Material PO Articles – Terms & Conditions

ARTICLE 1. Material to be Provided: Seller shall furnish the material described in Scope of Work portion of Purchase Order document provided to Seller, at the prices set forth and within the times stated in Purchase Order document.

Electronic submittals and one (1) hard copy of engineered drawings, if required, are due within five (5) days of date of this PO.

This Purchase order is contingent upon architect approved submittals (if required).

Mail invoice to 2800 Hoitt Ave, Knoxville, Tennessee 37917. Invoice must state Purchase Order Number, name of project and must be received by the 25th day of the month to be processed for payment. All goods to be delivered F.O.B. 2800 Hoitt Ave, Knoxville TN, 37917 for receipt by the date indicated. Total net price due thirty (30) days following delivery. All unit prices shall be good for the duration of the Project.

ARTICLE 2. Contract Documents:  Seller agrees that the supply of materials under this Agreement shall conform to all applicable terms, conditions, or requirements of the Prime Contract with the Owner regarding the Project and all plans, specifications, general and supplemental conditions, and other documents referenced therein and/or attached as addenda (collectively referred to herein as the “Contract Documents”) which are incorporated herein by reference.

ARTICLE 3. Inspection:  Goods delivered are subject to inspection, testing and approval by Buyer or its agents before acceptance.  Seller expressly warrants that all goods will conform in all respects to the Contract Documents, and that the goods delivered hereunder will be of good quality, material and workmanship, merchantable and free from defects.  This warranty and other warranties of Seller under this Agreement shall survive any inspection, delivery, acceptance or payment by Buyer of the goods or services.  Failure of Buyer to inspect shall not impair Buyer’s right to reject nonconforming materials.

ARTICLE 4. Nonconforming Goods:  All goods not in full and complete compliance with this Agreement or the Contract Documents shall be deemed nonconforming goods, and Seller shall be liable for any and all damages of whatsoever nature and kind arising from the delivery of such nonconforming goods.

ARTICLE 5. Price:  Prices reflected in this Agreement shall include all taxes and duties of any kind levied by federal, state or municipal authorities which either party is required to pay with regard to production, sale, or use of the specified materials.  Prices also include all charges for packing, loading, unloading and shipping.  Prices are not subject to increase as a result of market changes without an agreement in writing by Buyer.  Buyer has the right to withhold from payments otherwise due to Seller amounts sufficient to satisfy backcharges by Buyer against Seller under this Agreement.

ARTICLE 6. Terms and Acceptance:  This Order becomes a contract on the earlier of (1) when a signed acknowledgment is received by the Buyer, (2) when Seller begins shipment according to schedule of all or any portion of the goods covered by this Agreement, or (3) UNLESS SELLER GIVES WRITTEN NOTICE TO BUYER THAT IT OBJECTS TO THE CONTENTS OF THIS PURCHASE ORDER WITHIN TEN (10) DAYS OF RECEIPT BY SELLER, THEN SELLER IS IN AGREEMENT TO ALL TERMS OF THIS PURCHASE ORDER.  Otherwise, regardless of any purchase order, invoice, credit application or other document delivered by Seller to Buyer, the Seller shall be deemed to have accepted the terms and conditions set forth herein and shall be fully bound thereby.  It is a condition of this Agreement that any provisions printed or otherwise contained in any acknowledgment hereof, inconsistent with or in addition to the terms and conditions herein stated or contained in any alteration to this Agreement, shall have no force or effect and shall not constitute any part of this contract.  This Agreement contains the entire understanding of the parties, and failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder. 

ARTICLE 7. Schedule of Work: Time is of the essence to this Agreement and Seller agrees to perform its work and deliver the specified goods in accordance with the Delivery Dates. All deliveries will be coordinated with Buyer’s on-site Superintendent.  Weekend and after hour deliveries will be made at Buyer’s request at no additional charge.

ARTICLE 8. Changes:  Any change to this Agreement must be in writing and signed by both parties in order to be effective.  Seller shall not make any change in the products to be delivered or the prices quoted herein without written direction of Buyer’s Project Manager (to be designated by Buyer in writing), which written direction is a condition precedent to Seller’s recovery of any compensation beyond the amounts specified herein.

ARTICLE 9. Insurance:  Seller bears all risk of loss of the goods until acceptance by Buyer.  Seller shall insure goods at full replacement cost and shall carry liability insurance covering the Seller’s duties of indemnification under this Agreement.  Seller shall advise Buyer as to any goods under this Agreement which require that information be provided to employees under the OSHA “Right to Know” Hazard Communication Standard.

ARTICLE 10. Assignment:  Any assignment of this Agreement or any right hereunder without the written consent of Buyer is void.  No assignment of this Agreement by Seller will release Seller from liability for any obligations and liabilities under this Agreement unless Buyer’s written consent to such assignment expressly grants such a release.  Nothing in this Agreement nor any provision of the Contract Documents shall impair Buyer’s right at any time to freely assign any or all of its rights under this Agreement to any party.

ARTICLE 11. Warranty:  Seller warrants to Buyer that all materials delivered under this Agreement shall be free from all defects, shall be of the quality specified, shall be fit and appropriate for the purpose intended, and shall conform to any applicable requirements of the Contract Documents.  Seller warrants the goods against all deficiencies and defects in materials and/or workmanship as called for in the Contract Documents.  Seller agrees to satisfy at no cost such warranty obligations which arise within the warranty period established in the Contract Documents.

ARTICLE 12. Termination by Buyer:  If Seller fails to commence and satisfactorily continue correction of any default hereunder within forty-eight (48) hours after demand by Buyer to cure such default, the Buyer may terminate this Agreement for default.  Buyer may upon default, in addition to all other rights and remedies, purchase substitute items or services elsewhere and hold Seller liable for all excess costs incurred.

ARTICLE 13. Termination for Convenience:  Buyer, for its convenience, may by written order terminate or suspend all or any portion of this Agreement.  In the event of such termination or suspension, Seller shall accept return of undamaged materials and seek to obtain credit or substitute buyers for such materials.  Buyer shall only be liable to Seller for the Agreement price for materials received and unreturned.    Buyer shall not be liable to Seller for loss of anticipatory profits or consequential damages.

ARTICLE 14. Indemnification:  To the fullest extent permitted by law, Seller shall indemnify, defend, and hold harmless Buyer and all of its agents and employees from and against all claims, damages, losses and expenses of whatsoever nature and kind, including but not limited to attorneys’ fees, arising out of or resulting from any act or omission of Seller or its agents or employees in the fabrication and/or delivery of the goods described by this Agreement, so long as such loss is not attributable solely to the negligence of a party to be indemnified hereunder.

ARTICLE 15. Arbitration:  All claims, disputes and matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect unless the Parties mutually agree otherwise.  However, if and only if, the Prime Contract between Owner and Contractor/Buyer requires litigation, then litigation shall be the dispute resolution procedure between Seller and Buyer and Seller hereby expressly agrees to be joined in any litigation between Owner and Contractor/Buyer.  If arbitration is the dispute resolution procedure to be utilized pursuant to this Article, this agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act, United States Code, Title 9.  The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.  Unless statutorily prohibited, any arbitration hearing or litigation shall be held in Knoxville, Tennessee.  A demand for arbitration shall be filed in writing with the other party to the Agreement and with the American Arbitration Association.  A demand for arbitration shall be made within a reasonable time after the claim has arisen and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim would be barred by the applicable statute of limitations or statute of repose. As a condition precedent to any arbitration proceeding or litigation, the parties agree to submit to a non-binding mediation proceeding with the mediator chosen by mutual consent and the associated costs shared equally which shall take place in Knoxville, Tennessee.  Seller and Buyer agree that Buyer shall be entitled to recover its legal expenses, including its reasonable attorneys’ fees, paralegal fees and any other expenses incurred as a result of such litigation or arbitration.