1. ACCEPTANCE AND TERMS AND CONDITIONS:
Contractor accepts this Order by signing the acceptance copy of the Order and returning it to Purchaser promptly. Even without such written acknowledgment, Contractor’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Contractor agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute Purchaser's offer to Contractor, which Purchaser may revoke at any time prior to Contractor’s acceptance. This Order is not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on Purchaser, whether or not they would materially alter this Order, and Purchaser hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Purchaser and Contractor.
2. DEFAULT:
(a) Time is of the essence of this Order. Purchaser may by written notice of default to Contractor terminate all or any part of this Order if Contractor fails to perform, or so fails to make progress so as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure; and procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Contractor will continue performance of this Order to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the installation schedule and/or waive other deficiencies in Contractor's performance, in which case an equitable reduction in the Installation price will be negotiated. If Contractor for any reason anticipates difficulty in complying with the required installation date, or in meeting any of the other requirements of this Order, Contractor will promptly notify Purchaser in writing. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
3. NON-CONFORMING SERVICES; LATE INSTALLATION; REPLACEMENT PERSONNEL:
(a) Purchaser reserves the right to cancel services and to cancel all or any part of the PO if services provided by Contractor to Purchaser do not, conform to any applicable industry standards or practices, provided scope of work, or, descriptions or any other similar criteria in the order or otherwise provided to Contractor by Purchaser (the "Specifications") or any terms and conditions set forth in the order and herein. Acceptance of the services shall not bind Purchaser to accept any non-conforming services simultaneously provided by Contractor, nor deprive Purchaser of the right to reject any previous or future non-conforming services.
(b) The delivery of services shall strictly comply with the delivery date or delivery schedule, if any, provided to Contractor by Purchaser. If at any time it appears Contractor will not meet such delivery date or schedule, Contractor shall promptly notify Purchaser in writing of reasons for, and the estimated duration of, the delay.
(c) With respect to any personnel assigned by Contractor to services to Purchaser, Purchaser reserves the right to request for any lawful reason whatsoever the removal or reassignment of any such personnel, which right shall not relieve Contractor of any responsibility it has for the order. Contractor shall as soon as possible thereafter provide replacement personnel satisfactory to Purchaser. Contractor shall not, however, leave any position(s) without staffing acceptable to Purchaser during any replacement assessment period(s).
(d) Notwithstanding the foregoing, Purchaser may cancel the order and seek any other remedies available in accordance with applicable law, including cover and incidental and consequential damages from Contractor if Contractor does not, or services provided by Contractor to Purchaser do not, conform to the order and these terms and conditions, including delivery of services that do not strictly comply with the Specifications or the delivery date or schedule, if any, provided to Contractor by Purchaser.
4. PRICE:
This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, services ordered under this Order will not be billed at a higher price than last quoted/ accepted without Purchaser's specific written authorization. Purchaser will be entitled at all times to set off any amount owed at any time by Contractor or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by the Order will be borne by Contractor except as otherwise specified by the parties in writing.
5. INVOICES, PAYMENT, AND TAXES:
(a) Invoices shall be rendered on completion of services and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.
6. INSPECTION:
All services will be subject to inspection and test by Purchaser at all times and places, including the period of installation and in any event prior to final acceptance. Final acceptance or rejection of the services will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject services or failure to detect defects by inspection, will neither relieve Contractor from responsibility for such services as are not in accordance with this Order nor impose liabilities on Purchaser for them. Purchaser's payment for the services shall not constitute its acceptance of the services. Contractor will provide and maintain an inspection and process control system acceptable to Purchaser covering the services ordered. Records of all inspection work by Contractor will be kept complete and available to Purchaser during the performance of this Order and for seven (7) years after Contractor's completion of this Order.
7. WARRANTIES:
Contractor represents and warrants that (a) all services are free of any claim of any nature by any third person and that Contractor will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all services sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the services are provided in strict accordance with the specifications, samples, drawings, scope of work, designs or other requirements (including performance specifications) approved or adopted by Purchaser, (d) the prices for the services sold to Purchaser under this Order are not less favorable than those currently extended to any other customer for the same or similar services in equal or lesser quantities, and (e) Contractor shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the services. Purchaser's inspection, test, acceptance, or use of the services shall not affect Contractor's obligations under these warranties. Contractor shall replace or correct, at Purchaser's option and at Contractor's cost, defects of any services not conforming to these warranties. If Contractor fails to correct defects in or replace nonconforming services within ten (10) days from the date the Purchaser notifies Contractor of the non-conforming services, Purchaser may, on ten (10) days prior written notice to Contractor, either (i) make such corrections or replace such services and charge Contractor for all costs incurred by Purchaser, or (ii) revoke its acceptance of the services in which event Contractor shall be obligated to refund the purchase price and make all necessary arrangements, at Contractor's cost, for the return of the goods to Contractor. All warranties of Contractor herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Contractor to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Purchaser's written consent.
8. INDEMNIFICATION:
Contractor shall indemnify and hold Purchaser and its affiliates harmless and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Contractor, any breach by Contractor of any of its obligations hereunder, or any other act, omission or negligence of Contractor or any of Contractor's employees, workers, servants, agents, subcontractors, or suppliers. Contractor shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Contractor will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. LIMITATION OF LIABILITY:
PURCHASER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. PURCHASER'S PROPERTY:
Tangible or intangible property of any nature furnished to Contractor by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Contractor solely to render services or provide goods to Purchaser. Contractor will not substitute any property or take any action inconsistent with Purchaser's ownership of such property. While in Contractor's custody or control such property will be held at Contractor's risk, will be kept insured by Contractor at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser's written request, in which event Contractor will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Contractor, reasonable wear and tear excepted, all at Contractor's expense.
11. CHANGES:
At all times Purchaser will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and installation schedules. Nothing in this Section, including any disagreement with Purchaser as to any claimed adjustment, will excuse Contractor from proceeding with this Order as changed. Any claim by the Contractor for adjustment under this Section 11 must be in a detailed writing and delivered to Purchaser within five (5) days after the date Contractor receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technical information or guidance provided to Contractor by representatives of Purchaser, will not be construed as a change within the meaning of this Section. If Contractor considers that the conduct of any of Purchaser's employees has constituted a change under this Order, Contractor will immediately notify Purchaser's Central Procurement Office, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.
12. COMPLIANCE WITH LAWS:
Contractor represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Contractor shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Contractor shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
13. CONFIDENTIAL OR PROPRIETARY INFORMATION:
Notwithstanding any document marking to the contrary, any knowledge or information that the Contractor has disclosed or may later disclose to Purchaser, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and will be acquired by Purchaser, free from any restrictions. Contractor will not transmit to Purchaser any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Contractor will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Purchaser in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser's prior written consent. Except as required for the efficient performance of this Order, Contractor will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Contractor will promptly return to Purchaser all materials incorporating any such information and any copies, except for one record copy. Contractor agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Contractor without the prior written agreement of Purchaser.
14. WORK ON PURCHASER'S CLIENT’S PREMISES: If Contractor's work under this Order requires Contractor to be on the premises of Purchaser’s Clients or at Purchaser’s direction, Contractor will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.
15. INSURANCE: In the cases of services provided by the Contractor, Contractor will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers' Liability insurance with limits as reasonably required by Purchaser, as well as appropriate Workers' Compensation insurance as will protect Contractor from all claims under any applicable workers' compensation and occupational disease acts. At Purchaser's request, Contractor will furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Purchaser as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Purchaser.
16. TERMINATION: Purchaser may terminate all or any part of this Order for convenience at any time by written notice to Contractor. Upon such termination and subject to the provisions of Article 9, Purchaser's liability will be limited to reasonable termination charges mutually agreed by Contractor and Purchaser.
17. MISCELLANEOUS:
(a) NON-ASSIGNMENT: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Contractor, whether by transfer of stock or assets, merger, consolidation, or otherwise.
(b) ANTICIPATION OF INSTALLATION SCHEDULE: Unless otherwise agreed in writing, Contractor will not make installation commitments that interferes with the time necessary to meet Purchaser's installation schedule.
(c) Contractor'S INVENTORY: Purchaser will have no obligation to request quotations or place Orders with Contractor, both of which will be in Purchaser's sole discretion. Purchaser acting in its sole discretion will determine the actual quantity services to be purchased. The quantity of services, if any, specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Contractor bears sole responsibility for managing Contractor's raw material, work in process, and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of this Order or otherwise) other than in connection with termination as provided in Section 16.
(d) FORCE MAJEURE: Purchaser may delay delivery and/or acceptance occasioned by causes beyond its control.
(e) PURCHASER’S REMEDIES: Each of the rights and remedies reserved to Purchaser in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.
(f) PUBLICITY: Contractor will not use Purchaser's name or logo in publicity, advertising, or similar activity, except with Purchaser's prior written consent. Contractor will not disclose the existence of this Order or any of its respective terms to any third party without Purchaser's prior written consent.
(g) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price.
(h) GOVERNING LAW: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of the Commonwealth of Pennsylvania in the United States of America without regard to its conflict of law principles.
(i) DISPUTE RESOLUTION: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. The parties agree that any dispute not so resolved through negotiations will be mediated by a mediator. Selection of the mediator will be by mutual agreement of the parties. The amount and responsibility for payment of mediator costs will be one of the issues decided by the mediator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. During any such mediation, the parties will continue diligent performance of this Agreement. The mediator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. If mediation is not successful, both parties agree to litigate any and all disputes in the courts located in Chester County, Pennsylvania.
(j) SURVIVAL: Contractor’s obligations will survive any termination of this Order.
(k) WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
(l) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to the Vested Energy, LLC, PO Box 756, Southeastern PA 19399, and to Contractor at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party.
(m) SEVERABILITY: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
(n) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order.
(o) ENTIRE AGREEMENT: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
Order sets forth Purchaser’s terms and conditions. Unless a client receives an alternative signed agreement, the order will be binding and prevail as of the date of the order.
Contractor accepts this Order by signing the acceptance copy of the Order and returning it to Purchaser promptly. Even without such written acknowledgment, Contractor’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Contractor agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute Purchaser's offer to Contractor, which Purchaser may revoke at any time prior to Contractor’s acceptance. This Order is not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on Purchaser, whether or not they would materially alter this Order, and Purchaser hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Purchaser and Contractor.
2. DEFAULT:
(a) Time is of the essence of this Order. Purchaser may by written notice of default to Contractor terminate all or any part of this Order if Contractor fails to perform, or so fails to make progress so as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure; and procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Contractor will continue performance of this Order to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the installation schedule and/or waive other deficiencies in Contractor's performance, in which case an equitable reduction in the Installation price will be negotiated. If Contractor for any reason anticipates difficulty in complying with the required installation date, or in meeting any of the other requirements of this Order, Contractor will promptly notify Purchaser in writing. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
3. NON-CONFORMING SERVICES; LATE INSTALLATION; REPLACEMENT PERSONNEL:
(a) Purchaser reserves the right to cancel services and to cancel all or any part of the PO if services provided by Contractor to Purchaser do not, conform to any applicable industry standards or practices, provided scope of work, or, descriptions or any other similar criteria in the order or otherwise provided to Contractor by Purchaser (the "Specifications") or any terms and conditions set forth in the order and herein. Acceptance of the services shall not bind Purchaser to accept any non-conforming services simultaneously provided by Contractor, nor deprive Purchaser of the right to reject any previous or future non-conforming services.
(b) The delivery of services shall strictly comply with the delivery date or delivery schedule, if any, provided to Contractor by Purchaser. If at any time it appears Contractor will not meet such delivery date or schedule, Contractor shall promptly notify Purchaser in writing of reasons for, and the estimated duration of, the delay.
(c) With respect to any personnel assigned by Contractor to services to Purchaser, Purchaser reserves the right to request for any lawful reason whatsoever the removal or reassignment of any such personnel, which right shall not relieve Contractor of any responsibility it has for the order. Contractor shall as soon as possible thereafter provide replacement personnel satisfactory to Purchaser. Contractor shall not, however, leave any position(s) without staffing acceptable to Purchaser during any replacement assessment period(s).
(d) Notwithstanding the foregoing, Purchaser may cancel the order and seek any other remedies available in accordance with applicable law, including cover and incidental and consequential damages from Contractor if Contractor does not, or services provided by Contractor to Purchaser do not, conform to the order and these terms and conditions, including delivery of services that do not strictly comply with the Specifications or the delivery date or schedule, if any, provided to Contractor by Purchaser.
4. PRICE:
This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, services ordered under this Order will not be billed at a higher price than last quoted/ accepted without Purchaser's specific written authorization. Purchaser will be entitled at all times to set off any amount owed at any time by Contractor or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by the Order will be borne by Contractor except as otherwise specified by the parties in writing.
5. INVOICES, PAYMENT, AND TAXES:
(a) Invoices shall be rendered on completion of services and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.
6. INSPECTION:
All services will be subject to inspection and test by Purchaser at all times and places, including the period of installation and in any event prior to final acceptance. Final acceptance or rejection of the services will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject services or failure to detect defects by inspection, will neither relieve Contractor from responsibility for such services as are not in accordance with this Order nor impose liabilities on Purchaser for them. Purchaser's payment for the services shall not constitute its acceptance of the services. Contractor will provide and maintain an inspection and process control system acceptable to Purchaser covering the services ordered. Records of all inspection work by Contractor will be kept complete and available to Purchaser during the performance of this Order and for seven (7) years after Contractor's completion of this Order.
7. WARRANTIES:
Contractor represents and warrants that (a) all services are free of any claim of any nature by any third person and that Contractor will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all services sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the services are provided in strict accordance with the specifications, samples, drawings, scope of work, designs or other requirements (including performance specifications) approved or adopted by Purchaser, (d) the prices for the services sold to Purchaser under this Order are not less favorable than those currently extended to any other customer for the same or similar services in equal or lesser quantities, and (e) Contractor shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the services. Purchaser's inspection, test, acceptance, or use of the services shall not affect Contractor's obligations under these warranties. Contractor shall replace or correct, at Purchaser's option and at Contractor's cost, defects of any services not conforming to these warranties. If Contractor fails to correct defects in or replace nonconforming services within ten (10) days from the date the Purchaser notifies Contractor of the non-conforming services, Purchaser may, on ten (10) days prior written notice to Contractor, either (i) make such corrections or replace such services and charge Contractor for all costs incurred by Purchaser, or (ii) revoke its acceptance of the services in which event Contractor shall be obligated to refund the purchase price and make all necessary arrangements, at Contractor's cost, for the return of the goods to Contractor. All warranties of Contractor herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Contractor to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Purchaser's written consent.
8. INDEMNIFICATION:
Contractor shall indemnify and hold Purchaser and its affiliates harmless and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Contractor, any breach by Contractor of any of its obligations hereunder, or any other act, omission or negligence of Contractor or any of Contractor's employees, workers, servants, agents, subcontractors, or suppliers. Contractor shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Contractor will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. LIMITATION OF LIABILITY:
PURCHASER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. PURCHASER'S PROPERTY:
Tangible or intangible property of any nature furnished to Contractor by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Contractor solely to render services or provide goods to Purchaser. Contractor will not substitute any property or take any action inconsistent with Purchaser's ownership of such property. While in Contractor's custody or control such property will be held at Contractor's risk, will be kept insured by Contractor at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser's written request, in which event Contractor will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Contractor, reasonable wear and tear excepted, all at Contractor's expense.
11. CHANGES:
At all times Purchaser will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and installation schedules. Nothing in this Section, including any disagreement with Purchaser as to any claimed adjustment, will excuse Contractor from proceeding with this Order as changed. Any claim by the Contractor for adjustment under this Section 11 must be in a detailed writing and delivered to Purchaser within five (5) days after the date Contractor receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technical information or guidance provided to Contractor by representatives of Purchaser, will not be construed as a change within the meaning of this Section. If Contractor considers that the conduct of any of Purchaser's employees has constituted a change under this Order, Contractor will immediately notify Purchaser's Central Procurement Office, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.
12. COMPLIANCE WITH LAWS:
Contractor represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Contractor shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Contractor shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
13. CONFIDENTIAL OR PROPRIETARY INFORMATION:
Notwithstanding any document marking to the contrary, any knowledge or information that the Contractor has disclosed or may later disclose to Purchaser, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and will be acquired by Purchaser, free from any restrictions. Contractor will not transmit to Purchaser any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Contractor will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Purchaser in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser's prior written consent. Except as required for the efficient performance of this Order, Contractor will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Contractor will promptly return to Purchaser all materials incorporating any such information and any copies, except for one record copy. Contractor agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Contractor without the prior written agreement of Purchaser.
14. WORK ON PURCHASER'S CLIENT’S PREMISES: If Contractor's work under this Order requires Contractor to be on the premises of Purchaser’s Clients or at Purchaser’s direction, Contractor will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.
15. INSURANCE: In the cases of services provided by the Contractor, Contractor will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers' Liability insurance with limits as reasonably required by Purchaser, as well as appropriate Workers' Compensation insurance as will protect Contractor from all claims under any applicable workers' compensation and occupational disease acts. At Purchaser's request, Contractor will furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Purchaser as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Purchaser.
16. TERMINATION: Purchaser may terminate all or any part of this Order for convenience at any time by written notice to Contractor. Upon such termination and subject to the provisions of Article 9, Purchaser's liability will be limited to reasonable termination charges mutually agreed by Contractor and Purchaser.
17. MISCELLANEOUS:
(a) NON-ASSIGNMENT: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Contractor, whether by transfer of stock or assets, merger, consolidation, or otherwise.
(b) ANTICIPATION OF INSTALLATION SCHEDULE: Unless otherwise agreed in writing, Contractor will not make installation commitments that interferes with the time necessary to meet Purchaser's installation schedule.
(c) Contractor'S INVENTORY: Purchaser will have no obligation to request quotations or place Orders with Contractor, both of which will be in Purchaser's sole discretion. Purchaser acting in its sole discretion will determine the actual quantity services to be purchased. The quantity of services, if any, specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Contractor bears sole responsibility for managing Contractor's raw material, work in process, and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of this Order or otherwise) other than in connection with termination as provided in Section 16.
(d) FORCE MAJEURE: Purchaser may delay delivery and/or acceptance occasioned by causes beyond its control.
(e) PURCHASER’S REMEDIES: Each of the rights and remedies reserved to Purchaser in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.
(f) PUBLICITY: Contractor will not use Purchaser's name or logo in publicity, advertising, or similar activity, except with Purchaser's prior written consent. Contractor will not disclose the existence of this Order or any of its respective terms to any third party without Purchaser's prior written consent.
(g) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price.
(h) GOVERNING LAW: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of the Commonwealth of Pennsylvania in the United States of America without regard to its conflict of law principles.
(i) DISPUTE RESOLUTION: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. The parties agree that any dispute not so resolved through negotiations will be mediated by a mediator. Selection of the mediator will be by mutual agreement of the parties. The amount and responsibility for payment of mediator costs will be one of the issues decided by the mediator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. During any such mediation, the parties will continue diligent performance of this Agreement. The mediator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. If mediation is not successful, both parties agree to litigate any and all disputes in the courts located in Chester County, Pennsylvania.
(j) SURVIVAL: Contractor’s obligations will survive any termination of this Order.
(k) WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
(l) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to the Vested Energy, LLC, PO Box 756, Southeastern PA 19399, and to Contractor at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party.
(m) SEVERABILITY: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
(n) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order.
(o) ENTIRE AGREEMENT: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
Order sets forth Purchaser’s terms and conditions. Unless a client receives an alternative signed agreement, the order will be binding and prevail as of the date of the order.