Fort Smith Industrial Supply, LLC General Terms and Conditions
Updated: September 01,2021
Notice: the offer, order acknowledgment, order acceptance, or sale of any equipment or services covered herein is conditioned upon the terms contained in this purchase order. Any additional or different terms proposed by seller are objected to and will not be binding upon buyer unless specifically assented to in writing by buyer. In any event, seller’s commencement of work under the purchase order shall be deemed to be seller’s assent to buyer’s terms and conditions.
“Buyer” shall mean the company designated as the “Buyer” on the first page of the Purchase Order. “Seller” shall mean the company designated as the “Seller” on the first page of the Purchase Order. “Customer” means the entity with which Buyer has a contract for which Seller’s Work is being purchased. “Purchase Order” shall mean this document and all of its appendices. “Work” shall mean the equipment, services and other obligations provided and to be provided by Seller under this Purchase Order. “Equipment” shall mean goods, equipment and/or materials furnished and to be furnished by Seller as part of the Work under this Purchase Order. “Services” shall mean any services performed by Seller as part of the Work under this Purchase Order.
Buyer shall have the right, by written change order, to make changes, deletions and/or additions to the Work covered by this Purchase Order. If such changes materially increase or decrease Seller’s cost or the time for performance, an equitable adjustment will be negotiated, and this Purchase Order shall be modified accordingly. Any claim for adjustment must be asserted by Seller within ten (10) days after receipt of any such change order and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change. Lack of such notice shall be an absolute bar to any claim. Seller shall immediately proceed with the change(s) pending resolution of any dispute.
(a) Time is of the essence. Seller guarantees completion of Work by the dates stated in this Purchase Order. Seller shall promptly notify Buyer of any actual or anticipated delay in delivery and shall take all reasonable steps to avoid or end delays without additional cost to Buyer. If Seller does not comply with Buyer’s delivery schedule, Buyer may require delivery by fastest way with charges absorbed by the Seller. In the event that Seller fails to timely deliver Equipment to Buyer or repudiates its obligations to deliver the Equipment, in whole or part, Buyer shall, in addition to any and all other rights, have the right to take immediate possession of all completed and partially completed Equipment identified to the Purchase Order. Seller shall undertake all reasonable means to facilitate Buyer’s efforts. In addition, Buyer shall be entitled to recover any and all damages that it incurs as a result of Seller’s failure to perform Work as scheduled. The rights and remedies of the Buyer provided in this article shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Purchase Order.
(b) Any delay of performance by either party shall not constitute default hereunder or give rise to any claim for damages or otherwise to the extent caused by an act, event or occurrence beyond the reasonable control of, not resulting from the fault of, and which could not be reasonably foreseen or provided against (”Force Majeure”) by the party claiming the event or occurrence. Upon the occurrence of any event of Force Majeure, the affected party shall (a) within three (3) working days of the event provide notice to the other party of such event in writing and (b) diligently pursue all reasonable efforts to minimize the effect of any such event of Force Majeure on Seller’s Work and restore such party’s ability to perform hereunder. To the extent that any event of Force Majeure actually delays Seller’s ability to perform hereunder, unless Buyer exercises its rights to suspend or terminate performance of the Purchase Order, Seller shall be entitled to an equitable adjustment to the schedule when available but shall not be entitled to any adjustment to the Purchase Order price
Seller shall defend, indemnify and hold harmless Buyer, Customer, all related entities of Buyer and Customer, and employees and agents and assigns of each (hereinafter “Indemnitees”) from and against any loss, damage, liability, claim, demand and expense (including without limitation, reasonable attorneys’ fees) arising out of any injury (including death) to any person, contamination of or adverse effects on the environment, damage to any property, any violation of any governmental law or regulation or breach of performance of Buyer’s contract with its Customer resulting from or in any way connected with the Seller’s performance or non-performance of the Purchase Order or the Equipment and/or Services furnished hereunder, regardless of whether or not such loss, damage, liability, cost or expense is caused in part by the acts, negligence or omissions of an Indemnitee. The foregoing shall not apply to damage or injury caused by the sole negligence, recklessness or intentional act of such Indemnitee. Notwithstanding any provision of the Purchase Order to the contrary, Seller’s indemnification obligations under the Purchase Order shall in no way be limited by the limitation on amount or type of damages, compensation or benefits payable by or for Seller, or any third party under any workers’ compensation act, employer liability act, disability benefit act or other employee benefit act.
5. Inspection and Receipt of Equipment:
All Work covered by this Purchase Order is subject to inspection, testing and final acceptance or rejection by Buyer and its Customer at all times and places, including the period of manufacture and in any event prior to final acceptance by the Buyer and its Customer. If within a reasonable time after delivery, Buyer finds the Work to be defective in workmanship or materials or otherwise not in conformity with the Purchase Order, Seller shall be obligated to promptly undertake corrective action at its sole expense to cause the Work to be brought into conformity with the Purchase Order. If Seller fails to deliver such required replacements or other required corrective action promptly, Buyer may: (i) replace such Work and charge Seller with the cost and damages thus incurred, including reasonable charges for administration, or (ii) terminate this Purchase Order for default. No inspection, test, or acceptance of Work or review or approval of any drawings, designs or other material by Buyer or its Customer shall relieve Seller of its warranty obligations or other obligations to meet the requirements hereof. Rights granted to Buyer herein are in addition to any other remedies provided by law or the Purchase Order. By acceptance of this Purchase Order, Seller agrees to provide Seller facility access and inspection to Equipment, manufacturing processes and related information to Buyer, Customer or their authorized representatives immediately upon request by Buyer.
In no event shall either party to this Purchase Order be liable to the other (in contract or in tort, including negligence) for special, indirect, incidental or consequential damages including, but not limited to, interest or carrying charges on its investment, expenses arising from costs of capital, loss of profits on work not performed, or for loss of use of, or under-utilization of labor, equipment or facilities. Notwithstanding the foregoing, Seller acknowledges that the Purchase Order includes explicit quality requirements, and agrees that no limit of the type or amount of Seller’s liability shall apply where Seller’s failure to follow such quality requirements results in loss or damage. Seller shall at all times continue to perform the Work as directed without delay, regardless of the existence of any dispute.
Seller shall at its sole expense indemnify, hold harmless and defend Buyer and Customer and employees, agents and assigns of each from and against, any suit or proceeding brought against Buyer and/or Customer based on a claim that the manufacture, use or sale of any Equipment, Work or Services, or any part thereof, supplied under this Purchase Order constitutes infringement of any patent, copyright, trademark, or proprietary information right of others, and Seller shall pay all damages and costs awarded therein against Buyer, Customer and/or employees, agents and assigns of each. In case said Equipment or any part thereof is in such suit held to constitute infringement or the sale or use of said Equipment or parts is enjoined, regardless of whether such determination constitutes a final judgment, Seller shall, at its expense, either procure for Buyer and Customer the right to sell and use said Equipment or part, or replace same with substantially equal non-infringing Equipment; or if approved by Buyer, remove said Equipment and refund the Purchase Order price and the transportation and installation costs thereof.
8. Confidentiality and Buyer’s Property:
Any specifications, drawings, manufacturing data and other information transmitted or otherwise provided by Buyer to Seller in connection with the purpose for which Buyer contacted Seller (including any quotation or Purchase Order) are proprietary and confidential (“Confidential Information”), and are and shall at all times remain the sole property of Buyer. Seller shall not, at any time, disclose or in any manner reveal such Confidential Information obtained from Buyer to any third party, nor reproduce, copy, or use such Confidential Information other than in the performance of the Purchase Order. Seller shall require any person receiving access to the Confidential Information in the performance of the Work to be bound by all of the terms of this Article as and to the same degree as Seller. Upon Buyer’s request, on completion of the purpose for which such Confidential Information was provided, all documents, information, and copies thereof shall be promptly returned to Buyer and Seller shall destroy any materials in its possession which contain any portion of the Confidential Information. The obligations contained in the Purchase Order shall survive any cancellation, termination, or completion of any order placed pursuant to the Purchase Order. All special tools, dies, patterns, jigs and fixtures supplied by Buyer or paid for by Buyer shall remain Buyer’s property and Seller agrees to comply promptly with all disposal and shipping instructions furnished by Buyer. Seller agrees, at its expense, to maintain all property in its possession, which belong to Buyer, in good condition and repair, and adequately insured, and to indemnify Buyer for all damage or loss to such property. This Clause governs all matters of confidentiality between the Parties; provided, however, that if the Buyer and Seller have already entered into a non-disclosure or confidentiality agreement, the terms of that non-disclosure or confidentiality agreement will govern all matters of confidentiality, except as expressly stated otherwise in the Purchase Order main document.
9. Risk of Loss:
Deliveries shall be made DAP “Named Location” INCOTERMS 2010 unless otherwise specified in the Purchase Order. Risk of loss of the Equipment shall pass to Buyer upon completion of delivery and assumption of care, custody and control by Buyer, provided, that any loss of damage which results from Seller’s non- conforming packaging or crating shall be borne by the Seller.
10. Shipment and Transportation:
Seller’s quoted prices shall include packing, freight and transportation to DAP “Named Location” INCOTERMS 2010, unless a different term is stated on the face of the Purchase Order. Seller shall not make any partial shipments or deviate from the shipping dates without Buyer’s written consent.
Seller shall not subcontract any portion of the work without prior written approval of Buyer. Unless otherwise specified, this restriction shall not apply to purchases of raw materials or standard commercial items or services.
12. Substitution of Materials:
No substitutions of materials or accessories shall be made without prior written permission from Buyer.
Buyer may, at any time, by written notice to Seller, suspend performance of all or any portion of the Work. Said notice of suspension shall specify the effective date of suspension and the estimated duration of the suspension. Upon receiving any such notice of suspension, Seller shall promptly suspend further performance of this Purchase Order to the extent specified, and during the period of such suspension shall properly care for and protect all work in progress and materials, supplies and equipment Seller has on hand for performance of this Purchase Order. Buyer may, at any time, withdraw the suspension or performance of Work as to all or part of the suspended Purchase Order by written notice to Seller specifying the effective date and scope of withdrawal, and Seller shall resume diligent performance of the Purchase Order.
14. Termination for Convenience or Default:
(a) Buyer shall have the right to terminate this Purchase Order for its convenience, in whole or in part, at any time by written notice whenever it determines such termination to be in its best interest. In such event, Seller shall promptly comply with the directions contained in such notice and shall, subject to such direction, (1) take all necessary action to terminate the Work as provided in the notice, minimizing costs and liabilities, (2) protect, preserve and deliver any property related to this Order which is in Seller’s possession pursuant to Buyer’s direction; and (3) continue the performance of such part of the Work, if any, as may not have been terminated by the notice. Upon such termination, Seller shall be entitled to compensation for Work completed as of the termination date plus actual direct costs incurred as a result of termination and reasonable overhead and profit on such completed Work, but not including loss of any business opportunity, indirect, incidental or consequential damages or lost profits on unperformed Work. Reimbursement amount is subject to amounts previously paid to Seller, satisfactory documentation of Seller’s costs, reasonable efforts by Seller to minimize such costs and adherence to other instructions from Buyer.
(b) Buyer shall have the right to terminate this Purchase Order for default, in whole or in part, by written notice to Seller if: (1) Seller fails to deliver items and materials or to perform the services within the time or in the manner provided under this Purchase Order, or (2) Seller becomes insolvent or makes an assignment for the benefit or creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings or (3) Seller fails to diligently commence correcting defective or non-conforming Work within seventy-two (72) hours after notice thereof has been given to Seller, or (iv) a material breach of any of the other terms of the Purchase Order which remains uncorrected for an unreasonable period after notice thereof has been given to Seller. In the event Buyer terminates this Purchase Order, in whole or in part, for default, Buyer may procure, upon such terms as Buyer may deem appropriate, items, materials and services similar to those so terminated and Seller shall be liable to Buyer for any excess costs in order to obtain such similar items, materials and services in a timely manner and for any and all other damages incurred by Buyer as a result of Seller’s default. In addition, Buyer may, at its option, require Seller to deliver to Buyer any completed or partially completed Equipment related to this Purchase Order.
15. Waiver of Terms:
Any waiver of terms and conditions of this Purchase Order shall not prevent Buyer from thereafter insisting upon complete compliance with the terms and conditions set forth in this Purchase Order, with respect to subsequent deliveries of Equipment or Services, and shall not constitute a waiver of any other terms and conditions.
Seller warrants that all Work, Equipment and Services sold pursuant hereto (a) shall be new and of good quality; (b) shall conform to the specifications set forth, and all other specifications, drawings, and descriptions furnished, specified, or adopted in the Purchase Order; (c) shall be suitable and sufficient for their specified purpose as expressed in the Purchase Order; (d) shall be free of any claim of any third party; and (e) without in any manner limiting or qualifying the duration, extent or nature of the foregoing warranties, shall be free from defects in design, workmanship, and material. The Warranty Period shall be the earlier of: one (1) year after first use or eighteen (18) months from completion of delivery unless a different Warranty Period is stated on the face of this Purchase Order. If a manufacturer offers a warranty on selected Equipment which is longer than Seller’s warranty on such Equipment, such longer warranty shall be passed through to Buyer and Seller will make reasonable efforts to assist Buyer in enforcing such longer warranty. In the event any Work provided by Seller shall fail to conform to the above warranty during the Warranty Period, upon Buyer notice to Seller of the breach of warranty, the Seller shall, at its sole cost and expense, promptly repair or replace the goods or services that have failed to meet the warranty. Work repaired or replaced and services re-performed under this warranty shall be re-warranted for twelve (12) months from the date of such repair, replacement or re-performance. Should Seller fail to promptly correct any such breach of warranty as required, the Buyer shall be entitled, but not obligated in any manner, to make such changes, repairs or replacements as necessary in the judgment of Buyer to correct the breach of warranty and shall be entitled to recover the full cost of such efforts from the Seller and other damages incurred by Buyer and/or Customer. Such costs and damages shall include the costs of required disassembly, transportation, reassembly, rework and repair or replacement of such defective Work. Also included is damage caused to any other portion of the Work or the work of other contractors damaged by the defective Work being repaired or replaced, and the costs of testing (excluding fuel, normal operating personnel and equipment) reasonably required to verify that the repaired or replaced Work conforms to applicable warranties and requirements of this Purchase Order.
17. Work on Buyer’s Premises or its Customer’s Premises:
If Seller’s Work under this Purchase Order involves operations by Seller on the premises of Buyer or of its Customer, Seller shall take all necessary precautions to prevent the occurrence of any injury to persons or property during the progress of such Work and, except to the extent that such injury or damage is due solely and directly to Buyer’s or its Customer’s negligence, as the case may be, shall defend and indemnify Buyer against any claim which may result in any way from any act or omission of the Seller, its agents, employees, or subcontractors.
Seller shall maintain Comprehensive General Liability Coverage, including Contractual Liability Coverage insuring the liabilities assumed above and Automobile Liability and Employer’s Liability insurance with limits as reasonably required by Buyer, as well as appropriate Workers’ Compensation insurance as will protect Seller from all claims under any applicable Workers’ Compensation and Occupational Disease Act. Seller shall furnish to Buyer a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect and will not be canceled or materially changed until thirty (30) days after prior written notice has been delivered to the Buyer.
Assignment by Seller of this Purchase Order or any interest therein or any payment due or to become due hereunder without prior written consent of Buyer shall be void.
20. Payment Terms:
Payment shall be made as stated in the Purchase Order.
All prices are exclusive of any present or future federal, state, municipal tax with respect to the Material, Equipment and
FSIS, LLC General Terms and Conditions Document Number: FSIS, LLC 20210901
Services covered hereby, or any other present or future Excise tax upon or measured by the gross receipts from this transaction or any allocated portion thereof or by the gross value of the Material or Equipment or Services covered hereby.
22. Title and Lien Waiver:
Title to and right to possession of the Equipment shall transfer to Buyer upon the earlier of the date when materials are identified to the Purchase Order or delivery. Seller warrants full and unrestricted title to Buyer and Customer for all Equipment and Services furnished by Seller under the Purchase Order, free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances. SELLER HEREBY WAIVES FOR ITSELF, ITS SUCCESSORS, ASSIGNS, SUBCONTRACTORS, OR ANYONE FURNISHING EQUIPMENT OR PERFORMING SERVICES FOR SELLER IN CONNECTION WITH THE PURCHASE ORDER, ANY AND ALL CLAIM OR RIGHT OF LIEN WHICH IT MAY USE AS A RESULT OF THE PERFORMANCE OF THE PURCHASE ORDER, AGAINST THE PROPERTY OF BUYER OR AGAINST THE PROPERTY OF THE CUSTOMER. If requested by Buyer, Seller will provide Buyer with written waivers of lien prior to its receiving payment on any invoice or at any other time requested by Buyer. Should any lien or other encumbrance be filed by Seller, its successors, assigns, subcontractors or anyone furnishing equipment or performing services for Seller, Seller agrees to immediately remove and discharge such lien or encumbrance upon demand by Buyer, which obligation shall include, if necessary, Seller providing substitute security for the benefit of the claimant in order to remove and discharge such lien or encumbrance.
23. Arbitration, Jurisdiction, Venue and Governing Law:
In the event a dispute arises out of this Purchase Order, or breach thereof occurs, and if said dispute cannot be settled through negotiation, the Parties agree to settle the dispute by Arbitration in the City and State listed as the address of the Buyer on the Purchase Order in accordance with the Commercial Rules of the American Arbitration Association. The award rendered by the Arbitrators will be final, judgment may be entered upon it in any court having jurisdiction thereof, and it will not be subject to modification or appeal. The entering into, construction, interpretation, performance, and discharge of the terms and conditions set forth under this Purchase Order shall be governed in accordance with the Laws of the State listed as the address of the Buyer on the Purchase Order
The invalidity of any provision or obligation hereunder or the contravention thereby of any prevailing law, rule, or regulation shall not relieve Buyer or Seller from its obligations hereunder, nor deprive Buyer or Seller of the advantages of any other provisions of this Purchase Order.
25. Entire Agreement:
The terms and conditions contained in these terms and conditions, together with the Purchase Order, any Special Terms and Conditions, specifications, drawings and documents referred to therein, constitute the entire agreement between the parties. The terms hereof may not be modified or amended, except in writing, signed by the authorized representative of both Buyer and Seller. Trade custom and/or usage are superseded by the Purchase Order and shall not be used to modify or amend the terms of the Purchase Order.