Offer and Contract: The following terms, conditions and certifications apply to all American Refrigeration Company (“ARC”) Purchase Orders, in addition to any terms set forth on the face of an individual purchase order (the “Order”), and any plans, specifications or other documents attached or incorporated by reference therein. Purchase Orders are valid only as written. If price, terms, shipping date or any other expressed condition of the Order is not acceptable, ARC must be notified and must accept in writing any variation prior to shipment or delivery. The Order shall be deemed to have been accepted (i) in the absence of written notification of non-acceptance by the Seller within a reasonable period of time, or (ii) upon timely delivery of the products identified herein to the shipping address specified on the face of the Order. This agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.
Payment: Payment and discount periods shall commence only upon receipt of both the material, or in the case of services, upon completion of the services, and a proper invoice or invoices at destinations specified in the Order. ARC reserves the right to return to Seller for correction any and all invoices containing errors and/or inconsistencies with the Order. It shall be a condition precedent to any payment to Seller that ARC shall have received payment from the General Contractor, Owner or other entity (hereafter referred to as the “Owner”) for whom ARC is providing the services or material.
Changes: ARC may make changes to the Order at any time, and Seller shall accept such changes. If a change causes an increase or decrease in cost and/or time required for performance, an equitable adjustment shall be made and the Order modified accordingly. The price or prices of this Order shall not subject to change or any surcharge, resulting from the imposition now or in the future of any sales tax, federal, state, municipal or otherwise, unless specifically set forth on the Order and agreed to by ARC. No charges for boxing, packing, or cartage will be allowed unless stated on the Order or later agreed to by ARC in writing.
Termination for Convenience or Cause: ARC may terminate the Order or any part thereof for its sole convenience. Upon notice of such termination, Seller shall immediately stop all work and/or shipment of goods hereunder and cause its suppliers and/or subcontractors to cease their work against the Order. Seller shall be paid a reasonable termination charge consisting of a pro rata percentage of the Order price reflecting the percentage of work performed prior to notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for work performed or costs incurred after receipt of notice of termination, nor for costs incurred by Seller’s suppliers that Seller reasonably could have avoided. ARC may terminate the Order or any part hereof for cause if Seller defaults, fails to comply with any terms and conditions of the Order, becomes insolvent or files for bankruptcy protection. Late delivery of goods, or goods and/or the performance of services that are defective or do not conform to the Order shall, without limitation, be causes allowing ARC to terminate the Order for cause. In this event, ARC will not be liable to Seller for any amounts; but Seller shall be liable to ARC for all losses, damages, and expenses, including costs of cover and attorneys’ fees, resulting from the default that caused the termination. If a determination is made that ARC improperly terminated the Order for cause, then such termination shall be deemed to have been for ARC’s convenience. ARC reserves the right to return to Seller at the invoice price all goods which are regularly carried in Seller’s stock.
Delivery: Time is of the essence of the Order. If delivery of goods or services is not complete within the time specified, ARC may, without liability and in addition to its other rights and remedies, terminate the Order, by notice effective when received by Seller, as to goods not yet delivered or services not yet rendered: and ARC may purchase substitute goods or services elsewhere and charge Seller for any additional expense incurred. Acceptance of any part of the Order shall not bind ARC to accept any future shipments nor deprive it of the right to return goods already accepted.
Freight Charges: Unless otherwise specified on the front of the Order, all goods shall be shipped f.o.b. destination and shall include all shipping and freight charges to place of delivery stated on the Order.
Retainagae: Seller agrees that ARC will hold ten (10%) per cent retainage on all payments until the goods or services are finally accepted by ARC and/or are approved by the architect, engineer or designated representative of the Owner, if applicable.
Force Majeure: ARC may delay delivery, performance, or acceptance of the goods or services ordered hereunder in the event of causes beyond its control. Seller shall hold such goods or refrain from furnishing such services at the direction of ARC, and Seller shall deliver the goods when the cause affecting the delay is eliminated. ARC shall be responsible only for Seller’s direct additional costs incurred by holding the goods or delaying performance of this agreement at ARC’s request. Causes beyond ARC’s control shall include, without limitation, government action or failure to act where required, strike or other labor trouble, fire or similar catastrophe, and severe weather or other acts of God.
Warranties: Seller expressly warrants all goods delivered under the Order shall be new and of first quality, sound and merchantable, to be fit and suitable for the particular purpose for which they were purchased, to be free from defects in material and workmanship, to be in strict accordance with the plans, specifications and documents attached or incorporated into the Order and to be of the quantity, size and dimensions ordered. This express warranty shall not be waived by reason of the acceptance of the goods or payment therefore by ARC. The Seller warrants that all services performed under this Order shall be done in a good and workmanlike manner consistent with the generally acceptable standards of practice in the applicable trade, and in accordance with plans, specifications and documents attached or incorporated into the Order. Goods and services provided hereunder shall be subject to the approval of the architect, engineer or designated representative of the Owner, if applicable. Seller warrants that the equipment covered under this Order will produce the capacities or meet design specifications and function: (1) as called for in the plans, specifications or documents attached or incorporated into the Order; (2) as set forth or referenced in the Order itself; and (3) as published or warranted by the manufacturer for the equipment involved. In the event the goods or services do not meet the foregoing requirements, Seller shall immediately on notice replace the defective or non-complying goods, or remedy any deficiency, without expense to ARC; and further, Seller shall pay to ARC all consequential loss or damage resulting therefrom.
Compliance: Seller certifies that all goods or services furnished under the Order, including materials and incident thereto, shall comply with all applicable federal, state and local laws and regulations concerning health, safety and environmental standards and requirements.
Risk of Loss: Seller assumes all risk of loss of or damage to all goods ordered and all work in progress, materials, and other items related to this Order until the same are finally accepted by ARC. Seller also assumes all risk of loss of or damage to any goods, work in progress, materials, and other items rejected by ARC until the same are received by Seller or accepted by ARC.
Inspection: Payment for goods or services provided under the Order shall not constitute acceptance thereof. ARC may inspect and test such goods or services and reject any or all items that are, in ARC’s sole judgment, nonconforming. Goods rejected or supplies in excess of quantities ordered may be returned to Seller at its expense. Failure by ARC to inspect and test the goods or services shall not relieve Seller of responsibility.
Hold Harmless: Seller shall defend and hold harmless ARC, its directors, overseers, officers, agents and employees against and from any and all claims, liabilities, losses, damages, expenses, and legal fees whatsoever, without limitation, arising in connection with any goods or services purchased under the Order or from any act, omission, operation, product or service of Seller, its employees, agents, suppliers, and subcontractors.
Insurance: Seller shall maintain adequate insurance in any and all forms necessary to protect both Seller and ARC against all liabilities, losses, damages, claims, settlements, expenses, and legal fees arising out of or resulting from performance of this agreement. Although evidence of certain minimum coverage may be required, nothing contained herein shall abridge, diminish or affect Seller’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or resulting from performance of this agreement.
Limitations: ARC shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental or consequential damages. ARC’s liability on any claim for loss, damage or expense arising in connection with this agreement shall not exceed the price of the goods or services which give rise to the claim. ARC shall not be liable for penalties of any kind. Any action caused by any alleged breach of this agreement by ARC must be commenced within one year after the cause of action has accrued.
Indemnification: The Seller agrees to indemnify ARC and to hold ARC harmless from and against all claims, liability, loss, damage, and expenses including attorneys’ fees, arising from or due to any actual or claimed personal injury, property damage or other damages, including trademark, patent, or copyright infringement, and any litigation based thereon, with respect to any part of the goods and services covered by the Order. The Seller shall defend any such litigation brought against ARC. The Seller’s obligations hereunder shall survive acceptance of the goods and payment therefor by ARC.
Independent Contractor: If Seller’s obligations under the Order require the performance of work by Seller, its employees, agents suppliers or subcontractors on ARC property or elsewhere, Seller agrees that such work or services shall be performed by Seller, its employees, agents, suppliers or subcontractors as independent contractors, and not as employees of ARC, and that such persons doing such work shall not be considered or represent themselves as employees or agents of ARC.
Assignment: No part of the Order may be assigned, transferred, or subcontracted by Seller without ARC’s prior written approval.
Waiver: ARC’s failure to insist on performance of the terms and conditions herein or to exercise any right or privilege, or ARC’s waiver of any breach hereunder, shall not thereafter waive the same or other terms, conditions, rights or privileges or affect any subsequent breach. All prior representations, conversations, or preliminary negotiations shall be deemed to be merged in this Order. No changes to this Order will be considered approved unless this Order is modified by an authorized representative of ARC in writing.
Liens: Seller shall furnish all necessary lien waivers, releases, affidavits or other documents required to keep the Owner’s premises free from liens or claims for liens, arising out of the furnishing of the services, material or equipment provided herein, as payments are made from time to time to under this Order.
Severability: If any part of this agreement is found to be illegal or unenforceable, that part shall be severed from the contract and the rest of the agreement shall be enforceable as written.
Identification of Goods: ARC cannot and will not be responsible for any material received unless each case, etc., is clearly identified on its outer covering as to the Seller and Order Number. If ARC furnishes shipping tags for direct shipments to
ARC’s customer, Seller assumes responsibility of nonacceptance of shipments by ARC’s customer in the event such shipping tags are not attached to packages, cases, etc. On shipments direct to ARC’s customer where no shipping tags are furnished, packages, cases, etc., must be marked as specified on face of Order.