, Tennessee, or if in Federal Court, the Western District Of Tennessee in Memphis notwithstanding convenience of the parties or any venue selection laws; or 3. For any litigation in Georgia venue shall exclusively be in Cobb County, Georgia, or if in Federal Court, the Northern District of Georgia in Atlanta, notwithstanding convenience of the parties or any venue selection laws. Should any terms or provisions contained in this proposal be deemed unenforceable , the contract of which these conditions for a part shall not fail by reason thereof but shall be construed in the same manner as if such terms or provisions had not appeared herein. Any assignment of this contract or any rights hereunder, by the Purchaser without written consent of the company shall be void. The provisions of the contract are for the benefit of the parties hereto and not for any other person or reason.
ADDITIONAL CONDITIONS – If the purchaser issues an order to the manufacturer directly or in care of Seller the manufacturer’s term and conditions of sale are specifically incorporated herein by reference and shall be in addition to the terms and conditions herein To the extent any of the manufacturers’ terms and conditions conflict with the terms and conditions contained herein, the terms and conditions contained herein shall control. The terms and conditions herein shall be in addition to those terms and conditions contained in any open account or credit agreement between Seller and Purchaser, which are specifically incorporated herein by reference. In the event the terms and conditions of the open account or credit agreement conflict with the terms and conditions herein, the terms and conditions herein shall control.
Terms and Conditions of Purchases from Suppliers
Terms and Conditions
1. DEFINITIONS
Unless the terms or context of the ORDER provide otherwise, the following terms shall have meanings set out below:
“CLIENT” means the individual, firm, company, or other corporate entity (including its successors and/or permitted assigns) with whom PURCHASER has contracted for the benefit of OWNER in those instances where PURCHASER has not directly contracted with OWNER and all rights, benefits, and remedies conferred upon OWNER by the ORDER shall also accrue and be available to and for the benefit of CLIENT.
“PROJECT” means Site(s) for which the GOODS are purchased under this ORDER.
“GOODS” means any and all equipment, ancillary design and engineering services, warranty related services, technical assistance, all items, articles, materials, apparatus, spare parts, labor, or other supplies including but not limited to manuals, operating instructions, reports, and all other documents to be supplied or performed by SELLER, as specified, listed, mentioned, scheduled, or implied in the ORDER or any revision thereof.
“ORDER” means the written Purchase Order issued by PURCHASER to SELLER which does hereby automatically incorporate these terms and conditions together with any appendices or attachments thereto for the supply of the GOODS.
“ORDER SUPPLEMENT” shall mean any written change to the ORDER signed by PURCHASER and SELLER in accordance with Article 9.
“ORDER PRICE” means the price set out in or calculated in accordance with the ORDER including any ORDER SUPPLEMENT.
“OWNER” means the individual or entity (including its successors and/or permitted assigns) owning and/or purchasing the PROJECT for which the GOODS are purchased under this ORDER.
“PURCHASER” means the entity noted on the front of the ORDER (including its parent, affiliates and subsidiaries). To the extent that PURCHASER is not the end-user of the GOODS being herein purchased then all rights, benefits, and remedies conferred upon PURCHASER by the ORDER shall also accrue and be available to and are for the express benefit of OWNER or CLIENT, whichever is the end-user, for which the GOODS are purchased.
“SELLER” means the firm, company or other corporate entity (including its successors and/or permitted assignees) contracted by the ORDER to supply GOODS to the PURCHASER.
“SUBCONTRACTOR” means any sub-supplier or subcontractor of any tier on whom the SELLER has directly or indirectly placed a SUB-ORDER. If used in the ORDER the term “sub-supplier” shall have the same meaning as SUBCONTRACTOR.
“SUB-ORDER” means an order or suborder directly or indirectly placed by the SELLER with a SUBCONTRACTOR in connection with the manufacture or supply of part of the GOODS.
2. GENERAL
2.1 These terms are binding and supersede and replace any SELLER's terms and are an integral part of the ORDER and/or CHANGE ORDERS(s). All terms and conditions in or attached to SELLER's quotation(s) or proposal(s) are hereby expressly rejected and declared null and void unless specifically and expressly included in the ORDER. No agreement or understanding that attempts to modify or change the terms, conditions or specifications of the ORDER shall be binding unless it has been confirmed in writing by PURCHASER.
2.2 PURCHASER reserves the right to issue ORDERS also and/or only by facsimile, email, or letter. PURCHASER does not accept responsibility for oral or verbal orders, unless they are followed by a written ORDER within ten (10) working days.
2.3 If SELLER commences performance prior to delivering a written acceptance, SELLER shall be deemed to have accepted the ORDER and all terms, conditions or specifications thereof including these Terms and Conditions of Purchase.
2.4 The Delivery Terms shall be those specified in the ORDER, or in the absence thereof or in the event it is unclear in the ORDER, delivery shall be F.O.B destination point.
3. PRICE AND PAYMENT
3.1 All prices included in the ORDER, unless otherwise expressly stated, are:
(a) Firm, fixed for the term of the ORDER;
(b) Include all taxes, duties and fees of any kind which either party is required to pay with respect to the provision of Services under the ORDER, and
(c) Include all charges related to the packing of the GOODS and transit to the required destination point (s).
3.2 Payment terms are those as stated in the ORDER.
3.3 Payments will be made ONLY upon the PURCHASER’s receipt of correct invoice(s), and any required backup documents. Further, as a condition precedent to payment from PURCHASER to SELLER, PURCHASER must have received payment from CLIENT, OWNER or otherwise for the GOODS provided by SELLER.
3.4 Payment for any part or all of the GOODS shall not constitute acceptance of the GOODS.
3.5 SELLER shall be responsible for ensuring the proper packaging of the GOODS provided hereunder. Any and all costs for packing, crating, special transport, or other related charges are included in SELLER’s pricing in this ORDER.
4. TIME OF PERFORMANCE
4.1 SELLER acknowledges that PURCHASER’s schedule and progress is conditioned upon SELLER’s timely performance hereunder. Time is of the essence with respect to SELLER’S performance pursuant to the ORDER
4.2 In the event of any delay or anticipated delay in SELLER’s performance, SELLER shall immediately give PURCHASER written notice of such delay, including a description of the cause of the delay and of the actions SELLER is undertaking to recover from the delay. PURCHASER may direct SELLER to accelerate its work and may include the suspension of all other work which delays or interferes with the production of the GOODS as PURCHASER may reasonably require in order to recover and maintain the schedule set forth in the ORDER. All costs incurred by SELLER to accelerate the work shall be to the account of SELLER.
4.3 Should SELLER fail to take aforesaid measures or should PURCHASER not approve the measures, PURCHASER reserves the right to require SELLER and SELLER shall for SELLER's account forthwith implement such measures as PURCHASER deems necessary.
4.4 In the event PURCHASER determines that SELLER's performance is such that it will cause a substantial delay in SELLER's delivery of the GOODS, PURCHASER, after having given SELLER written notice, reserves the right to terminate the ORDER without prejudice to any other rights or remedies PURCHASER may have under the ORDER or at law.
5. INSPECTION OF GOODS
5.1 If at any time prior to the start of the Warranty Period, any GOODS are found to be defective or not in conformance with the ORDER, PURCHASER shall have the right, upon giving notice to: 1) require correction by repair or replacement of the nonconforming GOODS; 2) reject any or all defective or nonconforming GOODS, or 3) accept and correct such GOODS, at SELLER’s expense. Seller shall pay all costs and expenses associated with any failure by SELLER to comply with the requirements of the ORDER, including such repair, replacement, rejection, or correction, and all handling and transportation costs to and from destination, and PURCHASER’s costs and expenses for any required expediting, re-inspections, analyses, or additional testing.
6. GUARANTEES AND WARRANTIES
6.1 SELLER guarantees that all the GOODS furnished by SELLER in performance of this ORDER will comply fully with the Occupational Safety and Health Act as amended (in USA) and any and all applicable safety rules and regulations there under to the extent applicable, and SELLER shall release, indemnify, defend, and hold harmless PURCHASER from and against any and all claims, loss or liability arising from failure of such GOODS to comply therewith.
6.2 SELLER guarantees and warrants that the GOODS and every item provided in the ORDER (a) will be new and meet all the requirements of the ORDER, drawings, and specifications, (b) are in no way counterfeit or misrepresent their origin, source or original manufacturer, and (c) are free from all latent or patent defects, in design, material, title, and workmanship, and conform to the ORDER. This guarantee, as it relates to equipment, shall be until twelve (12) months after startup of the equipment or eighteen (18) months after the last actual delivery date of the equipment, whichever is later. This guarantee, as to all other GOODS, shall be until twelve (12) months after commencement of operation of the PROJECT in which the GOODS are incorporated or twenty-four (24) months after the last actual delivery date, whichever is later.
6.3 The warranty period with respect to replaced or repaired GOODS shall be extended by twelve (12) months from the date of acceptance of repairs or replacements by PURCHASER.
6.4 PURCHASER may notify SELLER verbally or in writing of any defect or deficiency in violation of the warranties and guarantees herein. SELLER shall promptly repair and/or replace, at SELLER’s sole expense, any discrepancy or defective work, including defective workmanship and/or materials furnished by SELLER and/or its SUBCONTRACTORS. If such discrepancies or defects are not immediately corrected, PURCHASER may cause same to be corrected at SELLER’s expense, including but not limited to all associated site costs, such as cranes, scaffolding, and special equipment required to make such corrections to the GOODS. Such expenses may be deducted from any amounts otherwise due to SELLER, regardless if the amounts are due on the PROJECT, another project or otherwise.
6.5 All of SELLER’s and its SUBCONTRACTORS representations, warranties, and guarantees contained in the ORDER are and shall be deemed material and shall survive the completion or termination of this ORDER. The representation, warranties and guarantees contained in the ORDER are in addition to any and all other warranties afforded PURCHASER, CLIENT and OWNER at law.
7. TITLE AND RISK OF LOSS
7.1 SELLER shall continuously protect the GOODS and property of PURCHASER, CLIENT, and OWNER and others from injury, damage, or loss arising in connection with SELLER’s performance under this ORDER and shall bear all risk of loss therefore while in the care, custody, or control of SELLER, or SELLER’S agents, carriers, or bailees.
7.2 SELLER warrants good title to all the GOODS furnished by it hereunder. Title to all of the GOODS shall pass to PURCHASER at (a) the date all or such portion of said GOODS is placed at the ORDER delivery point, or as otherwise set forth in the ORDER. Said transfer of title shall in no way affect PURCHASER’S rights to refuse the GOODS in case of non-conformity with the requirements for the GOODS as set forth in other provisions of the ORDER.
8. SUBSTITUTIONS
8.1 PURCHASER must approve all deviations, substitutions, or exceptions to this ORDER, in writing, by use of e-mail, fax or letter, and later confirmed with an ORDER SUPPLEMENT. If a specific product or its equal is called for in this ORDER, PURCHASER must approve the proposed equal in writing. Where there is any question concerning the use of materials, products, equipment or devices not manufactured by SELLER, which must be used to comply with this ORDER, SELLER shall obtain and follow the recommendations of the manufacturer regarding the use.
9. CHANGES
9.1 PURCHASER shall have the right to make changes to the quantity and quality of the GOODS and to make changes to the specifications and drawings for GOODS covered by this ORDER. If SELLER believes that such changes affect the ORDER PRICE or delivery of the GOODS, SELLER shall notify PURCHASER in writing (with complete supporting documentation) within ten (10) calendar days after receipt of PURCHASER’S written notice of change. Unless the SELLER presents to PURCHASER a written request for adjustment in the ORDER PRICE or delivery by SELLER within ten (10) calendar days after receipt of PURCHASER’S written notice of a change, the SELLER shall be conclusively deemed to have waived all claims against the PURCHASER with respect thereto. However, SELLER shall not perform any change unless authorized in writing by PURCHASER.
9.2 PURCHASER and SELLER shall mutually agree in writing upon any adjustment pursuant to this Article to reflect the extent, if any, that such change has resulted in an increase or decrease in the ORDER PRICE and/or a delay or acceleration of the delivery date. SELLER shall not suspend performance of the unaffected portion of the GOODS under this ORDER while PURCHASER and SELLER are in the process of making any such change. If released in writing by PURCHASER, SELLER shall comply with and perform such change in accordance with the terms of this ORDER during the time SELLER and PURCHASER are working to mutually agree upon an equitable adjustment in the ORDER PRICE or delivery or both. Failure to come to agreement on the change on the ORDER PRICE or delivery date shall not be an excuse for nonperformance by SELLER. In the event any such change or alteration results in a reduction in SELLER’S scope of work, no allowance shall be made to SELLER for damages, including loss of anticipated profits.
9.3 No agreement or understanding modifying the conditions or terms of this ORDER shall be binding upon PURCHASER, nor will PURCHASER pay compensation, unless the agreement or understanding is made in writing via a CHANGE ORDER. This CHANGE ORDER shall be deemed to be incorporated into the ORDER and to be complete and final and to include the accumulative effect of any previously agreed to CHANGE ORDERS with respect to both cost and time.
9.4 Should SELLER consider itself entitled to any claim for additional compensation or extension of schedule for any reason other than described in section 9.1 above, SELLER shall, as a condition precedent to SELLER’s right to make a claim for such additional compensation or extension of schedule, do the following:
(a) within ten (10) calendar days after such event has arisen, notify PURCHASER in writing of the same; and
(b) within ten (10) calendar days after such notification, submit in writing to PURCHASER a detailed accounting of any additional compensation or extension of time to which SELLER considers itself entitled so that PURCHASER may properly evaluate such claim.
9.6 It being understood that any failure to comply with any requirement as stipulated in this Article shall forfeit any rights SELLER may have in respect of such additional compensation or extension of time.
10. TAXES AND DUTIES
10.1 All taxes and duties levied on or charged to PURCHASER as a result of the ORDER or the performance thereof, shall be for SELLER’s account, unless otherwise specified in the ORDER. SELLER shall invoice PURCHASER for such taxes based on the delivery location of the GOODS and such taxes shall be listed as a separate line item on SELLER’s invoices.
10.2 SELLER hereby accepts exclusive liability for, and shall release, indemnify, defend and hold harmless PURCHASER against liability for the payment of any and all taxes, contributions for unemployment insurance, old age pensions or annuities, or any other purposes now or hereafter imposed by any government authority, in connection with this order.
11. RIGHT TO OFFSET
11.1 PURCHASER shall have the right to withhold payment from SELLER for any amounts owed by SELLER to PURCHASER under this or any other agreement and to offset payments due to SELLER with such amounts. PURCHASER may withhold disputed amounts invoiced by SELLER until such disputes are resolved according to the dispute resolution procedures outlined herein.
12 TERMINATION
12.1 PURCHASER may terminate this ORDER in whole or in part for SELLER’s default at any time upon written notice to SELLER without cost or liability to PURCHASER and/or if:
(a) SELLER becomes bankrupt or commences a voluntary bankruptcy proceeding, or SELLER goes into liquidation, or SELLER makes a general assignment for the benefit of creditors, or a receiver is appointed for any property of SELLER, or other similar event, or
(b) SELLER fails to comply with any provision of this ORDER.
12.2 Should PURCHASER desire to terminate this ORDER for its convenience, PURCHASER may terminate this ORDER in whole or in part by giving written notice to SELLER specifying the date and the extent to which this ORDER is terminated. Any termination that may deemed, held or adjudicated wrongful, shall automatically converted to a termination for convenience under this Article 12.2.
12.3 Upon any termination pursuant to Sections 12.1 or 12.2, SELLER shall immediately or upon such other date as is specified in the notice: (a) discontinue performance of all terminated work (except as may be necessary to preserve and protect the GOODS) and refrain from placing further contracts relating to the terminated work; (b) assign to PURCHASER, or its nominee, to the extent required by PURCHASER, all contracts which SELLER shall have with SUBSUPPLIERS relating to the terminated work; (c) terminate all contracts relating to the terminated work which are not assigned pursuant to (b) above; and (d) enable PURCHASER or its nominee to take over the work completed as of such date and all of the relevant part of the materials in SELLER’s or its SUBSUPPLIER’s care, custody, or control as required by PURCHASER. SELLER shall continue performance of this ORDER to the extent not terminated. PURCHASER may complete the performance of this ORDER by such means as PURCHASER selects (including, without limitation, the procurement of alternative GOODS upon such terms as PURCHASER deems appropriate) and in the event of such cancellation under Section 12.1 SELLER shall be responsible for any additional costs and expenses incurred by PURCHASER in so doing.
12.4 In the event of PURCHASER’s termination in accordance with Article 12.2 herein, PURCHASER shall pay SELLER for any GOODS completed and delivered to PURCHASER in full compliance with the terms of this ORDER prior to termination and shall reimburse SELLER for any actual and justifiable costs and expenses incurred by SELLER resulting from such termination, but in no event shall the total payment under this paragraph exceed the total price of this ORDER. Notwithstanding the foregoing, any amounts due to SELLER for GOODS completed by SELLER in full compliance with the terms of this ORDER prior to termination shall be subject to set off of PURCHASER’s additional costs of completing the ORDER and other damages incurred by PURCHASER as a result of SELLER’s default under 12.1 above.
13. ASSIGNMENT
13.1 SELLER shall not assign this ORDER, or any partial or total interest therein, including, but not limited to, any monies due or to become due SELLER hereunder, without PURCHASER’s prior written consent; provided, however, that PURCHASER may, without prior written consent of SELLER, assign this ORDER or any interest herein to any of OWNER’s or CLIENT’s respective affiliates or designees.
14. LIENS
14.1 SELLER shall release, indemnify, defend and hold PURCHASER, OWNER, and CLIENT harmless from any and all claims or liens filed and/or made in connection with the GOODS, including all expenses and attorneys' fees incurred in discharging any claims, liens or similar encumbrances. PURCHASER shall have the right to discharge or satisfy any such claim or lien, upon 10 days’ written notice and the corresponding failure of SELLER to satisfy or remove such claim of lien within the 10 day time period. Any and all amounts expended by PURCHASER in removing or obtaining satisfaction of the claim or lien shall be reimbursed by SELLER and may be withheld from any amounts due to SELLER.
15. INTELLECTUAL PROPERTY
15.1 SELLER warrants that PURCHASER’s use or sale of the GOODS will not infringe any valid patents, copyrights, trademarks and other proprietary information. SELLER agrees, at its own expense, to defend any claim, suit, proceeding, or action brought against PURCHASER for alleged infringement of patent or invention rights, copyrights, trademarks, or other proprietary rights arising from the sale or use of GOODS and technical information furnished hereunder and SELLER agrees to hold harmless and indemnify PURCHASER, CLIENT and OWNER from any loss, liability, cost, damage, and expenses incurred by SUCH PARTIES in connection with any such claim, suit, proceeding, or action whether against PURCHASER, CLIENT or OWNER. PURCHASER has the right to participate in the defense of such suits or actions, or if it elects, it may assume the entire defense of such suits through its own counsel. SELLER shall pay any amount negotiated by SELLER for the settlement of said claim and all damages and costs awarded against PURCHASER, CLIENT and/or OWNER in such suit, action or proceeding. If said GOODS or technical information are held to constitute infringement and the use of same is enjoined, SELLER shall, at its expense, either obtain for PURCHASER the right to continue using said GOODS or technical information, or replace same with non-infringing goods or technical information acceptable to PURCHASER or modify said GOODS or technical information so it becomes non-infringing; provided, however that no such replacement or modifications shall in any way diminish the rated capacity or performance of the GOODS or limit or hinder any warranties pursuant to the ORDER.
15.2 SELLER shall grant to PURCHASER a non-exclusive royalty-free transferable, irrevocable license under patents, now or hereafter owned by SELLER, to use and sell the GOODS.
15.3 The terms of this Article shall survive the expiration or any termination of this ORDER.
16. INDEMNIFICATION
16.1 SELLER shall release, indemnify, defend and hold harmless PURCHASER, CLIENT and OWNER, and their respective parents, partners, affiliates, subsidiaries, directors, officers, employees, agents, representatives, successors and assignees (collectively, the "Indemnified Parties"), from any and all claims, losses, demands, causes of action and any and all related costs and expenses of every kind and character, including attorneys' fees, arising out of or in connection with bodily injuries or death of any person(s), or damages to any and all property in any way sustained or alleged to be sustained in connection with or by reason of SELLER’S performance under this order, the GOODS, or by any act or omission by SELLER, its SUBCONTRACTORS, VENDORS, AGENTS or EMPLOYEES, howsoever arising and whether or not the liability involved is founded on the indemnified party's tort (including active negligence and strict liability), breach of contract, breach of warranty or other legal fault, except that SELLER shall not be liable for the sole negligence of PURCHASER, CLIENT or OWNER.
16.2 SELLER shall be liable for, and shall release, defend, indemnify and hold PURCHASER, CLIENT and OWNER harmless from and against any and all CLAIMS which arise out of or in any way relate directly or indirectly to the failure of SELLER or any of its SUBCONTRACTORS to comply fully with all laws, regulations, rules and orders of any governmental authority having jurisdiction over SELLER’S activities hereunder.
16.3 The terms of this Article shall survive the expiration or any termination of this ORDER.
17. APPLICABLE LAW
Unless agreed otherwise, this ORDER shall be governed by, and interpreted in accordance with the laws of the State of Florida (USA) which shall be the applicable law, without regard to the principles of Conflict of Laws.
18. DISPUTE RESOLUTION
18.1 Accordingly, any dispute shall exclusively be referred to and finally settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.
18.2 The parties agree that OWNER/CLIENT may initiate or join in any arbitration proceeding and/or proceeding to enforce any arbitration award related to any benefit conferred on OWNER/CLIENT by this ORDER.
18.3 The place of arbitration shall be Pinellas County, Florida. SELLER waives any and all rights and arguments that Pinellas County, Florida is an inconvenient forum or objectionable pursuant to the doctrine of “forum nonconveniens.” To the extent there is a statute, rule, regulation or law prohibiting venue being placed outside the state in which SELLER resides, SELLER, unequivocally waives and relinquishes the benefit and protection of such statute, rule, regulation or law. The prevailing party in the arbitration shall be awarded its reasonable attorneys’ fees, costs and expenses. Notwithstanding, in the event the venue provision is held invalid, it shall not affect the agreement to arbitrate as stated herein.
18.4 If a dispute between the parties is referred for resolution pursuant to this article, the parties shall nevertheless continue to perform their respective obligations under this ORDER.
19. COMPLIANCE WITH LAWS
SELLER shall observe and comply with all applicable federal, state and local laws, codes, and regulations in the manufacturing and supply of the GOODS including, but not limited to requirements for applicable export license and/or permits. SELLER shall immediately contact PURCHASER for instructions if SELLER believes any part of this ORDER does not comply or may not comply, with an applicable law, code or regulation.
20. WAIVER AND REMEDIES
Unless expressly provided otherwise, failure or delay on PURCHASER to exercise any right, power or privilege under this ORDER, or under any other agreement relating hereto, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege preclude any other future exercise thereof. The rights and remedies of PURCHASER provided in this or any other article shall not be exclusive and are in addition to any rights and remedies provided by law or under this ORDER.
21. SEVERABILITY AND NO CONSTRUCTION AGAINST DRAFTER
In the event that any provision or part of this ORDER is illegal, contrary to public policy, or otherwise unenforceable, then such provision shall be deleted from the ORDER leaving the remainder of this ORDER legal, valid and enforceable. To the extent legally possible, the deleted provision shall be replaced by a valid new provision having as nearly as is legally possible the same effect as the illegal or unenforceable provision was intended to have. No provision of this ORDER or any related document shall be construed against or interpreted to the disadvantage of any party hereto by any court, arbitrator or other such adjudicative body or governmental agency by reason of such party having or being deemed to have structured or drafted such provision.
22. ENTIRE AGREEMENT
This ORDER sets forth the entire agreement between SELLER and PURCHASER and all prior negotiations, dealings , representations, and understandings are superseded hereby. No terms, conditions, understanding or agreement purporting to modify or vary the terms of this ORDER shall be binding unless hereafter made in writing in an ORDER SUPPLEMENT and signed by SELLER and PURCHASER. PURCHASER’s signature on any invoice or other form or document accompanying delivery of the GOODS furnished in performance of this ORDER shall constitute acknowledgment of receipt of said GOODS only, and shall not constitute PURCHASER’s assent to any terms and conditions contained thereon. In the event of conflict, ambiguity, or inconsistency between this ORDER and specifications, drawings, data sheets, or any other documents referenced herein or attached hereto, the more stringent requirement shall apply or in case of omission or errors, SELLER shall be responsible for contacting PURCHASER immediately for clarification.
23. INSURANCE
23.1 SELLER shall provide insurance covering the full replacement cost of the GOODS and any and all equipment and materials to be incorporated into the GOODS (regardless of who may have title/ownership), which is in SELLER’s care, custody and control. Any deductibles maintained under this insurance shall be for the account of the SELLER. In those instances wherein PURCHASER holds title to all or a portion of the GOODS before delivery then PURCHASER shall be included as a loss payee as its interests may appear under this policy. In addition, SELLER shall waive on behalf of PURCHASER all of its rights of recovery and its insurance carrier’s rights of subrogation.
23.2 SELLER shall maintain, at SELLER's expense, with insurers having an S&P or Best rating of A- or better, the following types of insurance with minimum policy limits as specified below:
- Workers Compensation Insurance as required by law.
(b) Employer's Liability Insurance with a limit of $1,000,000 each accident, $1,000,000 disease each employee, and $1,000,000 disease policy limit.
(c) Commercial General Liability Insurance with a limit of $1,000,000 per occurrence and $2,000,000 in the aggregate; and $2,000,000 Products/Completed Operations aggregate.
(d) Commercial Automobile Liability Insurance, covering all owned, non-owned and hired vehicles with a $1,000,000 Combined Single Limit.
(e) Excess Liability or Umbrella Liability Insurance in the amount of $5,000,000 per occurrence and in the aggregate; Excess or Umbrella Liability may be used in combination with the underlying coverages required herein to satisfy the required limits. Excess Liability or Umbrella Liability Insurance will be excess over underlying auto liability, general liability and employer’s liability.
23.4 SELLER shall (a) cause PURCHASER, CLIENT, and OWNER to be named as additional insured on SELLER’s Commercial General and Business Automobile Liability policies. SELLER will provide Follow Form endorsement, as respects Umbrella Liability (b) obtain a waiver of subrogation in favor of PURCHASER, CLIENT, and OWNER, (c) provide insurance which is Primary and Non-contributory, (d) be responsible for any self-insured retention or deductible at its sole expense, and (e) provide PURCHASER with certificates of insurance evidencing the required coverage prior to commencing any work under this ORDER. All insurance carried hereunder shall be endorsed to require the insurer to furnish PURCHASER with thirty (30) days' written notice prior to the effective date of any cancellation or adverse change of insurance. Approval, disapproval or failure to act by PURHASER regarding any insurance supplied by the SELLER shall not constitute a waiver, release or relieve the SELLER of full responsibility or liability for damages or accidents as set forth in this ORDER.
24. SUSPENSION
24.1 PURCHASER may at any time suspend performance of all or any part of the GOODS by giving written notice to SELLER. Such suspension may continue for a period of up to ninety (90) calendar days after the effective date of suspension, during which period PURCHASER, in writing, may request SELLER to resume performance on the GOODS. If at the end of said ninety (90) day period PURCHASER has not required a resumption of the work, that portion of the work which has been suspended shall be deemed terminated as of the effective date of suspension pursuant to the provisions of this Article, unless PURCHASER and SELLER have agreed in writing to a further extension of the suspension period, and as such PURCHASER shall compensate SELLER only for those GOODS made and delivered prior to the date of suspension, with all claims and demands of SELLER being fully satisfied upon payment. SELLER shall not be entitled to any, special, consequential or incidental damages, including, but not limited to, lost profits on any other portion of the ORDER.
25. FORCE MAJEURE
25.1 Neither party shall be liable to the other for failure to perform or for delay in performance due to any cause or event which in an objective view, is unforeseeable, unavoidable, and is not able to be overcome (i.e., an event of Force Majeure). Force Majeure events shall include: floods, earthquakes, tidal wave, hurricane, fire, or other major natural disasters, war (whether declared or not), hostilities, riots, acts or threats of terrorism, and civil commotions.
25.2 Strikes, labor or employment disputes or difficulties or other concerted acts of workmen, whether direct or indirect among SELLER’s personnel, or those of any of its SUBCONTRACTORS, shall not constitute Force Majeure.
