2.1The Supplier agrees to supply the Goods to the Owner in strict conformance with the specifications and at the price stated for each item below:
No.
Description
Qty.
Unit
Unit Price
Total
3.Conflicting Terms.
Should any conflict exist between the terms of the above- referenced documents constituting the Purchase Order and this Agreement, the terms of this Agreement shall prevail.
Term.
Time.
Unless otherwise provided, contract time is the period of time, including authorized adjustments, allotted in the Purchase Order for delivery of the Goods (the “Contract Time”).
The Commencement Date of the Agreement is the date established in Exhibit “A”.
The date of Final Delivery shall be the date set forth in Exhibit “A”.
The term “day” as used in the Purchase Order shall mean calendar day unless otherwise specifically defined.
Time limits stated in the Purchase Order are of the essence of the Contract. By executing the Purchase Order, the Supplier confirms that the Contract Time is a reasonable period for delivering the Goods.
The Supplier shall not, except by agreement or instruction of the Owner in writing, effect the delivery of the Goods prior to the delivery of insurance required to be furnished by the Supplier and Owner.
The Supplier shall proceed expeditiously with adequate forces and shall achieve Final Delivery within the Contract Time.
Quality of Goods.
The Supplier agrees that all Goods will conform to the Specifications outlined in the Proposal, in Exhibit “A”, and every drawing, sample or other description provided to the Supplier (the “Order Specifications”); the Supplier also agrees that the Goods will be free of any defect, error or omission in design, material or workmanship. Any Goods prepared and furnished by the Supplier that contain defects, errors or omissions will be promptly corrected by Supplier at no additional cost to Owner. Owner’s approval, acceptance, use of or payment for all or any part of Supplier’s Goods shall in no way alter Supplier’s obligations or Owner’s rights hereunder.
Owner’s Reviews and Approvals.
Notwithstanding anything to the contrary contained in this Agreement, Owner’s review and approval of any and all Goods or other matters required herein shall be for the purpose of providing Supplier with information as to Owner’s objectives and goals with respect to the Project and not for the purpose of determining the accuracy and completeness of such goods, and in no way should any such review and approval alter Supplier’s responsibilities hereunder and with respect to such goods.
Coordination of Services.
Supplier shall be responsible for coordinating all Supplier’s Basic Services required under this Purchase Order.
Delivery of Goods. See Exhibit “A” attached.
Title and Use.
Supplier hereby warrants to Owner that Supplier is the lawful owner of the personal property sold to Owner hereunder (sometimes hereinafter “Goods”) and Supplier has good and unencumbered title to such Goods, with the full right to sell and covey same free of the rights of others. Supplier represents that Goods are made in a good and workmanlike manner and in accordance with any specifications supplied by or agreed to by Owner. Supplier represents that such Goods shall be merchantable and fit for the purposes for which same are intended. Supplier represents that the Good are free from patent infringement claims by any third party. If the Goods are not manufactured by Supplier, Supplier hereby assigns to Owner all rights of Supplier under such manufacturer’s warranties, all of which are enforceable by the Owner.
Risk of Loss, Inspection and Acceptance.
The risk of loss from any casualty to the Goods, regardless of the cause, will be on Supplier up to the time of receipt of the goods by Owner at the place of delivery, but only after any proper inspection has been completed without rejection of the Goods by Owner. Owner will have the right to inspect the Goods at the time and place of delivery to the work site. Within five (5) business days after delivery, Owner must give notice to Supplier of any claim for damages on account of the condition, quality, or grade of the Goods, and Owner must specify in detail the basis of the claim. Owner's failure to comply with these conditions will constitute acceptance of the goods by Owner, except for latent defects, and risk of loss will be on Owner. Upon Owner’s written notification to Supplier of non-conforming Goods (“Notice of Rejection”), Supplier will take possession of the non-conforming Goods, remove them from the site at Supplier’s cost and will ship confirming Goods within five (5) days of the Notice of Rejection, unless Owner earlier notifies the Supplier that it is terminating the Contract for cause and not to ship replacement conforming Goods.
Instruction
Supplier shall provide instruction with respect to the Goods’ installation and use to the Owner as specified in the Proposal, if applicable, which shall be included in the Agreed Sum.
Payment.
Compensation and Payment for Goods and Services. Compensation and Payment for Goods and Services shall be as set forth in Exhibit “B”.
Goods and Services Tax. The Agreed Sum is inclusive of all applicable Goods taxes.
Written Consent for Additional Goods.
Supplier shall not supply any additional Goods unless Owner expressly authorized same in writing. Owner agrees to put any such authorization in writing in a timely manner.
Non-Conforming Goods.
Supplier covenants that it shall correct, at its sole expense, any of the Goods that are found to be not in accordance with the requirements of this Agreement and resulting from faulty materials or workmanship which are discovered by the Owner during the period hereof and within any applicable warranty periods incorporated herein by reference. Upon written notice from Owner, Supplier shall proceed with due diligence, at its expense, to replace any defective material or perform any labor necessary to correct any defect in the Goods.
Review, Tests and Inspections of Goods.
Tests, inspections, and approvals of the Goods, if applicable, shall be made as required by this Agreement and by applicable laws, statutes, ordinances, codes, rules, and regulations or lawful orders of public authorities. Unless otherwise provided, the Supplier shall make arrangements for such tests and inspections with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections, and approvals. The Owner shall bear costs of tests or inspections that do not become requirements until after bids are received or negotiations concluded. The Owner shall directly arrange and pay for tests or inspections where building codes or applicable laws or regulations so require.
If the Owner determines that the Goods require additional testing and/or inspection not included under Section 15.1, the Owner will instruct the Supplier to make arrangements for such additional testing or inspection by an entity acceptable to the Owner, and the Supplier shall give timely notice to the Owner of when and where tests and/or inspections are to be made so that a representative of the Owner may be present for such procedures. Such costs, except as provided in item number 15.3, shall be at the Owner’s expense.
If procedures for testing, inspection, or approval under item numbers 15.1 and 15.2 reveal failure of the Goods to comply with requirements established by this Agreement, all costs made necessary by such failure, including those of repeated procedures, shall be at the Supplier’s expense.
Required certificates of testing and inspection shall, unless otherwise required by the Agreement, be secured by the Supplier and promptly delivered to the Owner.
Tests or inspections conducted pursuant to the Agreement shall be made promptly to avoid unreasonable delay in the delivery of the Goods.
Untimely Performance.
If the production and delivery of the Goods is not progressing in a timely manner because of delays caused by Supplier or any subcontractor or material supplier of the Supplier, Supplier shall, at its own cost and expense, take such action as is required to deliver the Goods within the agreed time period defined in Exhibit “A”, including by working additional shifts, causing its subcontractors to work additional shifts, and taking other measures to deliver within the agreed time period. Nothing contained in this Section (or elsewhere in this Agreement) shall limit Owner’s rights and remedies under this Agreement, at law or in equity by reason of Supplier’s delay.
Notice By Supplier. Supplier shall give Owner prompt written notice of (a) any delay in the production or delivery of the Goods caused by Owner that might give rise to a claim by Supplier against Owner and (b) any events that Supplier claims will justify an extension of the Contract Time, setting forth in reasonable detail the reasons for and the estimated length of such delay. Supplier shall immediately take all measures that may be required to minimize the extent of any delay. Supplier’s sole remedy for any claim based on any delay in the production or delivery of the Goods caused by Owner, hindrance in production or delivery of the Goods caused by Owner, loss of productivity caused by Owner, or other similar claim (collectively referred to as “Delay Claim”), whether or not foreseeable, shall be (i) an extension of the time in which to deliver the Goods and (ii) payment to Supplier of a reasonable sum to compensate it for increased Project expenses actually incurred and directly attributable to the Delay provided for below, but not for any consequential damages, lost opportunity costs, impact damages, or similar damages.
Delay in Completion by Owner. In the event of the delay of the performance of the Supplier caused by the Owner, if the delay exceeds ninety (90) days, the Owner agrees to pay to the Supplier any increase in the actual cost to the Supplier of the Supplier’s labor and materials caused by such delay, upon submission of written proof thereof to the Owner, and subject to the approval thereof, made in good faith, by the Owner.
ShapeDelay in Completion by Supplier. In the event Final Delivery of any one or more parts of the Goods are not completed and cause a delay by the date set forth in Exhibit “A” (subject to such excusable delays as may be set forth in the Agreement), the Contractor agrees to pay a penalty as set forth in Exhibit “D”, until the applicable portion of the Goods are delivered:
See Exhibit “D” Penalty Payments and Delay Damage Provision.
The Supplier acknowledges that the timely delivery of the Supplier’s Goods is crucial to the Owner to commence subsequent development of the Project and that the penalty provisions herein provided are fair and reasonable.
In the event the Supplier’s delay causes the Owner to incur subsequent costs and expenses due to the other contractors’, materialmen’s, or suppliers’ performance being delayed or their schedules being altered, those costs and expenses shall be paid by the Supplier to the Owner within ten (10) days of written demand therefor.
Compliance With Laws.
Supplier shall provide Goods which when installed in accordance with the Order Specifications will comply with all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders or other legal requirements, including, but not limited, to all zoning, restrictions or requirements of record, building, occupancy, environmental, disabled persons accessibility and land use laws, requirements, regulations and ordinances relating to the construction, use and occupancy of the Project (collectively “Governmental Requirements”) existing on the date of this Agreement and which may be enacted prior to Owner’s approval of completed Supplier Goods.