EPIC PIPING PO GENERAL TERMS & CONDITIONS – 04/23/2019
THE FOLLOWING CONDITIONS ARE ALWAYS APPLICABLE, UNLESS SPECIFICALLY MODIFIED IN WRITING BY THE PARTIES HERETO.
This order, when accepted by Seller either in writing or by shipment of any articles or other performances hereunder, constitutes the entire contract between Seller and EPIC Piping, LLC f/k/a United Weld Operations, LLC (“Buyer”) concerning its subject matter (the “Purchase Order”); and neither any contrary or additional conditions then specified by Seller nor any subsequent amendment shall have any effect without Buyer’s prior written approval. Buyer’s receipt of Seller’s conflicting form or any document related to this Purchase Order which contains terms and conditions different from or in addition to those in this Purchase Order are hereby objected to and shall be excluded from the contract resulting from this Purchase Order, unless Buyer agrees to such changes in writing.
2. Quality, Inspection, Acceptance
Seller warrants that all articles, goods, materials, equipment and services (“Goods”) furnished shall conform to specified drawings, specifications, or samples and shall be free from all defects of material or workmanship and s hall be suitable for the purpose intended. Buyer shall have the right to inspect the Goods and reject at place of delivery all defective material or workmanship. Seller further agrees to make adjustments or replacements as are necessary to meet the warranty at no cost to Bu yer. No inspection, failure to inspect, acceptance of payment by Buyer or passage of title shall constitute a waiver of the foregoing, and nothing herein shall exclude or limit any warranties either expressed or implied by law. Buyer shall have the right to return for replacement any defective article or to reduce quantity ordered at no cost. The Seller shall be responsible for all shipping cost involved in the handling and replacement of defective articles. The Seller agrees to refund any portion of the purchase price previously paid on account of returned Goods. Seller will be supplied quality documentation and other documents and information as requested.
Buyer shall have the right at any time, by written notice to make changes to this Purchase Order; such changes may include, but not be limited to drawings, specifications, quantities, destination, or delivery of any article(s) or service(s) specified. Should any change affect prices or deliveries contained herein, Seller shall, before proceeding, obtain Buyer’s concurrence and an equitable adjustment will be made. All changes must be authorized by Buyer in writing. In the event of reduced quantities, Buyer in no event shall be liable for any loss of profit or anticipatory cost calculated on the deleted quantity.
Unless otherwise provided herein or by law, Seller shall pay all sales, use, excise and other taxes, charges and contributions now or hereinafter imposed on, or with respect to, or measured by the articles, materials or work furnished hereunder or the compensation paid to persons employed in connection, with performance hereunder, and Seller shall defend and indemnify Buyer against any liability and expense by reason of Seller’s failure to pay the same.
The price includes delivery of all materials, D.D.P. Buyer’s designated location, freight and cartage prepaid. Seller will indicate plainly the Purchase Order number on all bills of lading, invoices, and freight bills. Each package or shipment must contain a memorandum showing Seller’s name, contents of package, and Purchase Order number. Partial shipments must be identified as such on shipping memoranda and invoices. When shipping, Seller will make no declaration of value to carrier except where shipment is subject to released value rating.
Seller warrants full, clear and unrestricted title to Buyer for all Goods provided under the Purchase Order, free of any and all liens, encumbrances, and security interests. Title to the Goods shall transfer to Buyer upon delivery to Buyer’s premises (or the destination named by Buyer) and acceptance by Buyer.
Buyer’s schedules are based upon the agreement that the Goods will be delivered to Buyer’s named destination by the dates specified on the face of the Purchase Order identified as delivery date or date required. Therefore, time is of the essence and if Goods are not delivered within the time specified on the Purchase Order, Buyer may reject such Goods and cancel the Purchase Order. If Seller fails to deliver the Goods by the date required, Seller shall pay to Buyer incidental and consequential damages for any loss or damage sustained by Buyer resulting from delay in the period from the date required until the Goods are delivered by Seller. Neither party shall be liable for any delay or failure to deliver or accept any or all of the Goods where such delay or failure is caused by fire, flood, natural disaster, other act of God, act of war, labor disturbance, or other event beyond such party’s control (“Force Majeure”). At the outset of any delay from any cause, including Force Majeure, Seller shall immediately notify Buyer in writing of the delay or anticipated delay and shall undertake to shorten the delay by all reasonable means. If such delay is caused by Force Majeure, the costs of shortening the delays shall be paid by Buyer to the extent such costs are directly attributed to action authorized by Buyer. If the delay is from any other cause, Seller shall be solely responsible for the costs of overcoming delays. In the event of a Force Majeure event which delays delivery, Buyer shall have the right to cancel the Purchase Order or any part thereof.
Seller agrees to hold in confidence any information, drawings, specifications or other technical data furnished by Buyer and to use such only for the performance of this Purchase Order. Upon completion of the Purchase Order, all drawings, specifications or data furnished by Buyer shall be returned to Buyer upon request. This Purchase Order and the prices, terms and conditions set forth herein are to be deemed confidential information and neither party shall disclose such confidential information without prior consent of the other party.
With respect to any work performed on premises under control of Buyer, Seller shall maintain the following insurances, at its sole cost and expense, with insurers satisfactory to Buyer, and limits not less than those specified: (a) Workers Compensation insurance complying with any statutory requirements, and Employer’s Liability insurance with a limit of $1,000,000 per occurrence; (b) Comprehensive Automobile Liability Insurance subject to a combined single limit of $1,000,000 per occurrence for bodily injury or death and property damage; (c) Comprehensive General Liability insurance with a limit of $1,000,000 per occurrence for bodily personal injury or death, and $1,000,000 per occurrence for property damage; (d) Any such other insurance as Buyer may require. Whenever requested, Seller shall furnish evidence satisfactory to Buyer that such insurances are in effect.
Seller shall indemnify and defend Buyer, Buyer’s client, their employees and agents against all claims, suits, liability, loss, damage, personal injury (including death) and expense (including, without limitation, on account of injury or death of Seller’s employees) sustained or alleged to have been sustained to the extent arising out of acts, or omissions to act, of Seller or employees, contractors or agents of Seller or arising out of defects in the Goods supplied by Seller pursuant to any Purchase Order, even if Buyer’s negligence is determined to have contributed to the losses, expenses or damages incurred. For the avoidance of doubt, Seller shall not owe indemnity or defense to Buyer for claims, suits, liability, loss, damage, and expense to the extent arising out of the negligent acts, or omissions to act, of Buyer, its agents or employees. Seller agrees to pay all costs and expenses paid or incurred by Buyer in enforcing its rights hereunder, including without limitation reasonable attorney’s fees and court costs. Buyer may participate in the defense of any such claim or suit without relieving Seller of any obligation hereunder.
If Seller breaches any provision hereof, or becomes insolvent, enters bankruptcy, receivership or other like proceeding (voluntarily or involuntarily), or makes an assignment for the benefit of creditors, Buyer shall have the right, in addition to any other rights it may have hereunder or by law, to terminate this Purchase Order by giving Seller written notice; whereupon (a) Buyer shall be relieved of all further obligation hereunder, except to pay the reasonable value of Seller’s prior performance, but not more than the purchase price and (b) Buyer may, at its option, complete supply of the Goods and/or performance of the work, in which event (1) title to any Goods, whether completed or partially completed, as well as all materials prepared, procured or set aside by Seller for use under this Purchase Order, shall at Buyer’s option upon giving written notice to Seller, vest in Buyer, and Buyer may enter Seller’s premises and remove the same therefrom, and (2) Seller shall be liable to Buyer for all cost incurred by Buyer in completing such supply and/or performance, in excess of the purchase price (whether or not Buyer exercises its option in clause (1)). Time is of the essence hereof; and Buyer’s right to require strict performance by Seller shall not be affected by any previous waiver, forbearance or course of dealing.
12. Termination for Convenience of Buyer
Buyer may, in its absolute discretion, termination any Purchase Order at any time by giving written notice to the Seller to the Seller. Where Seller is not in default under any Purchase Order, Buyer shall, as mutually agreed by both Buyer and Seller, reimburse Seller for all Goods satisfactorily performed or delivered prior to termination. Buyer is not responsible for other incidental or consequential damages, including but not limited to loss of profits. If, after termination of the Purchase Order by Buyer pursuant to Paragraph 12, it is determined for any reason that Seller was not properly terminated for cause, Buyer shall be entitled to convert the termination for cause to a termination for convenience under this Paragraph 13. In the event of such conversion, Seller, as its sole and exclusive remedy, shall be entitled to the amounts set forth in this Paragraph 13.
Seller agrees to defend and indemnify and save harmless Buyer from all costs whatsoever involved in any and all claims and suits for infringement of patent or patent rights claimed to govern Seller’s processes, products, items, equipment, apparatus or appliances. Buyer shall give Seller reasonable notice of any such claim or suit and Seller agrees to undertake at its own expense the defense of any and all such claims or suits. Buyer shall provide at Seller’s expense such assistance in defending such claim or suit as may reasonably be requested by Seller, or considered necessary by Buyer.
Buyer shall have the right to assign all of its rights, duties and obligations under this Purchase Order to a third party and Seller shall be bound to performance of its obligations hereunder. Seller shall not have the right to assign this Purchase Order without the prior written consent of Buyer.
Seller expressly warrants that the Goods delivered hereunder will be fit and sufficient for the purpose intended and of good quality, material, and workmanship, merchantable and free from defects. This warranty shall survive any inspection, delivery, acceptance, or payment by Buyer for the Goods. Seller warrants that the Goods are now free, and that at time of delivery shall be free from any security interest or other lien or encumbrance.
16. Payment Terms
Net amount of invoice in full within 45 days of the date invoice received unless otherwise expressly agreed to by both parties. Invoices shall be submitted promptly and in a timely manner. Seller is not obligated under any legal or equitable theory to pay for Goods reflected in an invoice that is received by Seller more than 90 days after delivery of Goods.
17. Price and Discounts
The price set forth on the Purchase Order is not subject to escalation unless an escalation formula is expressly provided for on the face of the Purchase Order. If a prompt payment discount is provided for on the Purchase Order, the discount period begins when the Goods or invoices are received, whichever is later, provided the period will be extended for delays caused by errors in invoicing or good faith disputes over the accuracy of the Invoice. Buyer may, prior to making any payment due under this Purchase Order, require Seller to deliver lien waivers from itself and each of its subcontractors and materialmen for Goods previously delivered. Seller shall warrant that the purchase price agreed for the Goods stated herein is as low as the lowest price(s) charged by Seller to any other purchaser of like Goods in the same or smaller quantities under like circumstances.
18. Mechanics Liens
Seller agrees to indemnify and hold harmless Buyer from and against all laborers’, materialmen’s and/or mechanics’ liens arising from the performance of Seller’s work or that of any agent, subcontractor or supplier of Seller, and shall keep the premises of Buyer’s client free from all such claims, liens and encumbrances.
19. Compliance with Laws
Seller warrants that all Goods supplied pursuant to any Purchase Order will comply with all applicable Federal, State, and Municipal Laws, Ordinances, and Regulations. Seller further certifies that all Goods provided hereunder shall be produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Acts of 1938, as amended from time to time, and regulations and Orders of the U.S. Department of Labor issued under Section 14 thereof, and that each invoice submitted hereunder shall be correct and authentic and the only one issued for the merchandise mentioned. Unless this Purchase Order is exempted by rules, regulations, or Orders of the Secretary of Labor and to the extent applicable, the provisions of the following are incorporated herein by reference and Seller agrees to comply with: (a) Executive Order 11246, as amended, and the implementing federal regulations of 41 C.F.R 60-1 (particularly, Subpart A § 60-1.4 & § 60-1.8) & 41 C.F.R. 60-2; (b) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and the implementing federal regulations of 41 C.F.R. 60-300 (particularly Subpart A § 60-300.5); (c) the Rehabilitation Act of 1973, as amended, and the implementing federal regulations of 41 C.F.R. 60-741 (particularly, Subpart A, § 60-741.5); and (d) Executive Order 13496 and the implementing federal regulations of 29 C.F.R. 471. The Seller warrants by acceptance of each Purchase Order compliance with such Executive Orders and rules and regulations, and amendments thereto, to the extent that same are applicable to the manufacture or sale of the goods, labor, and/or services purchased hereunder.
Seller represents and warrants that all Goods covered by this Purchase Order are in compliance with the provisions of the Occupational Safety and Health Law (Public Law 91-956) and the standards and regulations issued thereunder. Seller further agrees to defend, indemnify and hold harmless Buyer for any loss, damage, fine, penalty or any expense whatsoever as a result of Seller’s failure to comply with the Act and any standards or regulations issued thereunder.
Seller, without waiver to or limitation of any of its rights or remedies, shall have the right and is authorized from time to time to set-off against and deduct from any amount presently due or becoming due from Seller to Seller any and all amounts due S eller from Seller arising directly or indirectly out of Seller’s fault or neglect or Seller’s performance, non-performance, breach or default of this or any other contract between Seller and Seller.
22. Governing Law and Venue
This Purchase Order shall be governed, construed and enforced in accordance with the laws of the State of Louisiana, without regard to its conflicts of law provisions. The parties shall use reasonable efforts to resolve all disputes, and shall engage senior management as appropriate. Any dispute not resolved by the parties’ respective senior management shall be referred to binding arbitration conducted in accordance with the Construction Rules of the American Arbitration Association then in effect. The place of arbitration shall be Baton Rouge, Louisiana, or elsewhere as the parties may agree. Judgment upon any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties hereby waive any right to trial by jury.
In no event shall Buyer be liable for any indirect, incidental, special, punitive or consequential damages including, but limited to, loss of anticipated profit or loss of anticipated revenue.
24. Severability and Waiver
In the event one or more provisions of these Terms, or any other document expressly incorporated herein by reference, shall for any reason by invalid, illegal or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality or unenforceability. No delay or failure by Buyer to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies or be construed to be a waiver of any breach therein, and any single or partial exercise of any such right or remedy shall not preclude the further exercise thereof or the exercise of any other right or remedy.
The Seller shall maintain books and records, in accordance with generally accepted accounting principles and practices, concerning the performance of the Work pursuant to the terms and conditions of the Contract, and records required for compliance with all applicable federal, state and local laws and regulations. The accounting and compliance records shall be adequately safeguarded and protected at their source locations for the longer of five (5) years after final payment or as may be required by law. Buyer, its auditors and other authorized representatives shall have the right to review and audit, and shall be afforded access to, Seller’s pertinent books, accounts, employee time sheets, ledgers, bank records, receipts, vouchers, purchase orders and other records of Seller, its parent, affiliates and subsidiaries to verify hours of work, amounts, deposits, disbursements and accounting in order to determine whether Seller has properly computed the amounts and charges invoiced to Buyer. Information obtained by Buyer, in examining such accounting books and records shall not be disclosed to third parties without Seller’s consent, unless such disclosure is required by law or ordered by a governmental agency or a court of competent jurisdiction with respect to any litigation or other proceeding involving the Work or this Contract. The Buyer will have the right to audit all SELLER records pertaining to Direct Costs, change orders and work performed on any other time and material or other cost reimbursable basis.