KAY AND SONS, LLC
1. If the materials and equipment (“Goods”) purchased are forwarded FOB shipping point, Seller shall ship the Goods utilizing the least expensive method or as instructed by Purchaser. Goods delivered which do not comply with the materials covered by the Purchase Order or which exceed the quantity ordered will be returned at Seller’s expense.
2. Prices stated in the Purchase Order are firm, not subject to escalation, and include all federal, state and local taxes unless otherwise stated in the Purchase Order. Seller accepts the sole risk that such costs are subject to change and are not predictable, and the sole risk resulting from the lack of availability or shortages of materials.
3. Seller warrants that the use or sale by the Purchaser of the Goods and the use of such Goods by the Owner of the Project will not constitute an infringement of any patent or patent application, and Seller agrees to indemnify, defend and hold Purchase and the Owner of the Project harmless from and against any and all patent infringement claims resulting from such use and/or sale.
4. Time is of the essence in the performance of Seller’s obligations under this Purchase Order. Seller shall deliver the Goods on the date(s) specified by this Purchase Order or, if no date is specified, in accordance with the schedule established by Purchaser. Should Purchaser delay Seller’s delivery of the Goods or the production thereof, Seller’s sole and exclusive remedy against Purchaser shall be an extension of time for completion equal to the delay caused, and then only if written claim for delay shall be delivered to Purchaser within forty-eight (48) hours from the commencement of such delay. Seller hereby waives and releases Purchaser from any and all claims and causes of action against Purchaser for damages, costs or expenses arising out of delays, hindrances or interruptions caused by Purchaser, except for a claim for an extension of time.
5. All shipments shall be subject to final inspection by Purchaser after receipt by Purchaser at destination. Purchaser reserves the right to reject and refuse acceptance of Goods which are not in accordance with the terms of this Purchase Order. Payment shall not be deemed an acceptance of any Goods. Purchaser shall have the right to reject any Goods supplied under this Purchaser Order at any time, even after acceptance, if it is subsequently determined that the Goods are defective, do not comply with terms of this Purchase Order, or are rejected by the Owner or Architect/Engineer/Designer/Consultant for the Project. As a result of the Sellers non-conformance with the terms, conditions and specifications of this Purchase Order the Purchaser has have the right to assess direct, consequential, incidental, loss of time, revenue, profit and / or liquidated damages due the Sellers to non-conforming delivery.
6. Purchaser shall have the right, at any time, by written notice to Seller, without cause of default by Seller, to cancel this Purchase Order, in whole or in part. In such event, Purchaser shall be responsible only for the cost of Seller’s finished Goods or Goods in progress which cannot be otherwise utilized or sold, and Purchaser shall not be responsible for any lost profits or overhead costs on any of the Goods not supplied.
7. All Goods furnished under this Purchase Order shall be new and of first quality, unless otherwise specified in the Purchase Order, and Seller warrants all such Goods to be sound and merchantable, and to be fit and suitable for the particular purpose for which they are purchased. Seller guarantees and warrants that all of the Goods furnished under this Purchase Order shall be in strict accordance with the Contract Documents for the Project on which the Goods will be utilized, and for that period of time as called for by such Contract Documents after acceptance of the Goods by the Owner or, if no time is specified, for a period of one (1) year after the date of the substantial completion of the Project, and such warranty shall include a warranty that the Goods shall be free from defects in workmanship and materials, and shall develop ratings, capacities and characteristics specified. Seller will test and, if necessary, shall remove, replace and/or repair at its own expense and at the convenience of the Purchaser and the Owner of the Project, any such non-conforming or defective Goods.
8. The terms and provisions of this Purchase Order shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. Exclusive jurisdiction and venue for any action pertaining to this Purchase Order shall be in the state or federal courts, whichever is applicable, in ________County, Pennsylvania. In the event that exclusive jurisdiction cannot be in the county referenced above then the exclusive jurisdiction and venue shall be in the county in which the Project is located. Seller represents to Purchaser that Seller shall comply with all applicable federal, state or local laws, codes and regulations pertaining to the Goods supplied by Seller under the terms of this Purchase Order.
9. At Purchaser’s sole option and discretion, all claims or disputes arising out of or relating to this Purchase Order or the breach thereof may be decided by binding arbitration in accordance with Construction Industry Arbitration Rules of the American Arbitration Association, with the arbitration to occur in Philadelphia, Pennsylvania. . Seller consents to consolidation of any arbitration hereunder with arbitration proceedings involving Purchaser and any other parties involving a common question of law or fact, even if such consolidation requires the arbitration to take place in another location
10. Should Seller, at any time in the opinion of Purchaser, refuse, neglect or fail to properly perform its obligations under this Purchase Order, or fail to properly and timely supply the Goods for any reason, or fail in any respect to perform its obligations with dispatch and diligence, or become insolvent, or should any bankruptcy or receivership petition be filed by or against Seller, Purchaser, in addition to all other remedies available to Purchaser under applicable law, after three (3) calendar days written notice to Seller of such failure, refusal, neglect or event, may stop all payments to the Seller, may make the necessary arrangements to perform or have other vendors perform the work or supply the Goods required to be supplied by Seller under this Purchase Order, and deduct the cost thereof from any amounts due or thereafter becoming due to Seller under this Purchase Order, and/or Purchaser may also terminate Seller’s right to proceed under this Purchase Order, and may also pursue any and all other remedies available to it at law or in equity, and shall be entitled to recover any costs, expenses or damages incurred by Purchaser as a result of such failure, refusal, neglect or event. To the maximum extent permitted by law, Seller along with its suppliers hereby waives its rights to file any Mechanics Liens against said project without providing Purchaser with a seven (7) business day notice of its intention to file said Lien.
11. Payments by Purchaser to Seller under this Purchase Order are expressly contingent upon and subject to the Owner’s acceptance of the Goods provided by the Seller, and Purchaser’s receipt of payment from the party with whom the Purchaser has contracted to supply the Goods provided under this Purchase Order. The aforementioned conditions are express conditions precedent to payment. Seller accepts the risk of non-payment if Purchaser is not paid for the Goods by the party to which Purchaser is providing the Goods. All amounts payable hereunder or by reason of any breach hereof to Seller by Purchaser, or by Seller to Purchaser, shall be payable at Purchaser’s office in Norristown, Pennsylvania.
12. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER EXPRESSLY AGREES TO INDEMNIFY, DEFEND (WITH COUNSEL ACCEPTABLE TO PURCHASER), AND HOLD HARMLESS PURCHASER, THE OWNER OF THE PROJECT, ANY PERSON OR ENTITY WITH WHOM THE PURCHASER HAS CONTRACTED TO SUPPLY THE GOODS SUPPLIED BY SELLER UNDER THIS PURCHASE ORDER, AND ANY OTHER PARTIES WHICH PURCHASER HAS AGREED TO INDEMNIFY IN THE CONTRACT DOCUMENTS PERTAINING TO THE PROJECT, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS THE “INDEMNITEES”) FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, LOSSES, CAUSES OF ACTION, DAMAGES, LIABILITIES, FINES, PENALTIES AND EXPENSES OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, ALL EXPENSES OF LITIGATION AND ARBITRATION, COURT COSTS AND ATTORNEYS’ FEES, ARISING ON ACCOUNT OF OR IN CONNECTION WITH INJURIES TO OR THE DEATH OF ANY PERSON, OR ANY AND ALL DAMAGES TO PROPERTY, INCLUDING LOSS OF USE, REGARDLESS OF POSSESSION OR OWNERSHIP AND REGARDLESS OF WHETHER CAUSED IN PART BY REASON OF THE ACTS, OMISSIONS OR NEGLIGENCE OF AN INDEMNITEE WHICH ARISE FROM THE GOODS SUPPLIED UNDER THIS PURCHASE ORDER, ANY ACTS, ERRORS OR OMISSIONS OF THE SELLER, ANY PRODUCTS LIABILITY CLAIMS, OR ANY FAILURE OF THE SELLER TO FULFILL ANY OF ITS OBLIGATIONS UNDER THIS PURCHASE ORDER. THE FOREGOING DEFENSE AND INDEMNITY PROVISIONS DO NOT COVER INJURIES, DEATH OR PROPERTY DAMAGE CAUSED BY THE SOLE NEGLIGENCE OF ANY INDEMNITEE. THE DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER THIS PURCHASE ORDER SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR THE SELLER UNDER WORKMEN’S COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER EMPLOYEE BENEFIT ACTS, AND SHALL EXTEND TO AND INCLUDE ANY ACTIONS BROUGHT BY OR IN THE NAME OF ANY EMPLOYEE OF THE SELLER OR ANY THIRD PARTY TO WHOM SELLER MAY SUBLET A PART OF THE WORK. SELLER SHALL FURTHER INDEMNITY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS ASSERTED BY ANY PARTIES CLAIMING TO BE DUE OR OWING ANY SUMS OF MONEY FOR LABOR PERFORMED, SERVICES RENDERED, OR GOODS SUPPLIED IN CONNECTION WITH THE PERFORMANCE OF THE SELLER’S OBLIGATIONS UNDER THIS PURCHASE ORDER.
13. No modification of this Purchase Order shall be effective unless agreed to, in writing, signed by authorized representative of the Purchaser. This Purchase Order along with all attachments and references contains the entire agreement of the parties, and all prior representations, proposals, quotations or agreements, whether written or verbal, are superseded hereby. Any reference to Seller’s proposal or quotation does not imply acceptance of any term or condition contained in such proposal or quotation. Any additional or different terms and conditions proposed by Seller which are not specifically set forth in this Purchase Order are being rejected. Notice is hereby given of Purchaser’s objection to all terms and conditions to and different from the terms and conditions of this Purchase Order contained in any written acceptance or order confirmation which may be issued by Seller.
14. Due to Sellers non-performance Purchaser will not be responsible for any liquidated, consequential, incidental, indirect, special, punitive, exemplary or actual monetary damages of any kind whatsoever assessed by either an Owner or another contracting party except to the extent that Purchaser is the SOLE cause of the project’s critical path delay and the circumstances of the delay is not otherwise excusable per the Purchasers contract documents.
15. Supplier’s Bill of Sale referencing Kay & Sons, LLC generated Purchase Order number shall be deemed to constitute the receipt and acceptance of Kay & Sons, LLC Terms and Conditions.