These Terms and Conditions are applicable to any Purchase Order issued by Purchaser in connection with any specific Job or Project (the “Purchase Order”) which is accepted by either execution by Supplier or the beginning of performance by Supplier. The Purchase Order, together with these Terms and Conditions, shall supersede all other written or oral agreements and shall constitute a valid and binding contract. No additions or alterations made to the Purchase Order by Supplier shall become part of the Purchase Order without the written consent of the Purchaser. Any additional or different terms or conditions stated by the Supplier in accepting or acknowledging the Purchase Order are rejected in advance unless explicitly accepted in writing by Purchaser. PURCHASER’S OFFER IS EXPRESSLY CONDITIONED UPON SUPPLIER’S ACCEPTANCE OF ALL THESE PURCHASE ORDER CONDITIONS.
2. Contract Documents
The Contract Documents forming a part of the Purchase Order on the Job/Project identified on the Purchase Order including all documents specifically referenced in the Purchase Order, together with the general and special conditions, plans, specifications, drawings, addenda, the agreement between the Purchaser and its customer, other data furnished to Supplier. Supplier acknowledges that complete copies of all such Contract Documents have been made available to it and/or acknowledges that all such Contract Documents can be reviewed by Supplier at reasonable times upon request.
3. Compliance with Contract Documents
All material, equipment and other items furnished hereunder shall be in strict compliance with all applicable provisions of the Contract Documents, and Supplier shall be bound thereby in performance of the Purchase Order. Supplier shall comply with and furnish required certificates and qualification data.
Equipment furnished under the Purchase Order must fit within the available space as shown on the Contract Documents. All work, material or equipment furnished under the Purchase Order will be merchantable, new and not reused or refurbished, clean, of good material and workmanship, and free of patent or latent defects and fit and be sufficient for the purposes for which it is ordered by Purchaser.
Supplier shall be paid net thirty (30) days after receipt of payment by Purchaser in accordance with progress payment terms of Contract Documents unless noted otherwise in this Purchase Order.
Except as may be otherwise provided in the Purchase Order, the Purchase Order price includes all applicable federal, state and local taxes applicable to the delivered product at job site.
a. ACCEPTANCE OF THE PURCHASE ORDER, CORRESPONDENCE, SHOP DRAWINGS AND CATALOG CUTS SHALL BE SENT TO:
Ferry Electric Company
250 Curry Hollow Rd
Pittsburgh, PA 15236
b. INVOICES SHALL BE SENT TO:
Ferry Electric Company
250 Curry Hollow Rd
Pittsburgh, PA 15236
c. All packing slips, invoices and correspondence shall be clearly marked with: Job Name, Job Number and Purchase Order Number.
d. FAILURE TO FOLLOW THE INSTRUCTIONS HEREIN COULD DELAY PAYMENT.
7. Delivery, Packaging, Markings and Packing Lists
a. Delivery of each shipment shall be made as set forth in the Contract Documents or as directed by the Purchaser, in strict accordance with any schedule or other conditions set forth in the Purchase Order. Delivery of specified materials at the scheduled time is of the essence of this Purchase Order.
b. If, for any unforeseeable reason at the time of the signing of the Purchase Order, it is later learned by the Supplier that the production lead time, as indicated on the Purchase Order, has increased, Supplier must notify Purchaser in writing in sufficient time that they may update their release of subject material or equipment so as not to impair their ability to meet the construction schedule.
Failure to make timely delivery and/or to comply with the notice requirement may result in unnecessary additional job costs and/or damages for which Supplier shall be liable.
c. Supplier will furnish equipment properly conditioned for Project storage prior to and after installation in accordance with the Contract Documents and shall notify Purchaser in writing of any special servicing required during storage to assure that equipment will be functional at time of start-up and operation.
d. Each shipping package, crate, skid or container shall be plainly addressed as shown in the “Ship To” block of the Purchase Order, marked with the Purchase Order Number and any special markings as required by the Purchase Order, and have two copies of the packing list in a package, crate, skid or container.
e. ALL BILLS OF LADING SHALL BE MARKED, “NOTIFY CONSIGNEE FORTY-EIGHT (48) HOURS PRIOR TO DELIVERY BY TELEPHONE AT [ Warehouse: 412-874-3679 ].”
f. Freight is to be F.O.B. destination, prepaid by Supplier to destination and with full freight allowed unless noted otherwise in the Purchase Order. No shipment is authorized until formally released by an authorized representative of Purchaser.
g. ANY ITEMS WHOSE SIZE OR WEIGHT IS SUCH TO REQUIRE MECHANICAL HANDLING SHALL BE DELIVERED IN OPEN TOP MOTOR FREIGHT.
h. Supplier shall insure and be responsible for the items provided hereunder until such time as they have been delivered and unloaded at their destination and accepted by Purchaser.
i. Delivery shall not be deemed to be complete until the materials or equipment have been actually received and accepted by Purchaser, notwithstanding any agreement on the part of Purchaser to pay freight, express or other transportation charges; and the risk of loss or damage in transit and until delivery is complete shall be upon Supplier. Supplier shall maintain insurance covering all damages to or loss of the materials or equipment incurred during shipment, and such insurance shall be for the benefit of Purchaser and Supplier, as their respective interests may appear.
j. Supplier warrants that it is the sole owner of the material, equipment or other items furnished hereunder; that there are no other interests – security or other claims thereon; and that the material, equipment or other items are free and clear of all claims, interests, liens and encumbrances. Title passes to Purchaser, or if the Contract Documents so provide, the prime contractor or owner upon the earliest of (a) delivery, (b) payment, or (c) the time set forth in the Contract Documents.
k. Supplier shall provide appropriate facilities at all reasonable times for inspection by Purchaser, prime contractor or owner of the work, materials and equipment provided under the Purchase Order, whether at the project site or at any place where such work, materials or equipment may be in preparation, manufacture, storage or installation.
8. On-Site Work
a. If Supplier’s workers will be at the jobsite at any time, Supplier agrees to adhere to the requirements of Purchaser’s safety policy, prime contractors safety policy and owner’s work rules and to provide a Certificate of Insurance meeting our and/or the project required Insurance Limits and with adequate proof of Workers’ Compensation Insurance and naming Ferry Electric Company as an additional insured.
9. Shop Drawings and Catalogs (Submittals)
a. Supplier shall furnish all compliance submittals in accordance with the Contract Documents in quantities required by the Purchaser. Timely and accurate submittals of shop drawings and catalogs are of the essence of the Purchase Order.
b. All drawings, catalog cuts, operating manuals or instruction books shall be clearly marked, showing what is being submitted, including the Project’s Name and Address, the Architect/Engineer’s Name and Address, the Purchaser’s Name, Address and Purchase Order Number, the Manufacturer’s Name and Address, the Equipment Reference Number, Location, and Contract Drawing and Specification References.
c. All deviations are to be clearly referenced by the Supplier on the submittal. All deviations must be approved by the Owner or by the Owner’s representative. Submittals shall include dimensions, shipping and installation weights, performance data and curves, and all other data required to evaluate the manufacturer’s submittal.
d. Submittal drawings are to be properly oriented with all pertinent information fully and accurately noted.
a. It is mutually agreed that the Supplier will provide any and all written warranties and/or guarantees of the materials and equipment under the Purchase Order as required by the Contract Documents. Supplier guarantees that the items furnished hereunder shall develop the rating capacities, functions, and characteristics called for in the Contract Documents. Further, Supplier will immediately upon notice, remove, repair or replace any non-conforming or defective materials or equipment.
b. Should required corrections to non-conforming or defective items not be undertaken within seventy-two (72) hours after written notice to the Supplier, the Purchaser may take remedial action to correct deficiencies, including equipment replacement if necessary, at Supplier’s sole cost and expense.
c. Unless a longer warranty period is stated in the Contract Documents, the warranty period on equipment and materials supplied hereunder shall be for one (1) year after the Owner’s acceptance of the Project.
Supplier shall defend, indemnify and save harmless the Purchaser, Prime Contractor, and Owner and their affiliates, agents, officers and employees from and against any and all claims, loss, damage, injury, liability, costs and expenses of whatsoever kind or nature, including attorneys’ fees, howsoever the same may be caused arising out of or attributable to the materials or equipment under the Purchase Order, except where such loss, damage, injury, or liability is directly caused by the sole negligence of the Purchaser. Supplier’s indemnity obligation hereunder shall not be limited in any manner by the provisions of any workers’ compensation or similar act.
In addition to the foregoing, Supplier shall indemnify Purchase of, from and against any losses, costs, damages or claims, suffered directly by Purchaser or for which Purchaser is liable to others, related to any delay in performance by Supplier under the Purchase Order, including, without limitation, for liquidated, consequential or indirect damages.
12. Patent Indemnification
Supplier shall defend, indemnify and save harmless the Purchaser, Prime Contractor, and Owner, and their affiliates, agents, officers and employees from and against any liability for damages and any loss and expense, including attorneys’ fees, sustained by reason of patent infringement claims with respect to anything furnished hereunder, and Supplier will defend any infringement action brought against the Purchaser and/or Owner.
13. Laws and Regulations
Supplier agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations, including but not limited to those relative to equal employment opportunity, occupational safety and health.
Supplier warrants that the products supplied hereunder comply with the Federal and State Occupational Safety Health Act including, but not limited to, OSHA Standard 1926.59 for a Hazardous Communication Standard Policy. Supplier shall submit to Purchaser all Material Safety Data Sheets (“MSDS”) and Hazardous Substance Survey Forms (“HSSF”) for all materials for which the MSDS and the HSSF are required by OSHA prior to shipping any such materials to Purchaser.
14. Maintenance and Operating Instructions
a. Supplier shall furnish installation, maintenance, and operating instructions, including parts lists, in quantities required by the Purchaser within sixty (60) days from the date of the Purchase Order. Failure to provide these instruction manuals within the sixty (60) day period will allow the Purchaser to retain twenty percent (20%) of the Purchase Order price until receipt of these manuals.
b. Manufacturer’s standard brochures or manuals must be modified to reflect only the model or series of equipment furnished including any field or special modifications.
c. Instructions should include: An Index, the Manufacturer’s Name, Address and Phone Number, the Procedures for Operation, Start-up, Maintenance, Calibration and Trouble Shooting, Complete Parts Lists, in addition to other data required by the Contract Documents.
d. Supplier shall furnish qualified personnel to provide operating and maintenance instructions to Owner’s personnel, without additional cost to the Purchaser, if the Contract Documents applicable to the material or equipment furnished hereunder require the manufacturer to furnish such instructions.
e. Supplier shall furnish shop tests, installation check, supervision for start-up and performance testing as required by the Contract Documents.
f. Applicable spare parts and special tools as required by the Contract Documents are included in the Purchase Order.
15. WITHHOLDING PAYMENT
Purchaser may withhold amounts otherwise due under the Purchase Order, or under any other agreement between the parties, to cover Purchaser’s reasonable estimate of any costs, liquidated damages or liabilities Purchaser has incurred or may incur for which Supplier may be responsible under any other arrangement between the parties, or by law. Notwithstanding any other provision of the Purchase Order, payment to Supplier is expressly conditioned upon receipt by Purchaser or payment from the prime contractor and/or owner for the equipment, materials and/or work provided by Supplier pursuant to the Purchase Order.
16. WAIVER OF LIENS
To the fullest extent permitted by law, Supplier, for itself and anyone else acting or claiming through or under it, agrees to waive and relinquish all right to file a mechanics’ or materialmen’s lien, or notice of intention to file any lien, under either of the following circumstances: (a) to the full extent that Purchaser has provided a labor and material payment bond to Owner; and/or (b) to the full extent that Supplier has been paid for goods and/or materials that are properly provided under this Agreement. To the full extent that the lien waiver set forth in the preceding sentence is applicable, Supplier hereby covenants, promises and agrees that no mechanics’ lien or other lien of any kind whatsoever shall be filed or maintained against the Property where the Project is located, or the estates, rights, titles or interests of Owner in the Property, or any part thereof, or the improvements or appurtenances thereto, by or in the name of Supplier or any sub-subcontractor, materialman or laborer acting or claiming through or under Supplier for work done or materials furnished in connection with the improvements to the Property under the Purchase Order or otherwise. Supplier further agrees that it will indemnify and hold Purchaser harmless from and against any and all loss, cost, expense (including reasonable attorneys’ fees and costs of defense), liability, claim or demand arising from any improperly filed mechanics’ or materialmen’s lien, or any lien of any sort whatsoever, of Supplier or any sub-subcontractor, materialman, supplier or laborer acting or claiming through or under Supplier for work done or materials furnished in connection with the improvements under the Purchase Order. To the extent the goods and/or materials are provided as part of a searchable project, and where the waiver provided herein is not applicable, note that a subcontractor that fails to file a Notice of Furnishing on the Department of General Services’ publicly accessible Internet website as required by the act of August 24, 1963 (P.L. 1175, No. 497), known as the Mechanics’ Lien Law of 1963, as amended, may forfeit the right to file a mechanics’ lien. It is unlawful for a searchable project owner, searchable project owner’s agent, contractor or subcontractor to request, suggest, encourage or require that a subcontractor not file the required notice as required by the Mechanics’ Lien Law of 1963.
In the event of any dispute between the Purchaser and Supplier due to any action or inaction of the Owner or Prime Contractor or involving the Contract Documents, the Supplier shall be bound to any disputes procedure to which the Purchaser may be bound under the Contract Documents and to any decision rendered thereunder, provided the Supplier is given notice that such dispute procedure has been demanded by any party, whether the Supplier elects to participate in such procedure or not. The Supplier shall bear the burden of proving its claims and of refuting claims made against it through the Purchaser by Owner or Prime Contractor and shall bear all costs, expenses and fees in connection therewith.
In the event of any dispute between the Purchaser and Supplier not due to any action or inaction of the Owner or Prime Contractor or otherwise involving those parties, said dispute shall be resolved either through litigation in the Court of Common Pleas of Allegheny County, Pennsylvania, the parties agreeing that venue in said court is most convenient, or by arbitration through the American Arbitration Association, at the discretion of the Purchaser.