Terms & Conditions

 

1. PURCHASE ORDER RELEASE PROCEDURES.

1. 1. This purchase order shall be contingent upon submittal review and approval.
   2. The actual delivery date and ship to address will be determined by Purchaser after submittal review and Owner-engineer approval. Delivery shall be based on the quoted delivery time frame, project specific requirements and the actual date of the submittal approval by the Owner-engineer. Please note, receipt of approved submittals does not in itself constitute release for fabrication and shipment. Purchaser is to address this request as a separate issue.
   3. DO NOT release for fabrication or shipment until you have been notified by Purchaser that the above -referenced equipment/material has been approved by the engineer of record.

 

2. EFFECT OF ACCEPTANCE. This Purchase Order includes these Terms and Conditions, the Purchase Order form and the terms thereof including those incorporated by reference and exhibits attached thereto, and all modifications issued by Purchaser after execution of this Purchase Order. Acceptance of this Purchase Order shall be deemed given upon any of the following: i) Seller returning a signed copy to Purchaser; ii) commencing performance hereunder; or iii) after fifteen (15) days of Purchase Order issuance Purchaser has not received any rejection from Seller on the Purchase Order. Acceptance shall indicate Seller’s intent to be bound by this Purchase Order, shall constitute acceptance of each of the terms of this Purchase Order, and shall form a contract under the State of California. Seller agrees to comply fully with the terms and conditions hereof and all previous offers by Seller are hereby rejected. Purchaser shall not be bound by and hereby rejects any terms additional to or different from those contained in this Purchase Order that may appear in Seller’s quotations, acknowledgments, proposals, receivers, packing slips, invoices or in any other communication, written or verbal, from Seller unless such terms are expressly agreed to by an authorized Purchaser employee. In no event shall Purchaser’s field employees be authorized to amend or modify the terms of this Purchase Order. Acceptance of materials or services, payment, or any inaction by Purchaser shall not constitute Purchaser’s consent to or acceptance of any such terms. The terms contained in this Purchase Order shall constitute the entire agreement between Seller and Purchaser with respect to the subject matter hereof and may not be modified, added to, or rescinded except by a writing signed by Seller and Purchaser. If bonds are not required at the time of execution of this Purchase Order, Purchaser reserves the right to require a supply contract bond at any time written by a surety and on a form acceptable to Purchaser and will reimburse Seller for the cost of such bond upon Purchaser’s acceptance of Seller’s materials and service. Unless Seller returns signed acknowledgement copy of the Purchase Order within fifteen (15) days of delivery to Seller, Purchaser may at its option rescind this Purchase Order without liability whatsoever.

 

3. PURCHASE PRICE. The total price due for delivery of conforming goods shall be that amount specified in this Purchase Order. The purchase price represents a full accord and satisfaction of the amount to be paid to the Seller and is not subject to cost escalation. The price shall not include taxes for which an exemption is applicable. Purchaser shall have no liability for payment of over shipments, goods not delivered due to shortages or theft at Seller’s facilities, or non-conforming goods. All purchases are FOB Purchaser’s on-site receiving area unless otherwise specified.

 

4. INVOICING. Following acceptance of the materials by the Purchaser, Seller shall email its invoice to [email protected] or mail its invoice to Murray Company 18414 South Santa Fe Avenue, Rancho Dominguez, CA 90221 Attention: Accounts Payable. Seller shall attach a copy of the bill of lading, freight receipt, or proof of delivery which must be signed by a representative of Purchaser in order to be considered valid. The invoice shall reflect a description of the material ordered and delivered, point of shipment, and Purchase Order number. Line items on invoices shall match the line items on the face of the Purchase Order. Seller shall submit unconditional lien waivers following payment and shall submit conditional lien waivers prior to payment if requested by Purchaser. Seller shall not submit invoices that encompass materials ordered through separate Purchase Orders. Extra charges that are not reflected in the Purchase Order will not be permitted except as agreed to in writing by Purchaser. Failure to conform with the requirements of this section shall entitle Purchaser to reject the invoice and not process for payment until a conforming invoice is submitted.

 

5. PAYMENT. All payments by Purchaser under this Purchase Order are conditioned upon receipt by Purchaser of conforming goods and all applicable project specifications. All payment terms shall be stated on the Purchase Order form. All sums to be earned under this Purchase Order shall constitute a fund for the purpose of:

1. 1. First, full completion of the work and/or material to be supplied under this Purchase Order,
   2. Second, payment of any backcharges or claims due Purchaser from Seller,
   3. Third, payment to the laborers and material and service suppliers of Seller who have valid and enforceable mechanic’s lien claims or valid and enforceable bond claims (if the project is bonded). Such tentative earnings shall not be due or payable to Seller or anyone else claiming in Seller’s place and stead, including, but not limited to, a trustee in bankruptcy, receiver or assignee of Seller, until and unless such Purchase Order is fully and satisfactorily completed and any amounts under a, b, or c above are fully paid and satisfied. Purchaser may demand written evidence of Seller’s financial capability to perform and that Seller has made such payments at any time.

 

6. DELIVERY. The times set forth for delivery and any on-site labor if applicable are of the essence. Unless a delivery date is otherwise specified on the face of the Purchase Order form, all deliveries shall conform to the date or dates specified from time to time by Purchaser’s representative. Supplier is responsible for all transportation costs to the destination specified in the Purchase Order unless specifically stated otherwise. Seller must advise Purchaser of the shipping point and initial carrier. Seller shall provide, and direct its carrier to provide, Purchaser forty-eight (48) hours’ notice prior to delivery. Seller will notify its carrier of the jobsite telephone number and jobsite contact name. For delays caused by reasons outside Seller’s control, Seller shall be granted an extension of time as its sole remedy but only if Purchaser is similarly granted a time extension by the Owner. For delays caused by reasons within Seller’s or its carrier(s) control, Seller shall be liable to Purchaser for all reasonable costs, expenses, and damages which Purchaser sustains by reason thereof. Purchaser may deduct such costs from any money then or thereafter to become due to Seller or if the costs exceed money due to Seller then Seller shall be liable for the same, however in no event shall Purchaser deduct money or Seller become liable without substantiating to Seller that Purchaser incurred these costs in a reasonable manner.

 

7. RECEIPT OF MATERIALS. Should loss or damage to the ordered materials occur before Purchaser takes delivery and possession, Seller shall promptly replace in an expedited fashion the materials at the same price stated in this Purchase Order. Purchaser shall have a reasonable time after delivery to inspect the materials and determine their conformity with the Purchase Order. Purchaser’s representative sighing the bill of lading, freight receipt, or other proof of delivery shall not indicate acceptance of the materials. Prior to acceptance of the materials, Purchaser shall have the absolute right to reject any goods which fail in any respect to strictly conform to the requirements of the Purchase Order; such rejection may be exercised regardless of any initial inspection, possession, or payment of any such materials. Risk of loss and clear title to the goods shall pass to Purchaser at the time that conforming goods are received and accepted. Purchaser’s acceptance of materials shall in no way derogate Seller’s warranty obligations hereunder.

 

8. SUBMITTALS. Seller, as required by Purchaser, shall prepare and submit to Purchaser such shop drawings (or other submittals) as may be necessary to describe completely the details of construction of the work. Approval of such submittals by Purchaser and/or architect/engineer shall not relieve Seller of its obligation to perform work in strict accordance with plans, specifications and other contract documents, nor of its responsibility for the proper matching and fitting of the work with contiguous work. Seller shall provide the number of copies of the submittals to Purchaser as requested. Receipt of approved submittals does not constitute release for fabrication and shipment. Seller shall release the materials for fabrication only upon direction by Purchaser pursuant to Purchaser’s Equipment Release Transmittal form. Seller acknowledges and agrees that in the event its submittals are rejected for failure to meet the Owner’s specifications, Purchaser may terminate this Purchase Order and in such event Purchaser shall have no liability whatsoever.

 

9. SUBMITTAL INSTRUCTIONS: Seller shall furnish the required number of sets of the completed submittal data to Purchaser within ten (10) days from the date of this Purchase Order or within a date negotiated between the parties.

Submittals shall include, but are not limited to, seismic calculations, shop drawings, dimensional data, descriptive literature, performance curves, test data, electrical data, wiring diagrams/schematics, and/or any additional requirements as may be set forth in the Contract Documents. Each submittal must be clearly identified with the following information:

1. 1. Date:
   2. Project Name:
   3. Project Location/Address:
   4. Engineer:
   5. Contract Number:
   6. Purchase Order No./Subcontractor No.:
   7. Specification Section No.:
   8. Specification Sub-Section _________ & Paragraph No.:
   9. Contract Drawings No.:
   10. Submitted by:
   11. Manufacturer’s Name:

NOTE: Reference Specifications for any additional requirements, such as labeling, binder types, etc.

 

10. O&M MANUAL INSTRUCTIONS. Seller shall furnish the required number of sets of completed O&M Manuals. Reference specific project specification(s) requirements.

1. 1. O&M Manuals shall include, but not be limited to the following:
   2. Installation instructions.
   3. Operation/Maintenance instructions and schedules.
   4. Lubrication Instructions/Schedules.
   5. Spare parts list and spare parts price lists.
   6. Manufacturers cut sheet, rating data curves, (with applicable sections highlighted).
   7. Belts, sizes, types and lengths, as well as pulley sizes.
   8. Test report(s) and inspection report(s), as specified.
   9. Serial numbers of all principal pieces of equipment.
   10. Seller’s name, address, phone number and contact name.
   11. Wiring and control diagrams as specified for both packaged equipment, interconnecting and field equipment installed. Final setting for all controls, with control point(s) and throttle range(s) shall be included on the final revision of the control drawings.
   12. Cleaning report(s), as required.
   13. Three (3) complete sets of the final approved revision(s) of the control diagrams and the valve charts shall be mounted in an acceptable frame with clear glass front, or as otherwise specified.

FINAL PAYMENT WILL NOT BE RELEASED UNTIL O&M MANUALS ARE RECEIVED AND APPROVED BY PURCHASER.

 

11. SHOP INSPECTION. If inspection of the ordered materials at the Seller’s shop/facility is required by Purchaser, Purchaser shall notify Seller of the need therefor and Seller shall promptly make such inspection available within five (5) days of Purchaser’s request.

 

12. START UP/INSTALLATION. Seller shall provide start-up services for all the equipment furnished on this Purchase Order. Start-up shall include, but not be limited to, alignments, calibrations, testing, and all specific or necessary training of Owner’s personnel, as specified by the contract documents. Seller is to pay for all costs associated with start-up services. Start-up of equipment is required to be performed by a factory authorized representative or qualified agent, thereof. Purchaser may withhold 5% of the total Purchase Order amount, or an amount as otherwise specified in the Purchase Order line item breakdown, until start-up services are completed and accepted by Purchaser and Owner.                              

 

13. In the event that the goods ordered hereunder require, in connection with the installation thereof, the services of a supervisor, expert, or other employee connected with or employed by Seller, Seller agrees to furnish same, without additional charge. It is understood that such individual shall not, while performing his duties with respect to the goods covered by this Purchase Order, be deemed an agent or employee of Purchaser, and Seller will assume full responsibility for all acts and omissions of such party.

 

14. ON-SITE EQUIPMENT MAINTENANCE. From the time that Seller delivers the equipment through the commencement of warranty, Seller shall either: a) provide on-site project instruction to Purchaser’s personnel for all the required and/or necessary preventative maintenance as is recommended by the manufacturer(such instruction shall include the manufacturer’s written procedures and documentation requirements); or b). perform the on-site preventative maintenance requirement(s) at reasonable rates approved by Purchaser. When such rates are approved, all such additional costs will be reflected as a separate Purchase Order line item break-out.

 

15. QUALITY ASSURANCE. Seller shall comply with its own program governing quality assurance and controls in providing the materials and services required hereunder and will, upon request, provide Purchaser with a copy of said program.

 

16. CHANGES. Purchaser shall have the right to order changes at any time in and to the quantities, specifications, drawings, requirements and delivery time for the goods of this Purchase Order and Seller shall comply with all such written orders. Should any changes cause an increase or decrease in the purchase price or in the time for delivery, the price and/or delivery time shall be equitably adjusted accordingly however no such increase or decrease shall be binding on Purchaser and Seller until accepted in writing. Any decrease to the quantity of items purchases shall not impact the unit pricing originally quoted by the Seller to the Purchaser.

 

17. WARRANTY. Seller warrants that all articles, material, and work supplied by Seller under this Purchase Order will be merchantable, fit for Purchaser’s and Owner’s intended purposes, shall be free from defects in design, material and workmanship, and will conform to the Specifications, Drawings, samples or other descriptions furnished or adopted by Purchaser. Seller also guarantees that the items as specified in the Purchase Order are of sufficient size or capacity to perform as specified. Approval by Purchaser of any sample, model, drawing or technical specification furnished by Seller shall not release or relieve Seller of its warranty obligations. Seller also warrants to Purchaser that services will be performed in a first-class workmanlike manner consistent with industry standards. In addition, if material furnished contains one or more manufacturer’s warranties, Seller hereby assigns such warranties to Purchaser. All warranties shall survive inspection, acceptance and payment. Unless specified otherwise on the Purchase Order form, the warranty period shall not commence until the project is completed and accepted by the Owner as per the specification requirements.

Seller agrees to promptly repair or replace, at no cost to Purchaser or Owner, any unit or part(s) thereof that prove defective or that do not operate per the plans and specifications or to remove the items and refund the full purchase price. Seller further agrees to bear all costs associated with: 1) the removal and/or correction of work of others necessary to perform the warranty work; 2) damage to property resulting from such defective item. Such remedies shall be available to Purchaser in addition to all others afforded to it at law or equity.

 

18. INSURANCE. Seller shall carry and maintain at least the types and amounts of insurance coverage reflected below. Seller shall endorse its policies to provide proof of such insurance coverages.

1. 1. Worker’s Compensation: Statutory Limits
   2. Commercial General Liability: $1,000,000 per occurrence, $2,000,000 in the aggregate; $2,000,000 Products/Completed Operations
   3. Auto Liability: $1,000,000 bodily injury and property damage per occurrence combined single limit, owned, hired, or non-owned.
   4. Excess Liability: $2,000,000 per occurrence, $2,000,000 in the aggregate.
   5. Additional insured status for the Owner of the Project, the general contractor (if any), Purchaser, and any other entity directed by Purchaser.

Seller shall require its subcontractors / subconsultants including its carrier (if any) to maintain at least the insurance coverages described above. Seller shall be liable for all acts/omissions of its subcontractors / subconsultants including its carrier (if any). Seller’s maintaining or failure to maintain the insurance coverage and limits required below or Project specific coverages shall not limit the Subcontractor’s liability in any way.

 

19. INDEMNITY. To the fullest extent permitted by law, Seller shall defend, indemnify and hold harmless Purchaser, general contractor, and the project Owner and any other indemnitees identified by Owner from and against all claims, demands, liabilities, damages, losses, fines, or expenses based upon any bodily injury (including death), damage to property, or economic loss that occurs or is alleged to occur in connection with this Purchase Order including breach of this agreement. Seller shall, at its own cost and expense, pay all costs and expenses of suit, including actual attorneys’, consultants’ and/or experts’ fees in connection therewith, and any judgment rendered therein. The indemnity obligations described herein shall survive termination and /or performance hereof.

 

20. PATENTS AND COPYRIGHTS. Seller warrants that it is fully vested with the right to sell and deliver the materials identified in this Purchase Order and that the sale or use of such materials does not infringe on any patent. Seller agrees to indemnify and hold harmless Purchaser, its officers, agents, employees and vendees from any and all loss, expense, damage, liability, claims or demands, either at law or in equity, including attorneys’ and experts’’s fees, for actual or alleged infringement of any patent, invention, design, trademark, or copyright, or other intellectual property arising from the purchase, use or sale of materials or articles required by the Purchase Order.

 

21. DAMAGE TO PROPERTY. Seller shall be liable for any damage to personal or real property of any party during delivery of the materials and/or the furnishing of the services described herein and shall repair or cause to be repaired at its expense any such damages in a manner satisfactory to Purchaser. Should Seller fail to commence remediation of any such damage within five (5) days of receiving notice from Purchaser, Purchaser may repair the damaged property and deduct the costs thereof from any money then or thereafter to become due to Seller or if the costs exceed money due to Seller then Seller shall be liable for the same, however in no event shall Purchaser deduct money or Seller become liable without substantiating to Seller that Purchaser incurred these costs in a reasonable manner.

 

22. TERMINATION. Purchaser may terminate the work to be performed under this Purchase Order in whole or in part at any time, with or without cause, by written notice to Seller. Upon notice of termination Seller shall immediately stop all work under the Purchase Order. In the event of a termination for failure to meet the Project specifications or performance criteria, Purchaser may terminate the Purchase Order without liability. In the event of a termination for failure to meet the schedule agreed to by the Parties, Purchaser may terminate the Purchase Order without liability and Seller shall be liable for any costs that Purchaser incurs as a result thereof. In the event of a termination for convenience, Seller shall be compensated for actual, reasonable, substantiated costs of specially manufactured materials which shall be subject to review and negotiation plus 10% overhead and 5% profit provided that Seller is not in breach of its obligations hereof at the time of termination. If the materials ordered are stock goods instead of specially manufactured, Purchaser shall pay to Seller its reasonable restocking costs which shall be subject to negotiation.

 

23. REMEDIES. If Seller fails to perform any of its obligations hereunder, Purchaser shall be entitled to all remedies and damages provided by law in addition to the remedies described herein. These terms and Conditions are not intended to limit Purchaser’s rights and remedies at law and in equity, all of which are fully reserved.

 

24. FORUM SELECTION. Any action between the parties shall be filed in the Superior Court of California in Los Angeles County or in the United States District Court for the Central District of California, Western Division. The prevailing party in any legal action between the parties relating to this Purchase Order shall be the party that receives an award of at least 75% of its total claims in an action or that is required to pay no more than 25% of the other party’s total claims in an action. The prevailing party shall recover from the other party reasonable legal costs, including attorney’s and consultant’s fees, in connection with such action.

 

25. CONSEQUENTIAL DAMAGES. Neither party shall be liable to the other for any indirect, consequential or special damages, even if a party has been advised of the possibility of those damages or those damages could have been reasonably foreseen by that party. This section shall not limit Seller’s obligations or liabilities under the warranty and indemnification provisions of this Purchase Order.

 

26. NOTICE OF LABOR DISPUTES. Seller shall employ or contract with only such labor as will work harmoniously with other labor employed by or contracted with Purchaser. Seller agrees that whenever an actual or potential labor dispute delays or threatens to delay the timely performance of this Purchase Order, Seller shall immediately give notice thereof to Purchaser and will be obligated to Purchaser to take all steps to resolve the impact to Purchaser of such dispute, including but not limited to replacement of Seller’s labor.

 

27. LIENS. Seller shall promptly pay all amounts due for labor, materials and equipment used in Seller’s performance of this Purchase Order. On request by Purchaser, Seller will furnish evidence acceptable to Purchaser of such payments and obligations. Provided Purchaser has complied with its payment obligations under the Purchase Order, in the event that Seller’s suppliers, subcontractors, or any party for which Seller has hired in furtherance of this Purchase Order should file any lien, stop payment notice, bond claim or claim relating to this Purchase Order, Seller shall bond over such lien within five (5) days of notice from Purchaser. Seller shall defend and indemnify Purchaser from any and all expenses it incurs as a result of such actions and shall promptly resolve the dispute underlying the lien and cause such lien to be removed. Purchaser reserves the right to pay such claims or bond over such liens upon notice to Seller and deduct all cost thereof from any amounts due to Seller.

 

28. APPLICABLE LAW. This Purchase Order shall be governed by these terms and conditions, the drawings, specifications, addenda and other contract documents. In the case of conflict between these documents Seller shall be bound by the more stringent requirement as determined by Purchaser. Otherwise, the validity, interpretation and performance under this Purchase Order shall be governed by the laws of the state where the project is located. Purchaser is an Equal Opportunity Employer. Unless exempt, Seller shall comply with the Equal Employment Opportunities of the Civil Rights Act of 1964 (as amended), executive Orders 11246 and 11375 (as amended), Age Discrimination in Employment Act of 1967, Rehabilitation Act of 1973, the Vietnam Era Readjustment Act of 1974, Federal, State, and/or local safety related laws and regulations, the Hazard Communication Standard for the Construction Industry and any Federal, State and local Right to Know legislation, and with all other governmental laws, orders and regulations relative to wages and hours of labor.

 

29. ASSIGNMENT (TRANSFER). Seller shall not assign or transfer this Order, or any part hereof, or any amount due and payable or to become due and payable hereunder, without the written consent of Purchaser. Any such assignment or transfer without such written consent shall be null and void. In the event that Seller is terminated by Purchaser for cause or convenience, Seller shall, if requested by Purchaser, assign its sub-subcontracts, equipment, and materials contracts to Purchaser prior to such termination becoming effective and Purchaser shall assume the same. In the event that Purchaser is terminated by a Owner or General Contractor, Purchaser may assign this Purchase Order to the General Contractor or Owner who will assume Purchaser’s rights and obligations thereunder and Seller agrees to be bound by such assignment.

 

30. U.L. REQUIREMENTS. All electrical components will be U.L. approved and labeled, including control panels as a completed unit. If the product purchased is listed as a unit, the entire unit shall be UL approved and labeled.

 

LABOR COMPLIANCE. Seller shall comply with and agrees to be bound by all applicable federal, state and local laws and regulations, including, but not limited to, all provisions of the Fair Labor Standards Act, ADA, FMLA, the California Labor Code, the California Fair Employment and Housing Act, and the California Family Rights Act. If applicable to Seller’s scope of work under this Purchase Order, upon request of Purchase, Seller shall submit certified payroll records to Purchaser no later than three (3) working days after labor has been paid. Seller acknowledges that it has conducted its own independent investigation of the wage rates to be paid and whether its work will be subject to prevailing wage requirements or the requirements of the Davis-Bacon Act and/or California Labor Code and that it has not relied upon any statements or representations by Purchaser with respect to such matters. On all projects subject to state or local prevailing wage requirements, Seller shall comply with any applicable California prevailing wage laws. With respect to such projects, the provisions of California Labor Code Sections 1771, 1775, 1775, 1777.5, 1813 and 1815 are incorporated herein by this reference. On all such projects, as a condition precedent to final payment, Seller agrees to furnish certified payrolls promptly upon demand and further agrees to cooperate fully with Purchaser to verify compliance with labor laws and regulations, including requirements under the Davis-Bacon Act or the California Labor Code. Such cooperation shall include, without limitation, furnishing copies and originals of records and providing access to employees or witnesses for interviews and statements. In addition to and without derogation to any other rights, Purchaser may withhold sufficient funds to protect against any claims related to labor requirements. Seller agrees that the amounts set forth as the Agreement Price shall be deemed to be full compensation for compliance with such laws, regulations, or requirements, including payment of all applicable wage rates, and that no additional compensation will be owed to Seller in the event that Seller is required thereunder to pay higher wages or incur additional costs that Seller contends that it did not anticipate. Seller agrees to defend and indemnity Purchaser for any costs and expenses as a result of Seller’s failure to comply with this section.

1. Rev. 8.2.23