Terms
1. General
This purchase order (PO) may be used by BUYER as an offer or acceptance. If used as an offer, the PO is expressly limited to its terms and constitutes notice of objection to any additional or different terms. If used as an acceptance, the PO is expressly conditioned on VENDOR’s assent to any additional or different terms contained in the PO.
This PO consists of and is expressly limited to and made conditional upon VENDOR’s acceptance of the terms, conditions, specifications or documents referenced on the face and back hereof. This PO constitutes the entire agreement of the parties and may not be modified, altered, or amended in any way except in writing signed by a duly authorized representative of BUYER’s General Terms and Conditions, technical specifications, and special terms and conditions, if any, referenced herein, BUYER’s special terms and conditions, General Terms and Conditions, and technical specifications shall govern in that order.
In the event of any conflict between this PO and any proposal of VENDOR, this PO shall govern. VENDOR shall execute and return to BUYER an acknowledgement of the PO prior to shipping goods or performing services. By shipping goods or performing services called for by this PO VENDOR agrees to the terms and conditions of this order.
2. Sales Tax
The prices specified herein for goods include sales, use, excise or similar taxes; consequently, in addition to the price of goods, any sales use, excise or similar taxes presently applicable to or hereafter levied on the sales of the goods shall be paid by BUYER.
In lieu of such payment, BUYER may provide VENDOR with a tax exemption certificate acceptable to the taxing authorities. VENDOR shall be responsible for paying and withholding taxes applicable to charges for services.
3. Risk of Loss
Deliveries must be made to the address and to the attention of the person indicated on the front page if this PO. VENDOR shall be responsible for and shall bear any and all costs, risk of loss or damage to any equipment, samples, or materials until delivered to BUYER’s site.
Upon such delivery, risk of loss or damage shall pass to BUYER; provided however, any loss or damage whenever occurring, which results from VENDOR’s improper packing or crating or handling shall be borne by VENDOR.
4. Quantities
The specific quantity ordered must be delivered in full and not be changed without BUYER’s written consent. Any unauthorized quantity is subject to our rejection and return at VENDOR’s expense.
5. Price
If price is not stated in this PO, it is agreed that the goods and/or services as specified in this PO shall be billed at the price last quoted, or billed at the prevailing market price, whichever is lower. This PO must not be filled at a higher price than last quoted or charged without BUYER’s specific authorization.
6. Additional Charges
No additional charges of any kind, including charges for boxing, freight, packing, cartage, or other extras will be allowed unless specifically agreed to in writing in advance by BUYER. BUYER shall not be obligated to pay any amount in excess of that which is specified on the face of the PO.
7. Payment
All applicable discounts received as specified in this PO will be computed from the date the goods and/or services are received or from the date a correct invoice is received, whichever is later. C.O.D.s will not be accepted. Drafts will not be honored.
8. Waivers/Withholding of Payments
BUYER’s failure to insist upon strict performance of any provision of this PO by VENDOR or to take advantage of any of its rights here-under, shall not be construed as a waiver by BUYER of any such provision or the relinquishment of any of its rights and remedies.
All claims for money due or which become due from BUYER shall be subject to set off by BUYER because of any claim arising out of this PO or any other transaction with VENDOR.
VENDOR shall immediately cause any liens or lien claims filed against BUYER’s property by VENDOR or any of its subcontractors or suppliers of any tier to be discharged. BUYER shall have the right to withhold and deduct the amount of any such lien or lien claim from the amount due VENDOR and, at BUYER’s option, pay the lien claimant directly.
9. Applicable Law
VENDOR represents that the goods and/or services provided hereunder were not produced, sold, delivered and/or furnished in violation of any federal, state or local law.
VENDOR shall be responsible to BUYER for compliance with all safety laws, rules and regulations during VENDOR’s performance of the services in connection with each Project including, without limitation, those laws, rules and regulations established under the Federal Occupational Safety Act of 1970, as amended.
VENDOR shall indemnify BUYER from and against all fines, penalties and corrective measures resulting from acts or omissions by VENDOR, its subcontractors, materialmen, agents, employees or assigns, in respect of their failure to comply with such safety laws, rules and regulations.
VENDOR shall notify BUYER immediately following any accident and promptly confirm the notice in writing. A detailed written report shall be furnished if requested by BUYER.
10. Labor Laws/Equal Employment Opportunity/Affirmative Action
VENDOR certifies that it does not discriminate against its employees or applicants for employment and is in compliance with all state and federal law or laws including those against discrimination, including, but not limited to, Executive Orders 11141, 11246, 11458, 11625, 11701 and 11768.
VENDOR certifies that its facilities are not segregated and that it complies with the Equal Opportunity Clause (CFR 60-1.4), the Affirmative Action Clause for Handicapped Workers (CFR 60-250.4), and the Affirmative Action Clause of Disabled Veterans and Veterans of the Vietnam Era (CFR 60-741.4), which are incorporated herein by reference.
VENDOR shall be familiar with Section 210, “Employee Protection,” of the Energy Reorganization Act of 1974, 42 U.S.C. 5851, as amended, Title 10 of the Code of Federal Regulations, Section 50.7, “Protection of Employees Who Provided Information,” and 29 CFR part 24, hereinafter, “Whistleblower Provisions.”
VENDOR shall implement a program and develop procedures to advise all employees that they are entitled and encouraged to raise safety concerns to VENDOR’s management, to BUYER, and to the NRC without fear of discharge or other discrimination.
In the event of any allegation to VENDOR by an employee of discriminatory acts prohibited by the Whistleblower Provisions or any indication that an employee intends to seek or has sought a remedy under the Whistleblower Provision before the Department of Labor, VENDOR shall notify BUYER within two (2) days thereof.
11. Warranty
VENDOR expressly represents and warrants that all goods and/or services covered by this PO or other description or specification furnished by BUYER will be in exact accordance with such PO, description or specification and free from defects in material and/or workmanship, and merchantable.
Such warranty shall survive delivery and shall not be deemed waived either by reason of BUYER’s acceptance of said goods and/or services or by payment for them.
Any deviations from this PO or specifications furnished hereunder, or any other exceptions or alterations must be approved in writing by BUYER’s Purchasing Department.
If within two years from the date of placing any goods into the service for which they were purchase, or acceptance of any services the goods and/or services do not conform to the above warranties and BUYER so notifies VENDOR within a reasonable time after its discovery, VENDOR shall promptly correct such nonconformity at VENDOR’s sole expense, including costs of transportation to any other location designed.
The correction of such nonconformity shall in turn be warranted for two full years from the date of correction.
12. Delay
Time is of essence for VENDOR’S performance and timely delivery of the equipment, services and/or labor. Failure to timely deliver may result in damages to the BUIYER for which the VENDOR is responsible.
To the extent the BUYER’s contract for the use of VENDOR’s equipment, service or labor contains a liquidated damages clause such clause shall be a right of set off against the VENDOR if it fails to timely perform resulting in liquidated damages being assessed against the BUYER.
13. Termination
Without prejudice to any or its rights or remedies, BUYER may terminate all or any part of this PO without any liability or obligation whatsoever in the event that VENDOR defaults, fails to provide goods or services on time, provides nonconforming or defective goods or services, fails to provide BUYER, upon request, with adequate assurances of future performance, or otherwise breaches any of the provisions of this PO.
BUYER may also terminate all or any part of this PO for its convenience upon written notice to VENDOR, in which case VENDOR shall be paid the percentage of the PO reflecting the percentage of goods or services provided prior to notice of termination, plus actual direct costs resulting from BUYER’s termination, less the disposal or retention value of termination inventory.
The foregoing amounts shall include a reasonable sum as profit for any work performed by VENDOR.
In the event of such termination, VENDOR shall immediately stop all work hereunder and shall immediately cause any of its suppliers or subcontractors to cease work or deliveries.
BUYER shall not be liable or obligated in any way for goods or services provided after receipt of notice of termination or for any costs incurred by VENDOR’s suppliers or subcontractors which VENDOR could have avoided.
The foregoing shall constitute BUYER’s entire liability or obligation and VENDOR’s exclusive remedy for such termination.
Any claims under the paragraph must be made in writing within 30 days after the date of the termination notice, and VENDOR shall provide BUYER with detailed documentation for such claims within 30 days thereafter.
14. Inspection and Acceptance
All goods and/or services supplied under this PO are subject to BUYER’s right of acceptance and rejection. Defective goods and/or services, which do not conform to this PO, may be rejected and will be returned at VENDOR’s expense.
If an inspection discloses that part of the goods received are not in accordance with BUYER’s specifications, BUYER shall have the right to cancel any unshipped port of the PO.
Payment for goods on this PO prior to the inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that BUYER has against VENDOR.
15. Proprietary Interests
All goods and/or services provided hereunder shall not violate or infringe on any patent, copyright, trademark, or proprietary interest.
All works on original authorship provided under this PO shall be deemed works made for hire, and BUYER shall own all intellectual property rights to such works.
If the use of any goods and/or services provided hereunder, shall in any suit or proceeding be held to constitute an infringement and the use thereof be enjoined, VENDOR shall, at its sole expense, either procure for BUYER the right to continue to use such goods and/or services, replace them with non-infringing items, or so modify them that they become non-infringing.
Any substituted non-infringing items shall be in quality and performance equal to or better than the items replaced.
VENDOR shall defend, indemnify and hold harmless BUYER, its vendees and customers, from and against any claims or suits for infringement or violation of patent, copyright, trademark or proprietary interests arising out of the goods and/or services being provided hereunder.
16. Indemnification and Liability
VENDOR shall defend, indemnify, and hold harmless BUYER against any claims or suits brought by any persons or entities (including, but not limited to, VENDOR’s employees) alleging that any bodily injuries, deaths, property damage, or economic losses were caused, in whole or in part, by any goods and/or services provided under this PO to BUYER, except, however, that VENDOR shall not be obligated to indemnify BUYER for its sole negligence.
17. Insurance
VENDOR shall maintain insurance coverages in type and amounts customary to its business.
Upon request, VENDOR shall provide BUYER with evidence of insurance coverage in the form of insurance certificates, which shall be furnished by VENDOR before the start of work and/or delivery under this PO.
All liability policies of insurance shall be name BUYER and any additional entities as additionally insured, as necessary.
All other insurance coverage required shall be specified in the description of work section of the PO.
Insurance policies may not be canceled or changed without first giving BUYER thirty (30) days prior written notice.
VENDOR’s liability under this PO is not limited to the amount of insurance coverage required.
18. Advertising
VENDOR shall not use BUYER’s name, photographs, logo, trademark, or other identifying characteristics or that of any of its subsidiaries or affiliates without BUYER’s prior written approval.
19. Dispute Resolution
Any dispute between the parties shall be resolved in court/arbitration.
The exclusive venue for any proceeding brought under the terms and specifications is the State of Rhode Island before a single arbitrator whose decision shall be binding and enforceable in a court of competent jurisdiction in Rhode Island.
20. Governing Law
This PO shall be construed in strict accordance with and governed exclusively by the laws of the State of Rhode Island without regard to Rhode Island conflict of law provision.
21. Assignments
VENDOR may not assign this PO as a whole or in part to any other party without BUYER’s prior written consent.
BUYER has the right to transfer its rights and liabilities under this PO to a third party without the VENDOR’s approval.