PURCHASE AGREEMENT TERMS
The following terms have been derived from the ConsensusDocs 703 Contract "STANDARD PURCHASE AGREEMENT FOR NONCOMMODITY GOODS BY A CONTRACTOR". This is a standard form agreement for the purchase of complex goods that meet specific project requirements (and may require specific on-site labor for installation) and the terms and condition for their sale, delivery, and installation. This purchase order agreement coordinates between the Constructor (aka builder, general contractor, design-builder, construction manager), distributor, and manufacturer. This agreement uses contract best practices and assigns risk and liability where each party has control.
1. GENERAL INFORMATION
BUYER: Edge Construction Specialties Inc
Edge Construction Specialties
5717 West 6th Avenue Frontage Road North
Lakewood, CO 80214
Edge Construction Specialties
5717 West 6th Avenue
Lakewood, CO 80214
SELLER: Specified per Purchase Order
The Buyer and Seller are collectively the “Parties” to this Agreement. Notice shall be given at the Parties’ first listed address indicated above.
1.1. PARTIES’ RELATIONSHIP AND ETHICS The Parties agree to proceed on the basis of mutual trust, good faith, and fair dealings. The Parties shall perform their obligations with integrity and diligence.
2. MATERIALS OR EQUIPMENT
The Purchase Order (PO) will contain the following information:
Purchase Order #: Purchase Order Date:
Project: Delivery/Shipment Address:
Required on the Jobsite Date: Terms:
F.O.B.: Ship Via:
3. PRICE The Buyer shall pay the Seller to provide material or equipment and for any incidental services as identified in the Purchase Order. This Price excludes applicable federal, state, and local taxes, for which the Buyer shall be fully responsible regardless of the estimated amount. Unless otherwise indicated, prices shall not include costs or deposits for shipping and packing materials. The Seller shall send all invoices as a PDF file via electronic mail to firstname.lastname@example.org. If the Seller is submitting multiple invoices, the Seller shall attach one PDF invoice per electronic message.
4. EXHIBITS AND DOCUMENTS All attachments, drawings, specifications, and other information listed above and designated as either “attached” or “referenced and incorporated” are incorporated and made a part of this standard purchase agreement (hereinafter “Agreement”). All materials and equipment furnished shall conform to the drawings, specifications, and other information incorporated herein.
5. ACCEPTANCE OF AGREEMENT Acceptance of this Agreement shall be limited to the terms and conditions stated herein, and any additional or different terms, conditions, or instructions proposed by the Seller are rejected by the Buyer unless expressly assented to in writing by the Buyer. The Seller shall be bound by this Agreement when it executes and delivers the original copy or when it delivers to the Buyer any of the materials or equipment or renders for the Buyer any of the incidental services ordered. The Seller shall send all acknowledgements and supporting communication to email@example.com.
6. EXTENT OF AGREEMENT To the extent incidental services are performed by the Seller under this Agreement, such incidental services shall be governed by the terms of this Agreement. Nothing in this Agreement shall be construed to create a contractual relationship between persons or entities other than the Buyer and Seller. Except as specifically provided in this Agreement, this Agreement, including the documents attached or referenced in Article 4, are exclusively for the benefit of “the Parties” and not for the benefit of any third-party. This Agreement represents the entire and integrated agreement between the Parties, and supersedes all prior negotiations, representations, or agreements, either written or oral.
7. CHANGES The Buyer shall have the right at any time to make changes in specifications, drawings or other information incorporated in this Agreement, methods of shipment or packing, place of delivery, and time of delivery. The Price or Progress Schedule shall be equitably adjusted if and to the extent necessary to reflect the impact of any such changes, and this Agreement shall be modified in writing accordingly.
8. SUBMITTALS The Seller promptly shall submit for approval to the Buyer all shop drawings, samples, product data, manufacturers' literature, and similar submittals required by this Agreement. The Seller shall be responsible to the Buyer for the accuracy and conformity of its submittals to this Agreement. The Seller shall prepare and deliver its submittals to the Buyer at no additional Price and in a manner consistent with the Progress Schedule and in such time and sequence so as not to delay the Buyer or Owner in the performance of the Contract. The approval of any Seller submittal shall not be deemed to authorize deviations, substitutions, or changes in the requirements of this Agreement unless express written approval is obtained from the Buyer and Owner authorizing such deviation, substitution, or change. In the event that the Contract does not contain submittal requirements pertaining to this Agreement, the Seller agrees upon request to submit in a timely fashion and at no additional Price to the Buyer for approval any shop drawings, samples, product data, manufacturers' literature, or similar submittals as may reasonably be required by the Buyer, Owner, or Design Professional. The Buyer and Owner are entitled to rely on the adequacy, accuracy, and completeness of any professional certifications required by this Agreement concerning the performance criteria of systems, equipment, or materials, including all relevant calculations and any governing performance requirements.
9. SCHEDULE Time is of the essence for this Agreement. The Seller shall provide the Buyer with any scheduling information proposed by the Seller. In consultation with the Seller, the Buyer shall prepare a coordinated Progress Schedule, and furnish such to the Seller. The Seller shall furnish and deliver the materials or equipment indicated in Article 2, in strict accordance with such Progress Schedule.
10. FORCE MAJEURE If the Seller is delayed by any cause beyond Seller’s control, Seller shall be entitled to an equitable extension of time. Examples of causes beyond the Seller’s control include, but are not limited to, the following: acts or omissions of the Buyer, Owner, or Design Professional; changes in the required materials and equipment or the Progress Schedule; shipping delays not reasonably foreseeable; labor disputes not involving the Seller; general labor disputes impacting the Project but not specifically related to the Project; fire; terrorism, epidemics, adverse governmental actions, unavoidable accidents or circumstances; adverse weather conditions not reasonably anticipated; encountering Hazardous Materials; concealed or unknown conditions; delay authorized by the Buyer pending dispute resolution; and suspension by the Buyer. The Seller shall submit any requests for equitable extensions of the Progress Schedule in accordance with the provisions of Article 6.
11. SHIPPING Shipping instructions furnished by the Buyer shall be strictly complied with and shall be considered a part of this Agreement. The Seller shall give the Buyer twenty-four (24) hours’ notice prior to the delivery of any materials or equipment. Any provisions for delivery of materials or equipment by installment shall not be construed as making the obligations of the Seller severable. Shipments sent C.O.D. without the Buyer's written consent may be rejected and shall be at the Seller's risk. Risk of loss or damage shall be upon the Seller until the materials or equipment are physically delivered to the Buyer at the Project or other authorized destination, unless otherwise agreed to in writing and signed by the Buyer, or if covered by project all risk or equivalent insurance.
12. MATERIAL SAFETY DATA (MSDS) SHEETS The Seller shall submit to the Buyer all Material Safety Data Sheets required by Law for materials or substances sold to the Buyer.
13. INSPECTION Except as otherwise provided in this Agreement, all shipments shall be subject to final inspection by the Buyer after receipt by the Buyer at destination. Shipments shall be accompanied by detailed delivery tickets to assist the Buyer in its inspection. Should the Buyer discover any damage or shortfalls, the Buyer shall promptly report them to the Seller. The Buyer shall have the right to reject and refuse acceptance of materials or equipment that are not in accordance with specifications or drawings. The Buyer may deduct from any amount owed to the Seller under this Agreement the reasonable cost of re-inspecting materials or equipment rejected. Materials or equipment not accepted due to nonconformance with the requirements of this Agreement shall, at the Buyer’s option be (a) returned to the Seller at the Seller's expense; (b) held by the Buyer for an equitable reduction in Price; or (c) repaired pursuant to section 13.1 at the Seller's expense. The Buyer, Owner, and Owner’s Representative shall have the right to inspect all materials or equipment during any stage of manufacture or production by the Seller or Seller's supplier), to audit quality assurance programs, and to otherwise assure quality control in the production and manufacture of the materials or equipment hereunder by the Seller or Seller's supplier, and the Seller shall provide reasonable access, facilities, and assistance for the safe and convenient inspection or audit at the Seller's plant or its supplier’s plant. Incorporation of the materials or equipment into the Project shall constitute acceptance by the Buyer of such materials or equipment and incidental services, subject to the Seller's warranty obligations. Payment for any materials or equipment shall not constitute acceptance. Acceptance by the Buyer shall not constitute acceptance as to latent or hidden defects not subject to discovery upon reasonable inspection.
13.1. Except in cases of emergencies, if the Buyer chooses the repair of nonconforming materials above in subsection (c), the Buyer must provide the Seller written notice of such nonconformance and request the Seller to repair such nonconformance. Within seven (7) calendar days after receipt of written notification, the Seller must commence and continue satisfactory correction of such nonconformance with diligence and promptness, or the Buyer may undertake such repair.
14. SUSPENSION FOR CONVENIENCE Notwithstanding Article 10, should the Buyer order the Seller in writing to suspend, delay, or interrupt the performance of this Agreement for such period of time as may be determined to be appropriate for the convenience of the Owner and not due to any act or omission of the Buyer or any person or entity for whose acts or omissions the Buyer may be liable, then the Seller shall immediately suspend, delay, or interrupt as ordered by the Buyer. In accordance with Article 6, the Price and the Progress Schedule shall be equitably adjusted by Change Order for the cost and delay resulting from any such suspension.
14.1. TERMINATION FOR DEFAULT Should the Seller fail to deliver items and materials or perform the incidental services required within the time provided under this Agreement or any mutually agreed upon extension of time, or should the Seller fail to perform any of the provisions of this Agreement or fail to make progress so as to endanger performance of this Agreement in accordance with its terms, the Seller may be deemed in default. If the Seller fails within seven (7) calendar days after written notification to commence and continue correction of such default with diligence, then the Buyer may give a second notice to correct the default within three (3) calendar days. If the Seller fails to promptly commence and continue satisfactory correction of the default following receipt of the second notice, the Buyer may terminate this Agreement for default. Such termination shall be in writing. The Buyer may withhold payment, correct the default, and charge the Seller the costs, including reasonable overhead, profit, and attorneys’ fees. Nothing in this subsection shall preclude the Seller from asserting its rights under Article 26. The rights and remedies of the Buyer provided in this subsection shall not be exclusive and are in addition to any other rights and remedies provided by Law or under this Agreement.
14.2. SELLER’S RIGHT TO TERMINATE Upon seven (7) Days' written notice, the Seller may terminate this Agreement if the material, equipment, or incidental services, described in Article 2 has been suspended for one hundred twenty (120) Days in total through no fault of the Seller. The Seller shall be entitled to recover all material, equipment, or incidental services as identified in Article 2 executed and for any proven loss, cost, or expense in connection with such materials, equipment, or incidental services, including all demobilization costs plus reasonable overhead and profit on material, equipment, and incidental services described in Article 2 not performed, and reasonable attorneys’ fees.
15. TERMINATION FOR CONVENIENCE The Buyer may at any time, with seven (7) calendar days’ written notice to the Seller, terminate this Agreement for the convenience of the Buyer. In the event of such termination for convenience, the Buyer shall pay the Seller as its entire and sole compensation its actual and reasonable costs of furnishing materials or equipment to the date of termination, as determined by audit of the Seller’s records, plus fifteen percent (15%) for overhead and profit or if a percentage for both overhead and profits is not specified, a reasonable markup for overhead and profit, but in no event shall such amounts due hereunder exceed the total Price. The Seller shall make its records available at reasonable times and places for the Buyer’s audit. However, should the Seller deem such information proprietary and confidential, the Seller may make such information available only to the Owner and subject to a reasonable non-disclosure agreement. In the event any termination of the Seller for default under Article 14 is later determined to have been improper, the termination shall automatically be deemed a termination for convenience, and the Seller shall be limited in its recovery strictly to the compensation provided for in this article.
16. WARRANTY The Seller hereby expressly warrants that all materials or equipment covered by this Agreement shall conform to the drawings, specifications, data, samples, or other descriptions furnished or incorporated as part of this Agreement in accordance with Article 4, and shall be fit and sufficient for the purpose specified of good material and workmanship, and free from material defect for eighteen (18) months from delivery date. The Seller shall repair or replace, at the Seller's option and expense, any material defect in materials or workmanship that may be discovered during the warranty period. The Seller’s warranty excludes remedies for defects or damages caused by ordinary wear and tear, use for a purpose for which the materials or equipment were not specified, improper or insufficient installation, operation, maintenance, storage, or abuse, and modification not performed by the Seller. The warranties in this section are exclusive, and replace all other express or implied warranties. These warranties shall survive inspection, acceptance, and payment of and for said materials or equipment. These warranties shall extend to the Owner, Buyer, and Buyer’s successors and assigns, and the Seller shall provide directly to the ultimate users written evidence of these warranties as required. However, the Seller shall only be required to pay once for the same claim or damage.
17. PAYMENT AND LIENS Payment for conforming material or equipment shall be made by the Buyer in accordance with any terms indicated in Article 1 and after a receipt by the Buyer of the executed original copy of this Agreement, and receipt of the Seller's invoice. If and when requested by the Buyer, the Seller shall promptly provide affidavits that all of the Seller's suppliers have been paid, and release of all liens either by the Seller or Seller's supplier and claims executed by the Seller to the Buyer in a form acceptable to the Seller, Buyer, and Owner. Acceptance of such form shall not be withheld without reasonable cause. Such releases or waivers of lien may be conditioned upon payment. In no event shall the Seller be required to sign an unconditional waiver of lien or claim, either partial or final, prior to receiving payment or in an amount in excess of what it has been paid. Prior to final payment, the Seller shall provide to the Buyer copies of warranties, applicable manuals, and all other close-out documents required for the materials or equipment by this Agreement.
17.1. LATE PAYMENT Payments due but unpaid shall bear interest from the date payment is due at the prevailing statutory rate at the place of the Project.
18. INSURANCE In the event that the Seller or its employees or agents are required to come onto the Project of the Buyer in connection with the sale of materials or equipment or the rendering of incidental services under this Agreement, including delivery of materials, the Seller shall, prior to entrance on the Project or delivery of materials, purchase and maintain insurance that will protect it from the claims arising out of its operations under this Agreement, including Worker's Compensation Insurance, Commercial General Liability, and Automobile Liability Insurance. The Seller shall maintain at least the limits of liability in a company acceptable to the Buyer as set forth in Exhibit A. The Buyer’s acceptance shall not be withheld without reasonable cause.
19. SAFETY The Buyer contracts with the Seller as an independent contractor to provide all labor, materials, equipment, and incidental services necessary or incidental to perform this Agreement, subject as an employer to all applicable unemployment compensation, occupational health and safety, or similar statutes. In the event that the Seller, its employees, or agents are required to come onto a Project of the Buyer in connection with the performance of this Agreement, the Seller shall comply with all current safety requirements of the Buyer identified in this Agreement, as well as all Laws as defined by Article 23.
20. INDEMNITY To the fullest extent permitted by Law, the Seller shall indemnify and hold harmless the Buyer and its agents, consultants, employees, and others as required by this Agreement from all claims and liabilities for bodily injury or property damage, including reasonable attorneys' fees, costs, and expenses incurred that may arise from this Agreement, and which is not reimbursed by insurance coverage that was required by this Agreement, but only to the extent caused by the negligent acts or omissions of the Seller, or anyone contracted or employed directly or indirectly by the Seller. The Seller shall be entitled to reimbursement of any defense costs paid by the Seller above the Seller's percentage of liability for the underlying claim under this article.
21. WAIVER OF CONSEQUENTIAL DAMAGES The Buyer and Seller waive claims against each other for consequential damages arising out of or relating to this Agreement; however, this waiver shall not apply to any claim for reimbursement or indemnification for any consequential damages one Party was required to pay to a third party as a result of an act or omission of the other party or their employees or agents, and shall not preclude the recovery of any liquidated damages expressly called for by this Agreement.
22. PATENTS The Seller shall indemnify, defend, and hold the Buyer harmless from all suits or claims for infringement of any patent rights or copyrights arising out of the use or sale of the materials or equipment purchased and shall pay and discharge any and all judgments or decrees that may be rendered in any such suit, action, or proceedings, provided the Seller’s ability to do so has not been materially prejudiced by the Buyer’s failure to give the Seller written notice of such suit or claim. Unless identified in this Agreement as requiring patent rights or copyrights, the Seller's obligations under this article shall not apply to materials or equipment specified by the Buyer nor purchased materials or equipment modified by the Owner or Buyer, unless the Seller has consented to such modification in writing, which shall not be unreasonably withheld.
23. COMPLIANCE WITH LAWS At its own costs, the Seller shall comply with all federal, state, and local laws, regulations, codes, and ordinances (“Laws”) applicable to the Seller, Buyer, or the incidental services covered by this Agreement and enacted as of the Agreement Date.
24. ASSIGNMENT Except for assignment of proceeds, no assignment of this Agreement or of any right, obligation, or delegation of duty under this Agreement shall be made without the written consent of the other Party or their duly authorized agent. Any attempted assignment or delegation without such consent shall be void. A delegating Party shall retain responsibility for performance, permit only qualified persons to perform, and provide competent supervision. The terms and conditions of this Agreement shall be binding upon both Parties, their partners, successors, assigns, and legal representatives.
25. WAIVER Either Party’s’ failure to insist on performance of any term, condition, or instruction, or to exercise any right or privilege provided in this Agreement, or its waiver of any breach, shall not thereafter waive any such term, condition, instruction, or any right or privilege.
26. GOVERNING LAW This Agreement shall be governed by the Law in effect at the location of the Project.
27. DISPUTE MITIGATION AND RESOLUTION
27.1. WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, the Seller shall continue to provide materials, equipment, and incidental services as identified in Article 2 and maintain the Progress Schedule during any dispute mitigation or resolution proceedings. If the Seller continues to perform, the Buyer shall continue to make payments in accordance with this Agreement.
27.2. DIRECT DISCUSSIONS If a dispute arises out of or relates to this Agreement or its breach, the Parties shall endeavor to settle the dispute in a cooperative manner, including resolving minor nonconformities that would give rise to economic waste. Within five (5) business days, the Parties' representatives, who shall possess the necessary authority to resolve such matter and who shall record the date of first discussions, shall conduct direct discussions and make a good faith effort to resolve such dispute.
27.3. MEDIATION Disputes between the Parties not resolved by direct discussion shall be submitted to mediation pursuant to the Construction Industry Mediation Rules of the American Arbitration Association (AAA). The Parties shall select the mediator within fifteen (15) business days of the request for mediation. Engaging in mediation is a condition precedent to any form of binding dispute resolution.
27.4. BINDING DISPUTE RESOLUTION If the matter is unresolved after mediation, the Parties shall submit the matter to the binding dispute resolution procedure designated below:
[__X__] Arbitration using the current Construction Industry Arbitration Rules of the AAA, or the Parties may mutually agree to select another set of arbitration rules. The administration of the arbitration shall be as mutually agreed by the Parties.
[_____] Litigation in either the state or federal court having jurisdiction of the matter in the location of the Project.
27.5. The costs of any binding dispute resolution procedures shall be borne by the non-prevailing Party, including reasonable attorneys’ fees, as determined by the adjudicator of the dispute.
27.6. VENUE The venue of any binding dispute resolution procedure shall be the location of the Project, unless the Parties agree on a mutually convenient location.
27.7. MULTIPARTY PROCEEDING All parties necessary to resolve a matter shall be parties to the same dispute resolution procedure. Appropriate provisions shall be included in all other contracts relating to the material, equipment, or incidental services as identified in Article 2 to provide for the joinder or consolidation of such dispute resolution procedures.
28. CONTRACTUAL LIMITATION OF LIABILTY
Buyer and Seller hereby:
[_____] Do not limit contractual liability
[__X__] Limit contractual liability as follows:
Any limitation of contractual liability contained in this article shall not apply to the indemnity obligations and does not otherwise limit either party’s liability beyond this contractual agreement, including, but not limited to, tort, product liability, or third-party claims or suits.
END OF DOCUMENT.