SUBCONTRACTOR TERMS AND CONDITIONS
The following terms and conditions are incorporated into any purchase order between Industrial Thermal Systems, Inc. (“Buyer”) and the vendor (“Seller”) including, but not limited to any purchase order submitted by Seller, a purchase order acknowledgment executed by Buyer, any Request for Quote or Request for Proposal, or other contract documents between the parties (“Contract Documents”). The acceptance of any purchase order or contract by Buyer is made expressly conditional upon Seller’s agreement to these terms. The parties intend that these terms shall exclusively control the relationship of the parties with respect to the goods being sold, and all services performed, by Seller and in the event of any inconsistency between any purchase order, PO acknowledgment, invoice or acceptance form and these terms, these terms shall control and shall be binding on the parties. Under no circumstances shall the Contract Documents include any terms and conditions proposed by Seller whether included on any purchase order, invoice or written acceptance unless such terms are expressly acknowledged, in writing and executed by an authorized person on behalf of Buyer.
The goods subject to this sale and which Seller shall deliver to Buyer and for which Buyer shall pay, shall conform to the specifications (“Specifications”) set forth in the purchase order, as well as in the Request for Quote (“RFQ”). To the extent incidental services are performed by Seller under the Contract Documents, such incidental services shall be governed by these Terms and Conditions.
2. BUYER’S INSPECTION OF GOODS:
Buyer shall inspect and delivered goods or deliverables within seven (7) working days after delivery to the project site. Buyer’s inspection of the goods, deliverables or services shall not be deemed to be acceptance of such goods nor waive any warranty claim related thereto.
3. NOTICE OF CLAIMS:
Buyer shall have the right to reject and refuse acceptance of materials or equipment that are not in accordance with the Specifications or Seller’s warranty. Buyer may deduct from any amount owed to seller under this Purchase Order, the reasonable cost of inspecting materials or equipment which is rejected. Materials or equipment not accepted shall, at buyer’s option, be returned to Seller at Seller’s expense, held by buyer at Seller’s expense, retained by Buyer for an equitable reduction in price or repaired by Buyer at Seller’s expense. Payment for any materials or equipment shall not constitute acceptance. Acceptance by Buyer shall not constitute acceptance as to latent or hidden defects not subject to discovery upon reasonable inspection.
Seller hereby acknowledges and understands that the misuse, neglect or improper installation and care of the goods constitutes a hazard, which can result in loss of life, serious personal injury, heavy property or business damage, examples of which include, but are not limited to, the following: (i) the improper installation or application of the goods; installation or use of the goods with improper wiring, piping, or ventilation; improper system design or engineering; inadequate inspection or testing; (ii) the lack of regular careful maintenance of goods, its consumable parts, and any equipment in connection with which the goods is used; (iii) the employment of insufficient or unqualified personnel; (iv) the lack of careful supervision, proper warnings, operating instructions, and safety precautions; and (v) the exposure of the Goods to excessive heat, moisture, dust, dirt, corrosion, or any other deleterious condition. Seller shall take, and shall instruct and require its employees, contractors, and others to take, all reasonable measures to avoid each such hazards. SELLER ACKNOWLEDGES AND ASSUMES ALL RISKS OF THE MISUSE, NEGLECT, AND IMPROPER INSTALLATION AND CARE OF THE GOODS AND HEREBY RELEASES BUYER FROM ANY SUCH CLAIMS ON BEHALF OF ITSELF, ITS EMPLOYEES, CONTRACTORS AND AGENTS.
Seller warrants that any goods or deliverables are within the Specifications and that any services are provided in a professional and workmanlike manner. For a period of eighteen (18) months after delivery of the goods or performance of the services, Seller warrants any goods or deliverables to be free from defective material and workmanship and Seller shall furnish free of charge any goods, or any part or parts thereof, to make any good conform with the Specifications or otherwise correct any defect in the same or any fault in material or workmanship of Seller. Goods not of Seller’s manufacture or assembly shall be warranted by the manufacturer of the goods. Any services to be provided by Seller shall be provided in a good and workmanlike manner by skilled personnel, consistent with all applicable standards within the industry. If Buyer discovers any defect or error in such services within eighteen (18) months after the performance thereof, Buyer shall correct such error or provide additional services necessary to conform with the Specifications or applicable standards within the industry.
Orders may be cancelled by Buyer at any time upon notice to the Seller. Upon any cancellation not by Buyer, the sole liability of Buyer shall be to pay Seller its actual and reasonable cost of furnishing materials or equipment to the date of termination. In no event shall Buyer be responsible for any loss of profits.
Time is of the essence of the Contract Documents. Seller shall provide Buyer with any scheduling information proposed by Seller, including, but not limited to delivery schedules. Notwithstanding the foregoing, Seller shall not be responsible for any delay or failure to deliver due to causes beyond its control, including, but not limited to, accidents, casualty, strikes or other labor disputes, acts of God, delays in transportation, government regulations and shortages. All dates are contingent on strikes, accidents, delays by common carriers, or any other causes unavoidable or beyond the control of the Seller. The Seller shall provide Buyer with immediate notice of any circumstances that may cause a delay in delivery. The Buyer may, in its discretion, terminate a purchase order that is subject to such delay.
8. PROPRIETARY INFORMATION:
In connection with the performance of Seller’s obligations under the purchase order, Seller may have access to certain confidential or proprietary information belonging to Seller or Seller’s client. All confidential and proprietary information disclosed to Seller by Buyer shall be considered “Proprietary Information” including, but not limited to any (i) all drawings, specifications, data and any other information included in the Contract Documents and any technical information, patentable information, copyright, trade secrets and other intellectual property related to the goods, its design and functionality, or the installation of the same, regardless of whether such disclosure is included in the Contract Documents or otherwise disclosed by Buyer; (ii) any processes, concepts, devices, machines, systems, techniques, know-how, designs, drawings, documents, records, data compilations, computerized records, CAD data, specifications, information, or special purpose manufacturing prototypes or samples, photographs, videotapes, models, molds, prototypes or other items supplied to Buyer by Seller; and (iii) any information or intellectual property that is developed, discovered, or acquired by Seller in the course of performing its obligations hereunder. Seller hereby acknowledges that all of the ownership interest in such Proprietary Information shall remain with Buyer or its client, as applicable. Seller further acknowledges any modifications, changes or contributions made by Seller to such proprietary information shall be made as a work made for hire and shall be owned by Buyer or its clients. To the extent that any intellectual property rights in and to such Proprietary Information does not automatically vest in Buyer, Seller hereby assigns to Buyer and will be deemed to have assigned to Buyer all rights, title and interest in and to all such intellectual property rights including any copyright, trademark, trade secret, patent or other proprietary rights in such Proprietary Information. Seller will enter into written agreements to perfect Buyer or its client’s rights in such work product. Seller additionally will enter into written agreements with its employees, subcontractors or agents reasonable acceptable to Buyer or to acquire such assignments, rights and covenants so as to assure that Buyer will receive the rights provided for in this section.
9. CONFIDENTIAL INFORMATION:
Buyer hereby acknowledges that the protection of the Proprietary Information and all other information derived by Seller from the Proprietary Information (collectively, the “Confidential Information”) is valuable information, the protection of which is essential to Buyer’s business. Accordingly, Buyer shall not, and shall not permit any related parties or any other person under the control of Buyer, to (i) communicate, disclose, describe, characterize, duplicate, imitate or otherwise make known any Confidential Information to any person or entity not bound by a confidentiality agreement directly with Seller; or (ii) use any Confidential Information for Buyer’s financial benefit or the financial benefit of any employee, officer, director or agent of Buyer or for any other purpose. Buyer shall (y) take all reasonable steps to keep the Confidential Information confidential; and (z) expressly require, through appropriate legal documents, each of Buyer’s directors, officers, employees, independent contractors, subcontractors and agents exposed to any of the Confidential Information to keep all Confidential Information confidential. Buyer shall limit the use and circulation of the Confidential Information within Buyer’s organization to the maximum extent possible. The obligations to maintain secrecy and confidentiality set forth herein shall continue indefinitely and shall survive termination of the Contract Documents. To the extent that Buyer and Seller have executed a confidentiality agreement and there is any conflict between these terms and conditions and such confidentiality agreement, the more comprehensive and restrictive terms protecting the Confidential Information shall apply.
10. COMPLIANCE WITH LAWS:
Seller shall comply with all federal, state and local laws, regulations, codes and ordinances applicable to Seller, Buyer and or the incidental services covered by the Contract Documents including, but not limited to any such laws relating to health and safety of any person, the environment, hazardous substances, labor and employment, immigration, and civil rights. Seller shall defend, indemnify and hold Buyer harmless from any loss, cost and expense attributable to any act or omission by Seller resulting from its failure to comply with any applicable laws including but not limited to any fines, penalties or corrective measures and any costs and reasonable attorney’s fees.
11. PAYMENT TERMS:
The purchase order will set forth the payment terms; provided that such payments shall generally mirror the payment terms between Buyer and its client, if applicable. Prior to receiving any payment under a purchase order, if applicable, Seller shall execute such documents, including, but not limited to lien waivers, as required by Buyer or its client.
All prices are based on delivery F.O.B. Cincinnati, Ohio. Buyer should state method of shipment preferred. Shipping instructions furnished by Buyer shall be strictly complied with and shall be considered a part of the Contract Documents. There shall be no additional charges to Buyer for packing. Seller shall insure shipments at full value. Seller assumes risk of damage or loss in transit.
Prior to providing any services under this purchase order, Buyer shall purchase and maintain such insurance and in such amounts as set forth in Exhibit 1 attached hereto. Buyer shall deliver to Seller a Certificate of Insurance as required in the Exhibit listing Buyer as an additional insured.
To the fullest extent permitted by law, Seller shall indemnify, defend and hold Buyer, its agents, consultants, employees and contractors harmless from and against any and all claims, costs, liabilities including all costs and reasonable attorney fees incurred for damages or injuries to persons or property which arise out of or are related to any defective materials or workmanship in the goods or services furnished by Seller and any failure of Seller to fulfill its obligations under these terms and conditions including, but not limited to its failure to adhere to the warnings provided herein or to properly advise its employees, contractors or agents of such risks.
Unless noted differently on our Purchase Order, Payment will be Net-45 Days from date the materials are received or from date of receipt of invoice for services rendered. If and when requested by Buyer, Seller shall promptly provide affidavits that all of Seller suppliers have been paid and release all liens either by Seller or its suppliers and claims executed by Seller to Buyer in a form suitable to Buyer. Such releases or waivers of lien may be conditioned upon payment. Prior to final payment, Seller shall provide to Buyer copies of warranties, applicable manuals and all other closeout documents required for the materials or equipment by the Contract Documents.
Seller shall be responsible for the collection of all applicable local, state and federal excise, sales and use taxes which taxes shall be stated separately on Seller’s invoice.
17. NO ASSIGNMENT:
Seller may not assign its right or delegate its performance under the purchase order without Buyer’s written consent. Any attempted assignment or delegation without such notice shall be void.
This agreement shall be construed according to the laws of the State of Ohio including the Ohio Uniform Commercial Code. Venue shall be in Cincinnati, Hamilton County, Ohio.
19. FULL AGREEMENT:
The purchase order and the foregoing Terms and Conditions constitute the full agreement of the Buyer and Seller, and no term, condition, understanding or agreement shall be binding unless made in writing and signed by the party to be bound.
Buyer’s failure to insist on the performance of any term, condition, or instruction or to exercise any right or privilege provided in the Contract Documents or its waiver of any breach shall not thereafter waive any such term, condition, instruction and or right or privilege.
BY PERFORMING ITS OBLIGATIONS UNDER ANY APPLICABLE PURCHASE ORDER, SELLER HEREBY ACCEPTS ALL OF THE TERMS AND CONDITIONS HEREUNDER AND AGREES TO BE BOUND THEREBY.