Purchasing Terms and Conditions
5050 Old Montgomery Hwy. P.O. Box 1850 Tuscaloosa, AL 35405
Telephone: 205-345-5335 Fax: 205-345-0009
PROCUREMENT TERMS AND CONDITIONS
- GENERAL.This order is Southern Heat Exchanger Corporation’s (“SHECO”) offer to Contractor/Seller and does not constitute an acceptance by SHECO of any offer to sell, quotation or proposal. This order consists only of the terms contained herein and on the face of this order and any supplements, specifications or other documents expressly incorporated herein by reference and accepted in writing by SHECO. By acknowledging receipt of this order (or by shipping the Goods or performing the Services called for by this order) Contractor/Seller agrees to the terms and conditions of sale contained in this order and these terms and conditions shall be the sole terms and conditions for the order. No changes, substitutions or modifications of this order or the terms hereof will be binding unless agreed upon in writing by both SHECO and Contractor/Seller. The laws of the State of Alabama shall govern and control this purchase order, excluding any law which directs the application of the laws of another jurisdiction, and the parties agree that any litigation relating to this order shall be conducted in Tuscaloosa, AL. For purposes herein, “Goods” shall mean all things (including specially manufactured Goods), items, parts, materials, or any other item which would fall under the definition of Goods under the Uniform Commercial Code. “Services” shall mean any physical labor or work performed by Contractor/Seller, whether skilled or unskilled, including but not limited to Services that are provided by using any type of machine or equipment. For purposes of clarity, anything under this contract that is not considered a Good shall be considered a Service and vice-versa. “Work” shall mean collectively and individually, Goods and Services and any other actions required to be performed under this contract by Contractor/Seller.
- SHIPPING AND DELIVERY.Transportation on all shipments must be prepaid by Contractor/Seller, unless specifically stated otherwise in this order. Shipments shall be by the most appropriate means and route, unless otherwise agreed in writing.
- INVOICING AND PAYMENT.Contractor/Seller must present an original and two (2) copies of all invoices marked accordingly, which must show the delivery information, and cash discount terms. The original Bill of Lading or transportation receipts must be attached to each invoice. Discount period will be computed from the date that full and correct documentation is received by SHECO in proper form and with required supporting documentation.
- ASSIGNMENT.Assignment by Contractor/Seller of this order or any part thereof without the prior written consent of SHECO shall be void.
- GOVERNMENTAL REGULATIONS.Supplier shall comply fully with all laws, provisions, regulations, orders, rules and other requirements of all governmental bodies, agencies, boards and commissions having or claiming to have authority applicable to the materials, equipment, Services and performance of Work covered by this order, and agrees to hold SHECO and SHECO’s customer from any liability or penalty which may be imposed or asserted by reason of Supplier’s failure or alleged failure to observe and abide thereby. Such laws, rules, etc., include, but are not limited to, the Foreign Corrupt Practices Act, any foreign anti-bribery laws, U.S. and foreign export regulations, the provisions of Sections 202 (1) to (7) inclusive of Executive Order 11375, and the Occupational Safety and Health Act of 1970.
- TIME OF DELIVERY.Time of the essence of this order. Seller agrees that it will make delivery of materials under this order within the time set forth herein or on the face of this order or any schedule appended hereto and shall promptly advise SHECO of any events which may affect shipment. In the event Contractor/Seller does not timely perform the Work or perform its obligations herein, SHECO may cancel the order at no cost or penalty to SHECO. SHECO may seek an alternate vendor and charge Contractor/Seller any additional cost for the Work provided by the alternate supplier, including any fees to have the Work expedited and any delivery charges related to the order.
- WARRANTY.Contractor/Seller expressly warrants that all Goods and/or Services to be supplied hereunder shall conform to the specification, drawings, samples or other description upon which this order is based, shall be fit and sufficient for the purposes intended, merchantable, of the best material and workmanship and free from defect and that Goods and Services of Contractor/Seller’s design will be free from defect in design. In addition, Contractor/Seller warrants that any Services provided shall be done in an efficient manner and conducted in a manner to reduce SHECO’s overall costs and shall be conducted using the best engineering practices, judgment, and principles. In addition to rights and remedies available at law or equity, Contractor/Seller agrees to warrant the Goods and/or Services for the longer of one (1) year from startup of the materials or equipment by SHECO or in the case of Services, one (1) year from final delivery of the completed Services, however, if Contractor/Seller’s standard warranty is longer, then its longer warranty shall apply. Notwithstanding anything else contained herein in the event the length of the warranty that was provided by SHECO to its customer under SHECO’s contract with its customer is longer than the warranties provided herein, then such warranty period provided by SHECO shall apply. Inspection, test, acceptance or use of the Goods furnished hereunder shall not relieve Contractor/Seller of its obligations under this warranty, and such warranty shall survive inspection, test, acceptance and use. This warranty shall run to SHECO, its successor, assigns, and customers and the user of its products. Contractor/Seller agrees, at SHECO’s option to either replace or correct defects, including all associated costs including but not limited to the labor, removal, reinstallation, return, delivery, and transportation necessary to repair or correct the defects and all costs of removing ancillary equipment surrounding the Goods, without expense to SHECO, when notified of such nonconformity by SHECO. In the alternative, SHECO may conduct the warranty work itself or by a third party and back charge such costs to Contractor/Seller, plus 20% as an administrative fee.In addition, Contractor/Seller does hereby assign and transfer to SHECO all warranties heretofore or hereafter received by the Contractor/Seller with respect to materials utilized in the Work; provided, however, SHECO and Contractor/Seller agrees that during the warranty period referred to herein, Contractor/Seller shall be obligated to enforce such warranties at no cost or expense to SHECO.
- INDEMNITY AND INSURANCE.Contractor/Seller represents and warrants that it carries the insurance coverage below and agrees to name SHECO as an additional named insured on the insurance policies. Contractor/Seller shall provide to SHECO a certificate of insurance which shows SHECO named as an additional insured prior to gaining access to SHECO’s facility or the job site. Contractor/Seller shall provide SHECO notice of any material change to the policies at least fourteen (14) days prior to such change. The Contractor/Seller agrees to waive and will require their insurers to waive any rights of subrogation or recovery they may have against SHECO. (1) Commercial General Liability Insurance in the minimum amounts of $1,000,000 per occurrence and $2,000,000 annual general aggregate for bodily injury and property damage, including coverage for premises-operations, blanket contractual liability, broad form property damage, personal injury liability, independent Contractor/Sellers, products/completed operations, sudden and accidental pollution. (2) Business Automobile Liability Insurance covering owned, non-owned or hired with minimum bodily injury limits of at least $1,000,000 per occurrence and $2,000,000 annual aggregate. (3) Workers’ Compensation consistent with the statutory requirements of the state where any Work is to be performed. Employers Liability with minimum limits of $1,000,000 per occurrence. (4) Umbrella or Excess Liability insurance providing coverage in excess of the coverage’s to be provided by Contractor/Seller above which the minimum limits for such umbrella liability insurance shall be the greater of $4,000,000 per occurrence or the amount of umbrella coverage actually carried by Contractor/Seller.Contractor/Seller shall, at its sole expense, indemnify, hold harmless and defend SHECO and its affiliates and their respective directors, officers, employees, representatives, insurers, and agents (“Indemnitees”) from and against all claims, demands, cause of action, liability, loss or expense of any kind (including, without limitation, penalties, interest and actual court costs, expert fees, and attorney fees) for personal injury (including death), including but not limited to injury, harm, or death to Contractor/Seller’s employees, property damage, and any other damage, loss or expense (individually and collectively “Claims”) to the extent arising from: (1) Contractor/Seller’s failure to comply with Contractor/Seller’s obligations under the Purchase Order; (2) negligent acts, willful acts, or omissions of employees, subcontractors or agents of Contractor/Seller; (3) any actions that relate directly or indirectly to the Work being conducted by Contractor/Seller; (4) a violation of any statutes, laws, or regulations; or (5) SHECO’s negligence, its acts, or omissions. CONTRACTOR/SELLER UNDERSTANDS THAT IT IS INDEMNIFYING SHECO FOR SHECO’S SOLE AND/OR CONTRIBUTORY NEGLIGENCE.
- PATENTS.Contractor/Seller agrees, at its own expense, to defend any suit or action brought or maintained against SHECO or against those using the Goods or Services covered by this order for alleged infringement of patent or invention rights arising from the sale or use of such Goods or Services and to indemnify and save SHECO harmless from any and all damages, liabilities, claims, losses and expenses (including attorney’s fees) paid or incurred by SHECO in connection with any such suit, or action, whether against SHECO or against those using the Goods or Services covered by this order.
- TERMINATION FOR CONVENIENCE.SHECO may at any time terminate this order in whole or in part for its convenience upon written notice to Contractor/Seller in which event Contractor/Seller shall be entitled to reasonable termination charges consisting of a percentage of the order price reflecting the percentage of the Goods delivered and accepted prior to termination.
- TERMINATION FOR CAUSE.In the event of default by Contractor/Seller in the performance of any obligation hereunder, including, but not limited to, time of delivery and/or completion or in the event it becomes apparent that delivery or completion cannot be accomplished within the time specified, SHECO may, in addition to its other right or remedies, cancel this purchase order without penalty and/or liability, charging Contractor/Seller for losses and damages sustained by reason of such delay or failure. SHECO may seek an alternate vendor and charge Contractor/Seller any additional cost for the Goods provided by the alternate supplier, including any fees to have the order expedited and any delivery charges related to the order.
- TITLE AND RISK OF LOSS.Unless otherwise specified on the face of this order, all risk of loss of or damage to and title to the material or equipment furnished under this order shall pass to SHECO upon delivery thereof DDP (Tuscaloosa, AL). However, title to any Goods that shall remain at Contractor/Seller’s facility that have been paid for by SHECO, shall pass to SHECO and Contractor/Seller shall mark the Goods with SHECO’s name and segregate the Goods from other Goods at Contractor/Seller’s facility, however, risk of loss shall remain with Contractor/Seller until the Goods have been delivered according to the incoterm herein and accepted by SHECO. Notwithstanding the foregoing, Contractor/Seller shall remain solely responsible for any damage resulting from Contractor/Seller’s failure to properly pack and ship the material or equipment.
- TAXES.The price includes any present and future federal, state, local or other taxes, duties, fees, and other charges levied and applicable to this purchase order or the material, equipment or Services covered hereunder. The price also includes the taxes, if any, levied on wages and/or salaries paid to Contractor/Seller’s employees.
- CONSEQUENTIAL DAMAGES.Notwithstanding anything to the contrary, in no event shall SHECO be liable to Contractor/Seller, whether arising under contract, tort (including negligence), strict liability or otherwise, for loss of anticipated profits, loss of capital or revenue, cost of money, interest, or for any punitive, exemplary, special, indirect, incidental or consequential loss or damage arising at any time or from any cause whatsoever. SHECO total liability to Contractor/Seller under the Purchase Order shall be limited to the total value of the Purchase Order.
- TIME AND MATERIAL CONTRACT. In the event that the Purchase Order is a time and materials contract or cost plus contract, in no event shall the total amount charged and invoiced by Contractor/Seller to SHECO for the Work be more than 20% over the estimate in which is referenced in the Purchase Order. Contractor/Seller agrees that any costs above the 20% shall be covered by Contractor/Seller and Contractor/Seller is still required to complete the Work. Once the cost of the Work has reach 80% and 100% of the estimate, Contractor/Seller shall stop Work at a reasonable stopping point that shall not incur any damage or additional cost to SHECO, and request written authorization from SHECO to continue working. If Contractor/Seller fails to provide such aforementioned Work continuation request, SHECO shall not be responsible to pay any additional costs over and above the estimate. Contractor/Seller shall keep complete and accurate accounts and records of all transactions relating to the order in accordance with generally accepted accounting principles, and shall maintain the accounts and records for a period of at least three (3) years after receipt of the final payment made to Contractor/Seller by SHECO under the terms of this order. In addition, Contractor/Seller shall keep detailed logs regarding worked conducted under the purchase order, including but not limited to, materials used and invoices for such materials, names and hours of each employee who worked on the Work. Any invoices issued shall include the aforementioned detailed logs. Wherever Contractor/Seller is entitled to the reimbursement of direct cost under the order, such costs shall be justified, substantiated, and the subject of audit. If any audit reveals errors in amounts invoiced and/or paid, SHECO will notify Contractor/Seller and shall either be entitled to recover from Contractor/Seller any amount paid in excess of that due under the Order or pay Contractor/Seller the amount of any under-payment that may be revealed. In the event Contractor/Seller does not provide such detailed logs or does not keep the detailed logs required, SHECO shall not be responsible for any amounts charged by Contractor/Seller under the purchase order, but only the amount SHECO deems fair and reasonable in its sole and absolute discretion. SHECO shall be entitled to inspection of all the records required to be maintained herein.
- FLOW DOWNS.In the event SHECO agrees with its customer to flow down or make a requirement between SHECO and Contractor/Seller, such terms and conditions which are in SHECO’s contract with its customer, Contractor/Seller agrees to accept those flow downs as part of this agreement.
© Southern Heat Exchanger Corporation (SHECO)
Revision 0.0 (27JUN2017)