Seward Generation, LLC
Purchase Order General Terms and Conditions
Capitalized terms not otherwise defined herein have the meaning ascribed to them in the Purchaser Order Terms and Conditions that are included in and made a part of these Purchase Order General Terms and Conditions.
Supplier hereby accepts these Purchase Order General Terms and Conditions, and acknowledges that its authorized representatives have fully read and understand this Purchase Order in its entirety and accepts the same without modification. No modification to these Purchase Order Terms and Conditions will be effective unless set forth in this Purchase Order and duly executed by Purchaser.
Supplier agrees that: (a) signing and returning this Purchase Order to Purchaser; (b) acknowledging this Purchase Order; (c) commencement of performance of any Work or shipment of any goods pursuant to this Purchase Order, whichever occurs first, will be deemed an effective acceptance of this Purchase order and all terms and conditions contained herein. Supplier acknowledges that additional terms or terms that modify any of these Purchase Order General Terms and Conditions or any other term or condition in this Purchase Order, including any such term or condition attached to or included in any form with Supplier’s proposal for or Supplier’s acceptance of services to be performed or goods to be delivered pursuant to this Purchase Order, is hereby rejected and will not be part of this Purchase Order.
Purchaser Order General Terms and Conditions
THIS AGREEMENT CONTAINS PROVISIONS RELATIVE TO INDEMNITY, RELEASE OF LIABILITY AND ALLOCATION OF RISK
1.0 DEFINITIONS
(a) “Affiliate” means an entity owned by, owning, controlling, or under common ownership or control with a Party.
(b) “Business Day” means any day that is not a Saturday, Sunday or day on which banks in Pittsburgh, Pennsylvania are closed.
(c) “Claims” means actions, claims, costs (including, costs of investigation, litigation, and court costs), damages (any statutory damages), demands, fines, interest, judgments, liabilities, losses, penalties, proceedings, suits (including any appeal), and expenses (including, attorneys’ fees) of whatsoever kind or character.
(d) “Governmental Authority” means any federal, state, local, or municipal governmental body or agency or subdivision thereof, including any legislative or judicial body, having appropriate jurisdiction to exercise authority or control over a Party, its parent corporation or any part or all of the Work to be performed under this Purchase Order.
(e) “Party” means either Purchaser or Supplier when referred to individually. “Parties” means Purchaser and Supplier when referred to collectively.
(f) “Price” has the meaning set forth in Article 3 (Price and Payment).
(g) “Purchase Order” means Purchaser’s standard authorizing purchase order document, and all documents attached thereto or referenced therein, including the General Terms and Conditions and these Terms and Conditions.
(h) “Purchaser” means Seward Generation, LLC.
(i) “Purchaser Parties” means Purchaser and its Affiliates and each of their respective directors, officers, managers, members, shareholders, employees, agents and representatives.
(j) “Subcontractor” means any individual, sole proprietorship, partnership, association, joint venture, limited liability company, corporation or other entity, regardless of tier, engaged by Supplier to provide any part of the Work to be performed pursuant to this Purchase Order.
(k) “Supplier” means the person or entity to whom or which the Purchase Order is issued.
(l) “Supplier Parties” means Supplier, its Affiliates, their respective suppliers or Subcontractors and each of their respective directors, officers, managers, members, shareholders, employees, agents, and representatives.
(m) “Taxes” means sales, use, excise, value-added, or other similar taxes, duties, charges, or fees (and any related fines, penalties, or interest).
(o) “Work” means labor, equipment, supplies, goods (including raw materials, components, intermediate assemblies and end products), and related services to be furnished under the Purchase Order at the Work Site, and the carrying out of all obligations imposed by the Purchase Order.
(p) “Work Site” means the location where the labor, equipment, supplies, goods (including raw materials, components, intermediate assemblies and end products), and related services to be furnished under a Purchase Order are delivered or performed.
2.0 SCOPE AND TERM
(a) This Purchase Order describes the goods and Work to be purchased and furnished and, as applicable, quantity, price, delivery date, scope of work, part number and other relevant information.
(b) Purchaser’s Affiliates may use any Work performed or goods supplied hereunder.
(c) The term of this Purchase Order will commence on acceptance of this Purchase Order (by Supplier’s execution or acknowledgement of the same or commencement of performance pursuant to the same) and will remain in force until it expires or is earlier terminated by either Party in accordance with its terms.
3.0 PRICE AND PAYMENT
In making payments hereunder, Purchaser will be entitled to conclusively presume that payment information furnished by Supplier, such as name, account number(s) and name of payee is accurate. In no event will Purchaser make a second payment where the first payment is made in accordance with such Supplier furnished information. All correct, undisputed invoices for Work accepted by Purchaser will be subject to a 2% discount when paid within 15 days from the receipt of such invoice and are payable 60 days after the receipt of such invoice (or on the next succeeding Business Day if such 60th day is not a Business Day). The price for Work or goods shall be as set forth on the face of a Purchase Order (the “Price”).
4.0 INSPECTION, EXPEDITING, SHIPMENT, DELIVERY, ACCEPTANCE OR REJECTION
(a) Shipments will be F.O.B. Purchaser’s designated location, unless stated otherwise on the front of this Purchase Order. Supplier shall immediately notify Purchaser if Supplier expects a delivery to be late. Purchaser may accept or reject any or all Work or goods within a reasonable time after receipt. Acceptance of the Work or goods will in no way be a waiver of or impair Purchaser’s right to reject or revoke its acceptance of nonconforming Work or goods, or to pursue any other remedies to which Purchaser may be entitled, notwithstanding Purchaser’s knowledge of the nonconformity, its substantiality or ease of discovery. Purchaser will have the right of access to Supplier’s (and Supplier’s suppliers’) plants for inspection and expediting purposes. Supplier shall deliver schedules and progress reports as reasonably requested by Purchaser.
(b) Unless Purchaser directs otherwise in writing, Supplier shall receive, unload, store in a secure place, and deliver from storage to the work area all materials and plant equipment required for the performance of the Work. The storage facilities and methods of storing are subject to Purchaser’s review and must meet Purchaser’s requirements. Materials and equipment subject to degradation by outside exposure must be stored in weather-tight enclosures provided by Supplier.
5.0 INSURANCE
Supplier shall purchase and maintain such insurance as will protect Supplier and Purchaser from the losses or claims which may arise out of or result from liabilities that Supplier or Purchaser may incur related to Supplier’s performance or obligations to perform under this Purchase Order, whether such performance be by Supplier or by anyone directly or indirectly employed by Supplier, or by anyone for whose acts Supplier may be liable:
(a) Supplier shall maintain insurance written in the kinds and minimum limits of liability specified below:
(i) Commercial General Liability (GL) – $1,000,000 per occurrence for Bodily Injury, including death, Property Damage, and Personal Injury, with a $2,000,000 Aggregate, written on an occurrence based form. Inclusions on the GL Policy: Contractual Liability; Broad Form Property Damage; Independent Contractors; Premises and Operations; Products & Completed Operations; Mobile Equipment, Cross Liabilities/Separation of Insureds, and, no exclusion for X.C. & U., Lifting, Rigging, or operations within 50 feet of a railroad. The GL policy shall extend coverage to claims and/or suits brought by Supplier’s employees for bodily injury incurred on Purchaser Parties’ property and/or premises, more commonly referred to as action-over claims;
(ii) Workers’ Compensation (WC) – Statutory, including temporary, leased and casual workers. If required for the Work or services being rendered, USL&H and FELA shall also be provided. Employer’s Liability (EL) -$1,000,000 each accident/each employee.
(iii) Automobile Liability (AL) -$1,000,000 Combined Single Limit, including coverage for owned, non-owned and hired vehicles;
(iv) Marine Liability (ML) – If a Marine Liability exposure exists as part of the Work being rendered pursuant to this Purchase Order, then Supplier agrees to maintain insurance coverages having limits, terms and conditions appropriate to the exposure. Purchaser will have the right, but not the obligation, to review Supplier’s ML coverage, and to request changes to the coverage in order to fully protect Purchaser Parties’ interests.
(v) Excess Liability (Umbrella) -$5,000,000 coverage that will respond excess of the underlying EL, GL, AL, and ML (if ML is applicable) policies on a following form basis.
(vi) Supplier shall maintain “All Risk” insurance upon the full value of Supplier’s Work, material delivered by Supplier to the Work Site, and all of Supplier’s property located at the Work Site until Acceptance of the Work has occurred.
(b) Purchaser Parties will be included as an Additional Insured’s on the GL, AL, ML and Umbrella policies for injury or damage arising out of, resulting from, or in connection with, Supplier’s performance of this Purchase Order. The Additional Insured status noted in this Article will be specifically endorsed to Suppliers Policies (blanket endorsements acceptable), and with respect to the General Liability Policy will provide additional insured status for both ongoing and completed operations, utilizing a ISO CG 20 10 07 04 endorsement form, issued in combination with a ISO CG 20 37 07 04 endorsement form, with the additional insured status applying to the extent permitted by law. If Supplier is supplying parts or equipment that Purchaser Parties will be distributing or reselling to third parties, then Supplier shall provide Purchaser with an additional insured endorsement (blanket endorsements acceptable) that is the equivalent of an ISO CG 20 15 07 04, which will extend Supplier’s Products Liability insurance coverage to the Purchaser Parties as additional insureds. The insurance provided by Supplier shall be primary, without right of contribution, with respect to any similar insurance being maintained by, or available to, the Purchaser Parties and any additional insured. Waiver of subrogation shall be provided pursuant to this written contract for all Purchaser Parties and Additional Insureds with respect to each of the coverages noted in Section (a), above.
(c) Supplier shall furnish Purchaser certificates of insurance acceptable to Purchaser evidencing the required coverage, as well as any other terms and conditions as specified herein, prior to commencement of the Work. The policies noted in this Article may not be canceled or materially changed in a manner that adversely affects Purchaser or any additional insured until after 30 days’ prior written notice has been provided to Purchaser by Supplier or Supplier’s Insurance Agent/Broker. The failure by Supplier to provide Purchaser with certificates of insurance, or by Purchaser to insist upon receiving such certificates of insurance, will not be deemed a waiver of any rights of Purchaser under this Purchase Order. The inclusions, coverage and limits set forth herein are minimum inclusions, coverage and limits, and will not be construed as a limitation of Purchaser’s rights under the noted policies, or other policies being maintained by Supplier. Supplier is responsible for determining what additional coverage, terms or limits should be obtained to perform this Purchase Order, even though those requirements may be in addition to or in excess of the minimum requirements set forth herein.
6.0 INDEMNITY
(a) SUPPLIER AGREES TO RELEASE, DISCHARGE, AND RELINQUISH, AND TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS THE PURCHASER PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, ASSESSED AGAINST OR INCURRED BY ANY OF THE PURCHASER PARTIES OR ARISING IN FAVOR OF ANY OF SUPPLIER PARTIES OR ANY THIRD PARTY ON ACCOUNT OF OR ALLEGING PROPERTY DAMAGE OR LOSS, PERSONAL INJURY, ILLNESS, OR DEATH (EXCEPT FOR CLAIMS ON ACCOUNT OF OR ALLEGING PERSONAL INJURY, BODILY INJURY, ILLNESS OR DEATH OF AN EMPLOYEE OF SUPPLIER PARTIES) IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE WORK PERFORMED OR PROVIDED BY SUPPLIER HEREUNDER OR THE PRESENCE OF ANY SUPPLIER PARTIES ON THE WORK SITE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE OBLIGATIONS TO RELEASE, TO DEFEND, AND TO INDEMNIFY CONTAINED IN THIS ARTICLE 6(a), EXCEPT TO THE EXTENT PROHIBITED BY LAW, WILL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE JOINT, SOLE, OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, CONTRACTUAL OBLIGATIONS, OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF ANY PERSON OR ENTITY, INCLUDING THE PURCHASER PARTIES.
(b) SUPPLIER AGREES TO RELEASE, DISCHARGE, AND RELINQUISH, AND TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS THE PURCHASER PARTIES FROM AND AGAINST ANY AND ALL CLAIMS ASSESSED AGAINST OR INCURRED BY ANY OF THE PURCHASER PARTIES OR ARISING IN FAVOR OF ANY OF SUPPLIER PARTIES OR ANY THIRD PARTY ON ACCOUNT OF OR ALLEGING PROPERTY DAMAGE OR LOSS, PERSONAL INJURY, BODILY INJURY, ILLNESS OR DEATH OF AN EMPLOYEE OF SUPPLIER PARTIES IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE WORK PERFORMED OR PROVIDED BY SUPPLIER HEREUNDER OR THE PRESENCE OF ANY SUPPLIER PARTIES ON THE WORK SITE.
THE OBLIGATIONS TO RELEASE, TO DEFEND, AND TO INDEMNIFY CONTAINED IN THIS ARTICLE 6(b), EXCEPT TO THE EXTENT PROHIBITED BY LAW, WILL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE JOINT, SOLE, OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, CONTRACTUAL OBLIGATIONS, OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF ANY PERSON OR ENTITY, INCLUDING THE PURCHASER PARTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIER EXPRESSLY WAIVES THE BENEFIT, FOR ITSELF AND ITS SUBCONTRACTORS, OF THE PROVISIONS OF ANY APPLICABLE WORKERS’ COMPENSATION LAW LIMITING THE TORT OR OTHER LIABILITY OF ANY EMPLOYER ON ACCOUNT OF INJURIES TO EMPLOYEES INSOFAR AS THE ABOVE INDEMNIFICATION AND DEFENSE OBLIGATIONS ABOVE ARE CONCERNED, AND ASSUMES LIABILITY IN ACCORDANCE WITH THIS SECTION; PROVIDED, HOWEVER, SUCH A WAIVER IS NOT INTENDED TO BENEFIT ANY THIRD PARTIES AND IS NOT A WAIVER OF ANY RIGHTS OR DEFENSES EITHER PARTY HERETO MAY HAVE AGAINST A THIRD PARTY.
7.0 CHANGES IN THE WORK
Purchaser will have the right to make any changes in the Work. Should any change affect the amount or character of labor or material required or time for performance hereunder, the price and/or schedule will be adjusted by mutual written agreement. Any such revisions may be made only by a written supplement to this Purchase Order. In the absence of such a supplement, Supplier will have no claim for additional compensation. In case any such change results in a decrease of Work, no allowance will be made to Supplier for loss of anticipated profits.
8.0 SAFETY & HEALTH
(a) Supplier will be solely responsible for the safety and health of all Supplier Parties in performing Work or while on the Work Site.
(b) Supplier shall maintain a health and safety program on the Work Site to maintain a safe work place and ensure compliance with all applicable sections of the National Fire Codes, Occupational Safety & Health Administration (OSHA) regulations, any state or local laws or codes, and Purchaser’s health and safety programs and policies.
(c) Supplier’s health and safety program must comply with OSHA standards and any other rules and regulations applicable in the state in which Work is being delivered.
(d) Penalties – Any civil or criminal penalties imposed upon Supplier by OSHA or pursuant to any other laws or regulation by any Governmental Authority having jurisdiction will not constitute reimbursable costs of Supplier. Supplier will reimburse Purchaser Parties for any penalties and cost of compliance relating to OSHA or other Governmental Authority citations incurred by any of the Purchaser Parties arising from violations by any of Supplier Parties.
(e) Supplier will be responsible for ensuring that Supplier’s and Supplier Parties’ personnel are at all times fit to work and their performance is not be impaired by alcohol or drugs. If Purchaser notifies Supplier (either written or verbally) of any Supplier violation of OSHA or comparable state requirements, or Purchaser’s or Supplier’s health and safety program, Supplier shall take immediate corrective action. If Supplier fails to implement immediate corrective actions satisfactory to Purchaser, Purchaser may require Supplier to stop all Work until the noncompliance is corrected to Purchaser’s satisfaction. Purchaser may also require Supplier to stop work immediately in imminent danger or emergency situations.
(f) Supplier shall immediately report all health and safety incidents to Purchaser that occur on Purchaser’s premises regardless of severity and investigate and submit to Purchaser and the applicable workers’ compensation carrier written reports of all accidents wherein reportable injuries or fatalities occur or which result in damage to or loss of property. These reports must be submitted within 24 hours after the occurrence.
9.0 ENVIRONMENTAL PROTECTION
(a) Supplier shall comply with all federal, state and local laws and regulations pertaining to the protection of the environment associated with the Work. Supplier shall not drain equipment, spill, pour, abandon, bury or dispose of material in any manner on Purchaser’s property or the Work Site. Supplier will dispose of waste materials (i.e., spent abrasives, spent thinners, solvent, or other cleaning waste) in containers (provided by Supplier) and label for disposal by Supplier, unless the scope of work provides for such containers or disposal to be provided or performed by Purchaser. Supplier shall, in accordance with applicable laws and regulations, provide suitable facilities to prevent the introduction of any substances or materials into the waters of the state. A containment berm must be used around any kind of chemical or petroleum storage area designated to contain a release. Supplier shall perform its Work so as not to discharge into the atmosphere, from any source whatever, smoke, dust or other contaminants in violation of the laws, rules regulations and permits of the Governmental Authorities having jurisdiction. If any such releases to the environment occur, Supplier shall immediately contact Purchaser. Supplier will be liable for all expenses incurred to remove all contaminated material introduced to the Work Site by any Supplier Parties in accordance with appropriate governmental regulation and to the satisfaction of Purchaser. Supplier shall not overhaul any equipment on Purchaser’s property or the Work Site, except for emergency repairs of short duration as may be necessary to complete the Work. Any fluids drained or removed from vehicles or equipment must be collected in suitable containers and transferred to a designated waste storage area where it is to be disposed of in accordance with applicable governmental regulations at Supplier’s expense. If Supplier encounters on the Work Site materials reasonable believed to be asbestos or polychlorinated biphenyl (PCB), or any other hazardous substance subject to regulation, Supplier shall immediately stop Work in the affected area and report the condition to Purchaser. Supplier will not be required to perform any Work not specified in the scope of work that is related to hazardous materials. Supplier is responsible for ensuring that its personnel receive training on environmental requirements applicable to the nature of the Work.
(b) Supplier shall not deliver any materials or products, including packing, gaskets, coating or wiring insulations, containing asbestos. This prohibition includes such items as any such item is encapsulated or the asbestos fibers are impregnated with a binder material without Purchasers’ prior written consent. If an acceptable substitute cannot be located, the supply or furnishing of materials and/or products containing asbestos must be specifically approved in writing by Purchaser. A “Material Safety Data Sheet” (MSDS), OSHA Form 20, must be provided with all approved materials and/or products. Supplier acknowledges that Supplier has been notified that ACM (asbestos containing material), PACM (presumed asbestos containing material) and lead based paint may be located at Work Site. Supplier acknowledges that during the course of the Work, Supplier, its employees and/or its Subcontractors’ employees may find ACM, PACM, or lead-based paint present at the Work Site. Supplier assumes full responsibility and liability for providing proper employee health protection and equipment for its personnel and Subcontractor personnel who may be exposed to ACM, PACM, or lead-based paint. Supplier shall immediately notify the Purchaser if Supplier discovers exposed ACM, PACM, or lead-based paint or if Work requires the handling, removal or disposal of such materials. SUPPLIER FURTHER AGREES THAT ITS INDEMNITY OBLIGATIONS SPECIFIED IN ARTICLE 6.0 (Indemnity), INCLUDES CLAIMS ARISING FROM OR RELATED TO SUPPLIER’S OR ITS SUBCONTRACTORS’ PERSONNEL’S EXPOSURE TO OR INHALATION OF ACM, PACM, OR LEAD-BASED PAINT.
10.0 WARRANTIES
(a) Supplier warrants that it will have title to all of the goods furnished hereunder and the right to sell such goods to Purchaser. Supplier warrants and represents that it has developed or obtained all of the rights and licenses necessary for to deliver all goods and/or Work in conformance with this Purchase Order for any reasonably anticipated use by Purchaser. Supplier warrants and represents that it has acquired such licenses, if any, and that such licenses allow for the use of the goods and/or Work by Purchaser. Supplier warrants that all Work furnished hereunder will be performed, produced, and furnished in compliance with all applicable federal, state, and local laws, orders, and regulations. Unless otherwise specified herein, Supplier shall obtain all permits necessary for performance under this Purchase Order. Supplier expressly warrants that all Work performed, produced, and furnished or delivered under this Purchase Order will be provided in accordance with the requirements of this Purchase Order and performed in accordance with standards of care, skill and diligence consistent with recognized and sound industry practices and procedures, will be new and will be free from defects in design, material and workmanship and if installed by Supplier, will be properly installed and activated, for a period of 18 months after acceptance of the Work or designated portion thereof. Supplier warrants and represents that there is no pending, or to Supplier’s knowledge threatened, litigation, except as disclosed to Purchaser in writing, involving or relating to the goods and/or services offered by Supplier relating to this Purchase Order. Supplier agrees to notify Purchaser within 14 days of becoming aware of any such pending or threatened litigation during the term and for two years following the expiration or termination of this Purchase Order. Purchaser will have the benefit of all warranties implied at law and express warranties made by Supplier. Supplier agrees to promptly replace or correct defects of any Work not conforming to the foregoing warranty, without expense to Purchaser, including transportation, shipping, and any incidental expenses. If Supplier fails to promptly repair or replace any of the foregoing, Purchaser, in addition to any other rights it may have at law or in equity, may make such corrections or replace such Work, goods or services and charge Supplier for the cost incurred by Purchaser in doing so.
(b) Neither payment nor any other provision of this Purchase Order, nor partial or entire use of the Work by Purchaser will relieve Supplier of its liability with respect to the warranties contained in this Purchase Order.
(c) If Purchaser elects to accept Work that is not in accordance with the requirements of this Purchase Order, Purchaser may do so instead of requiring its removal and correction, in which case the Price will be reduced as appropriate and equitable. Such adjustment will be effected whether or not final payment has been made.
(d) Supplier represents and warrants that it is properly and adequately equipped, organized, staffed, financed, experienced, qualified, insured, and licensed to perform the Work and/or supply the Work as specified in this Purchase Order.
(e) Supplier represents and warrants that it does not manufacture or subcontract for the manufacture of any products for which conflict minerals are necessary to the functionality or production of that product. For purposes of this Article 10(e) the term “conflict minerals” means minerals such as cassiterite, columbite-tantalite, gold, and wolframite, derivatives of these minerals (including tin, tantalum and tungsten) and other minerals that the US Secretary of State may designate from time to time, that are sourced from a mine located in the Democratic Republic of Congo or an adjoining country.
11.0 INVOICING, RECORDS AND AUDIT
(a) Invoices must have sufficient detail and back-up information (e.g., time sheets, equipment rates, etc.) to allow verification that each invoice is accurate. All invoices must contain this Purchase Order number and respective line item number (if applicable), in order to be paid. Payment of an invoice does not constitute acceptance by Purchaser and is without prejudice to any and all claims, at law or in equity that Purchaser may have against Supplier.
(b) Supplier shall ensure that its and its Subcontractors’ books, records and accounts, correspondence, accounting procedures and practices and any other supporting evidence relating to this Purchase Order (“Records”) will be open to inspection, audit and/or reproduction, during normal working hours, by Purchaser or its authorized representative to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims based on Supplier’s or any Subcontractor’s actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended, directly in the performance or termination of the Work under this Purchase Order. For the purpose of evaluating or verifying such actual or claimed costs incurred or units expended, Purchaser or its authorized representative will have access to said Records from the effective date of this Purchase Order, for the duration of the Work and until four years after the date of final payment by Purchaser to Supplier pursuant to this Purchase Order.
(c) Supplier shall ensure that Purchaser or its authorized representative will have access during normal working hours to all supplier and Subcontractor facilities, together with adequate and appropriate work space, to conduct audits in compliance as provided in this Article. Purchaser shall give Supplier and its Subcontractors reasonable advance notice of any such audits.
(d) Supplier agrees to maintain such records and accounts for a period of four years from the date of completion of this Purchase Order.
(e) Supplier shall require its Subcontractors to comply with the provisions of this Article by insertion of the requirements hereof in any subcontract for Work to be performed or goods to be supplied pursuant to this Purchase Order.
12.0 TAXES
Except as provided herein, Supplier shall pay all Taxes levied on the Work and in connection with Supplier’s performance hereunder, including applicable Taxes based on or related to the income, receipt, capital or net worth of Supplier, Supplier’s or its Subcontractors’ income, sales and use Taxes assessed against Supplier owned, leased or rented equipment, all personal property taxes assessed, if any, by any Governmental Authority with respect to or against any Supplier equipment located at the Work Site, and any amounts related to licenses and permits required for Supplier to carry on business or perform any Work or deliver any goods, but excluding (i) net income taxes or franchise taxes imposed on Purchaser and (ii) real property taxes assessed against the Work Site and any permanent use charges or assessments such as water or sewer, but excluding charges and Taxes for construction utilities and fuel to be supplied by Supplier as required hereunder which will be Supplier’s responsibility, except for such Taxes Purchaser contests in good faith. If applicable law or regulation requires the payment of any sales or use Taxes on account of this transaction which Tax is imposed upon Purchaser, then such amount of Tax will be accrued and paid directly by Purchaser to the state in which the Work Site is located as required by statute.
13.0 LIEN RIGHTS
Prior to making any payment, Purchaser in its sole discretion may require Supplier to furnish a release of claims or liens arising out of the Work, or consents of surety, or lien waivers or receipts from Supplier and its Subcontractors and suppliers. Upon request, Supplier shall furnish an affidavit acceptable to Purchaser stating that the releases and receipts include all the labor, services and material for which a lien could be filed. If any lien arises as a result of the Work, Supplier shall immediately take all steps necessary to obtain the release of such lien and indemnify the Purchaser Parties from and against the lien and any and all costs and expenses associated therewith, including reasonable attorney’s fees.
14.0 SETOFF
All claims of Purchaser for money due or to become due to Purchaser by reason of any Claim arising out of this or any other transaction with Supplier will be subject to deduction or setoff by Purchaser.
15.0 FORCE MAJEURE
If either Party is delayed in the performance of the Work or of any other obligation due to unforeseeable causes beyond the Party’s reasonable control, such as acts of God, acts of civil or military authority, fires, strikes (other than the affected Party’s personnel), floods, epidemics, quarantine restrictions, war, or riot, the date of delivery or performance of any other obligations hereunder may be extended for a period of time not to exceed the time lost by reason of the delay; provided, however, that the affected Party must use diligent efforts to avoid and/or mitigate the effect of such occurrence. Any party claiming a force majeure delay shall provide a prompt notice (not to exceed three Business Days) to the other party of such delay the cause thereof, the anticipated extent of such delay and the efforts being undertaken or planned to mitigate such delay.
16.0 TERMINATION
Purchaser reserves the right to cancel or suspend, at any time, by written notice, in whole or in part, this Purchase Order. Except in the case of termination for breach, Purchaser’s sole obligation will be to pay Supplier all amounts due and not previously paid to Supplier for goods furnished or services rendered in accordance with this Purchase Order. IN NO EVENT WILL PURCHASER BE LIABLE TO SUPPLIER FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OR ANTICIPATED PROFIT, OVERHEAD OR INDIRECT COSTS. Refusal or failure of Supplier to deliver the goods or perform the Work and/or services in accordance with the delivery schedule specified herein or within a reasonable time if no time is specified or failure to make reasonable progress such that timely performance of this Purchase Order in accordance with the terms has been endangered will be considered breach of this Purchase Order. The remedies herein will be in addition to and not in lieu of any other remedies Purchaser may have at law or equity.
17.0 PROPRIETARY INFORMATION & CONFIDENTIALITY
Supplier acknowledges that all information furnished by Purchaser to Supplier, the provisions of this Purchase Order and the work product delivered by Supplier pursuant to this Purchase Order is and will remain the proprietary and confidential information of Purchaser. Supplier shall not disclose any such information or work product to any other entity or person, or use such information or work product for any purpose other than performing Suppliers obligations under this Purchase Order unless Supplier obtains prior written consent from Purchaser. Supplier shall safeguard Purchaser’s information and work product with at least the same degree of care (which will always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information. Supplier shall not engage in any advertising, publicity, or other promotional activity that directly or indirectly mentions or refers to Purchaser, the relationship between the Parties, or the Work provided under this Purchase Order without Purchaser’s prior written consent. Supplier shall promptly return or destroy Purchaser’s information and work product upon the expiration or termination of this Purchaser Order or otherwise upon Purchaser’s written request. The foregoing restrictions will not apply to any information that becomes public without any breach of this Purchase Order, is already in Supplier’s possession and not under any confidentiality obligation or is developed independently by Supplier without reference to any of Purchaser’s confidential information. The terms of this Article will survive the termination or expiration of this Purchase Order.
18.0 GOVERNING LAW, EXCLUSIVE JURISDICTION
The definition of terms used, interpretation or construction of this Purchase Order and the rights of all Parties hereunder will be interpreted, construed and governed by the laws of Pennsylvania without reference to any provision that would direct the application of the substantive law of any other jurisdiction. The state and federal courts situate in Pennsylvania will have exclusive jurisdiction over all disputes between the Parties arising from, in connection with or relating to this Purchase Order and the prevailing Party in any such dispute will be entitled to a judgment including all of its costs (including attorneys’ fees) through final appeal in connection therewith.
19.0 LIMITATION OF LIABILITY
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR, AND EACH PARTY HEREBY WAIVES AND RELEASES THE OTHER PARTY FROM AND AGAINST, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AND CONSEQUENTIAL LOSS OR DAMAGE, WHETHER OR NOT FORESEEABLE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT OR NEGLIGENCE OF SUCH PARTY, ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS OF ANY TIER, AND WHETHER OR NOT BASED UPON BREACH OF CONTRACT OR WARRANTY, THE FAILURE OF ANY REMEDY HEREUNDER FOR WANT OF ITS ESSENTIAL PURPOSE, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORY OF LIABILITY.
(b) The limitations described in Article 19.0(a) are not intended to apply to:
(i) The actual costs incurred by Purchaser to procure replacement work in the event of any default by Supplier;
(ii) Any amounts paid by Purchaser to settle the claims or release the liens of any Supplier Parties or third parties payments made pursuant to Article 13.0 (Lien Rights);
(iii) Any amounts owned by Supplier pursuant to Article 10.0 (Warranties);
(iv) Any damages or amounts that may be provided for as part of any indemnity obligations in this Purchase Order; or
(v) The extent that Supplier is insured under policies of insurance being maintained pursuant to this Purchase Order.
(c) EACH PARTY’S TOTAL LIABILITY FOR ANY AND ALL LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH EACH PARTY’S PERFORMANCE OF THIS PURCHASE ORDER WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) WILL NOT EXCEED THIS PURCHASE ORDER PRICE EXCEPT, WITH RESPECT TO SUPPLIER’S TOTAL LIABILITY, AS IT APPLIES TO SUPPLIER’S OBLIGATIONS PURSUANT TO ARTICLE 5.0 (Insurance), ARTICLE 6.0 (Indemnity), ARTICLE 10.0 (Warranties), SUPPLIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND THE ACTUAL COSTS INCURRED BY PURCHASER TO PROCURE REPLACEMENT WORK IN THE EVENT OF ANY DEFAULT BY SUPPLIER.
(d) Supplier shall ensure that the provisions of this Article 19.0, Article 5.0 (Insurance), Article 6.0 (Indemnity), and Article 10.0 (Warranties) will also apply to Subcontractors to the fullest extent permitted by law and the Parties acknowledge that the foregoing provisions will survive termination of this Purchase Order and/or completion of the Work hereunder.
20.0 EQUAL EMPLOYMENT OPPORTUNITY
Supplier represents that it is in compliance with all applicable laws, regulations and orders with respect to equal employment opportunity and either has heretofore provided or will provide to Purchaser the certifications and representations regarding equal employment opportunity that Purchaser may require under such laws, regulations and orders. Without limitation of the foregoing, Supplier shall cause all Supplier Parties to abide by the requirements of 41 CFR 60-1.4(a)(7), 41 CFR 60-300.5(a), 41 CFR 60-741.5(a). 41 CFR 60-1.4(a)(7) prohibits discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action by covered prime contractors and subcontractors to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, sex, or national origin. 41 CFR 60-300.5(a) prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. 41 CFR 60-741.5(a) prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
21.0 COMPLIANCE WITH STANDARDS, CODES, LAWS, REGULATIONS, AND PERMITS
(a) Supplier shall comply with and shall cause all Supplier Parties to comply with all applicable laws, rules, permits and standards of all federal, state, local and municipal Governmental Authority having jurisdiction over the Work covered by this Purchase Order.
(b) Supplier shall, at its own expense, protect, defend, indemnify and hold harmless Purchaser Parties from and against all liability, loss or damages assessed against or incurred by any of Purchaser Parties (including reasonable attorneys’ fees and other court costs incurred by any party indemnified hereunder) or otherwise suffered by any party indemnified hereunder as a result of noncompliance by Supplier with this Article.
(c) Supplier shall secure and pay for all permits, governmental fees and licenses necessary for proper execution and completion of the Work, unless otherwise specified in this Purchase Order.
22.0 NOTICE
Except as otherwise provided herein, all notices and communications made hereunder will be deemed to have been delivered when they are received if delivered by U.S. Mail, return receipt requested, national overnight courier or email to the applicable Party representative designated on the header of this Purchase Order if such notice or communication is delivered before 5 PM Eastern Time on a Business Day. If such notice or communication is so delivered after 5 PM or on a day that is not a Business Day, then such notice or communication will be deemed to have been delivered on the next Business Day. Either Party may change its notice information by giving notice of the same to the other Party.
23.0 INDEPENDENT CONTRACTOR
Supplier will perform its obligations under this Purchase Order as an independent contractor and neither Party intends for this Purchase Order to create any joint venture, partnership or agency relationship with the other Party.
24.0 NON-WAIVER OF RIGHTS
The failure of Purchaser to insist upon strict performance of any of the provisions hereof, or its failure or delay in exercising any rights or remedies provided herein or by law, or Purchaser’s acceptance of, use of or payment for the Work, or any part or combination thereof, or any approval of Work by Purchaser, or any purported oral modification or rescission of this Purchase Order, or any part hereof, by any employee or representative of Purchaser will not release Supplier of any of its obligations under this Purchase Order and will not be deemed as a waiver of any of Purchaser’s rights to insist upon strict performance hereof or of any of Purchaser’s rights or remedies under this Purchase Order or by law, and will not operate as a waiver of any of the provisions hereof.
25.0 ASSIGNMENT
Purchaser reserves the right to assign this Purchase Order to its successors or Affiliates without further notice to or any consent from Supplier. Supplier shall not assign or subcontract any of its rights or obligations under this Purchase Order without Purchaser’s prior written consent. In no event will Purchaser’s written consent be construed as discharging or releasing Supplier from the performance of its obligations specified in this Purchase Order. Supplier will remain jointly and severally liable with any assignee of its rights or obligations. Any assignment made in contravention of this Article will be null and void for all purposes.
26.0 SUCCESSORS AND ASSIGNS
This Purchase Order will inure to the benefit of and be binding upon the Parties successors and permitted assigns.
27.0 SEVERANCE
Any provision of this Purchase Order that is prohibited or unenforceable in any applicable jurisdiction will, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions hereof or affecting the validity or enforceability of that provision in any other jurisdiction. Any provisions of this Purchase Order, which by their express terms or by their nature are continuing, will survive termination or expiration of this Purchase Order.
28.0 CONSTRUCTION AND INTERPRETATION
Supplier acknowledges that the Parties participated jointly in negotiating and drafting this Purchase Order and that any ambiguity should be construed as if drafted jointly by the Parties. The words “include”, “includes”, and “including” mean “including without limitation”.
29.0 ENTIRE AGREEMENT
A Purchase Order and any additional terms and conditions incorporated into and attached hereto or referenced herein, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any previous or contemporaneous agreement whether written, oral or formed by a course of dealing. Parol or extrinsic evidence will not be used to vary or contradict the express terms of this Purchase Order, and recourse may not be had to alleged prior dealings, usage of trade, course of dealing, or course of performance to vary or contradict the express terms of this Purchase Order. This Purchase Order may not be amended or modified, and no waiver of any provision hereof will be effective, unless set forth in a written instrument authorized and executed by duly authorized representatives of both Parties.
30.0 COUNTERPARTS & COPIES
A Purchase Order may be executed in more than one counterpart, , each of which will be deemed as valid as another, but all of which will constitute one and the same instrument. True copies of this Purchase Order will be as valid for all purposes as original versions.