Purchase Standard Terms & Conditions

These Standard Terms and Conditions (“Terms”) will apply to any Purchase Order to which these Terms are attached or incorporated (“Order” and together with these Terms, the “Agreement”). Terms not otherwise defined in these Terms will have the meaning provided in the Order. The Agreement supersedes all prior negotiations, discussions, and dealings concerning the subject matter hereof, and will constitute the entire agreement between Contractor and Vendor. In the event of a conflict between these Terms and the specific provisions contained in the Order, the specific provisions contained in the Order will prevail. Contractor objects to and rejects any provision additional to or different from the Agreement that may appear in Vendor’s proposal, invoice, acknowledgement, confirmation, writing, or in any other prior, contemporaneous or later communication from Vendor to Contractor, unless such provision is expressly agreed to in a writing signed by Contractor.

1.     GENERAL. The goods, materials, supplies, and equipment being provided hereunder are required for performing a further contract between Contractor and Owner, including all plans, specifications, provisions and documents referenced therein (together, “Prime Contract”), for the Project. The Prime Contract is hereby incorporated by reference and made available to Vendor upon request. The “Contract Documents” include the Agreement, the Prime Contract, and all exhibits and attachments to the Agreement or incorporated by reference into the Agreement. By executing the Order, Vendor acknowledges receipt of all Contract Documents and confirms it has read and fully reviewed all Contract Documents.

2.     GOODS & MATERIALS: Vendor shall furnish the goods, materials, supplies and equipment set forth in the Agreement including, but not limited to all fabrication, design related to such goods, materials, supplies and equipment (all collectively referred to herein as “Goods”) and deliver such Goods to Owner as set forth in the Agreement. To the extent set forth in the Agreement, the Goods shall include all fabrication, shop drawings, and design related to such Goods.

3.     TERMS. No contract is formed except upon Vendor’s unconditional acceptance of the Agreement. The Agreement is the final expression of the contract and shall not be explained, varied, or contradicted by any parol or extrinsic evidence, prior course of dealing or usage of trade. No changes or modifications in the terms and conditions and no assignment of the Agreement shall be made except upon Contractor’s written authority. If any term or condition hereof, or the application thereof to any person or circumstance, shall to any extent be or be declared to be invalid or unenforceable, the remainder of the Agreement, and the application of such term or condition to any other person or circumstance, shall not be affected thereby, and each other provision, term, covenant and condition of the Agreement shall be valid and enforceable to the fullest extent permitted by law.

4.     DELIVERY TIME IS OF THE ESSENCE. Delivery shall be made according to the Delivery Schedule and Delivery Terms on page 1 of the Order, as modified in the sole discretion of Contractor, or as coordinated and agreed with the Contractor in writing, so as not to delay, interfere with or damage Contractor in the performance of the Project. Vendor must provide assurance of ability to meet the delivery schedule within three calendar days of Contractor’s demand. Vendor shall not be entitled to an extension of time for delivery unless Owner has granted such a time extension to Contractor. Vendor shall not be entitled to a price increase for delays in delivery unless Owner has granted such a price increase to Contractor. The delivery terms used in the Agreement are delivery terms only and all risk of loss for all Goods shall remain with Vendor until acceptance as set forth in Article 6 below. Vendor shall be responsible for all damages for delays caused by Vendor or caused by those whose acts or omissions Vendor is responsible for.

5.    INSTALLATION. Not applicable.

6.    TENDER, INSPECTION AND ACCEPTANCE. Vendor shall not be deemed to have tendered any Goods prior to inspection and written acceptance by Owner or its designated representative (“Owner’s Representative”). Vendor shall determine and fully comply with Owner’s submittals, inspection and acceptance procedures. The decisions of Owner shall be conclusive and binding on Vendor. Approval or acceptance by Owner or Contractor shall not relieve Vendor of liability for any nonconforming or defective Goods or services and otherwise fully complying with the obligations of the Agreement and the Contract Documents.

7.    TOTAL AGREEMENT AMOUNT/ PRICE. There shall be no variation in price or the Total Purchase Order Amount identified on page 1 of the Order without Contractor’s prior written approval. If the price is based on an agreed rate per unit, any variation of quantity shall be based on unit price and Vendor agrees to be bound by Contractor’s measurement of said units. Unless otherwise expressly specified in the Order, Vendor’s prices and terms are firm for the duration of the Project.

8.     PAYMENT. Payment shall be made in accordance with the Agreement and as stated on page 1 of the Order. Contractor reserves the right to retain from any payment an amount reasonably necessary to protect against any liability relating to the Agreement.

Vendor’s acceptance of final payment releases Contractor of any and all potential claims by Vendor. As a condition precedent to Contractor’s obligation to make payment, the Vendor shall provide such evidence as the Contractor may direct, including but not limited to invoices, delivery tickets and purchase orders for all Goods incorporated into the Project. As a further condition to payment, Vendor shall furnish to the Contractor the following: ( 1 ) original, Conditional and/or Final Waivers and Releases of Lien, as appropriate, from Vendor, suppliers or sub-subcontractors, and any other lienors through the current invoice in the form attached to the Order as Exhibit F; ( 2 ) any other documentation requested by Contractor or Owner to substantiate that all suppliers, vendors, equipment rental and any other entities that are providing services and labor to the Vendor are being paid timely; ( 3 ) a current Sworn Statement of Account from the Vendor setting forth the names and addresses of all lower tier subcontractors and suppliers with whom the Vendor has contracted, if any, the amount of such sub-subcontract, the amount requested for any lower tier subcontractor or supplier in the current invoice, the amount to be paid to the lower tier subcontractor or supplier from such progress payment, together with a duly executed waiver and release of lien from the lower tier subcontractor and supplier establishing receipt of payment of all amounts requested and disbursed; ( 4 ) any other documentation reasonably requested by Contractor, Owner’s Representative or Owner. Vendor may include material deposit amounts in an invoice with the Contractor’s written approval if set forth in the Agreement, and if so approved, such deposit shall be applied toward further amounts due Vendor. Final payment shall be made within 30 calendar days after the date of the delivery Goods to the Contractor unless otherwise indicated on page 1 of the Order, acceptance of all Goods by Owner, and submission of a final invoice and all documentation required herein this Paragraph, along with Vendor and any manufacturer warranty(ies), and receipt of final payment from Owner. Any payment hereunder is not acceptance of any Goods or performance hereunder, and is without prejudice to any and all claims that Contractor may have against Vendor.

9.     PASS THROUGH CLAIMS. In the event of any claim or change in time or scope due to the actions of the Owner, Vendor agrees to be bound to the same extent Contractor is bound under the applicable Contract Documents. Vendor acknowledges that it shall have no greater right of claim, whether for time or money, against the Contractor than the Contractor has against the Owner. Vendor agrees to be bound by the decision of the Owner or the claims process specified in the Contract Documents. Additionally, Vendor agrees to make all claims or requests for additional compensation, damages, and/or time for which the Owner may be liable in strict compliance with the terms and conditions of the Contract Documents, including adherence to the required notice, timing, documentation, and dispute resolution methods/forums specified for similar claims by the Contractor against the Owner. Failure to make such claims or requests pursuant to the terms and conditions of the Contract Documents shall result in Vendor waiving all such claims or requests.

10.    CHANGES. There shall be no alteration, addition, omission, substitution or change in the Goods to be provided, except upon a written change order signed by the Contractor. Any change or adjustment in the price by virtue of such Change Order shall be specifically stated in said Change Order. Change Orders are subject to the terms of the Agreement and all other Contract Documents. Prior to the issuance of any Change Order, the Contractor may require the Vendor to furnish to the Contractor a detailed breakdown showing the difference in value of the Goods altered, added, omitted, substituted or changed by the proposed Change Order. Any extension of time needed as a result of a proposed Change Order shall be requested by the Vendor, in writing, prior to the issuance of the Change Order.

11.    WARRANTY. Vendor warrants to Contractor and Owner that the Goods furnished under the Contract Documents will be of good quality and new unless the Contract Documents require otherwise. The Vendor further warrants that the Goods will conform to the requirements of the Contract Documents. Goods not conforming to these requirements shall be considered defective. Vendor’s warranties, express or implied, shall not be waived by reason of any inspection, acceptance or payment and shall remain in effect for the period of not less than one ( 1 ) year from final completion of the Project or as required by the Contract Documents, whichever is longer. Vendor hereby provides to the Owner and Contractor all warranties relating to the goods implied by law, including the warranty of merchantability and warranty of fitness for a particular purpose. The Vendor further warrants that the Owner and Contractor shall receive the benefit of standard manufacturer’s warranties and guarantees applicable to the Goods and shall assign all such warranties to Contractor and Owner. Vendor shall, upon three ( 3 ) business days’ written notice, correct or replace any defective or deficient Goods. If Vendor fails to do so, Contractor may, through any means necessary, undertake to repair or replace such defective, deficient or non-compliant Goods and all costs incurred by Contractor in correcting such defective or deficient Goods shall be the responsibility of Vendor.

12.    INDEMNITY.

( a ) TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CHAPTER 151 OF THE TEXAS INSURANCE CODE, AND EXCEPT AS SET FORTH IN SUBPARAGRAPH 12 ( b ) BELOW, THE VENDOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CONTRACTOR, THE OWNER, AHS RESIDENTIAL, LLC, AND THE OWNER’S REPRESENTATIVE(S), AND THEIR RESPECTIVE PARENT COMPANIES, AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES (THE "INDEMNITEES") FROM AND AGAINST ALL CLAIMS, LIABILITY, DAMAGES, LOSSES EXPENSES AND COSTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND CONSULTANT COSTS, AT THE INITIATION OF A CLAIM OR LITIGATION AND THROUGH TRIAL AND APPEAL, ARISING OUT OF OR RESULTING FROM BODILY INJURY OR DEATH OF ANY PERSON, OR PROPERTY DAMAGE, INCLUDING LOSS OF PROPERTY ARISING OR ALLEGED TO ARISE OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT OR VENDOR’S PERFORMANCE OF THE GOODS, WORK OR OTHER ACTIVITIES OF VENDOR, BUT ONLY TO THE EXTENT CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULT OF VENDOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY VENDOR OR ANYONE FOR WHOSE ACTS VENDOR MAY BE LIABLE.

( b ) NOTWITHSTANDING THE FOREGOING IN SUBPARAGRAPH 12 ( a ), TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CHAPTER 151 OF THE TEXAS INSURANCE CODE, VENDOR SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE INDEMNITEES FROM AND AGAINST ALL CLAIMS, LIABILITY, DAMAGES, LOSSES EXPENSES AND COSTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND CONSULTANT COSTS, AT THE INITIATION OF A CLAIM OR LITIGATION. AND THROUGH TRIAL AND APPEAL, ARISING OUT OF OR RESULTING FROM BODILY INJURY TO, OR SICKNESS, DISEASE OR DEATH OF, ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF VENDOR OR ANY OF ITS SUBCONTRACTORS OR SUPPLIERS, REGARDLESS OF WHETHER SUCH CLAIM, LIABILITY, DAMAGE, LOSS, EXPENSE OR COST IS CAUSED, OR IS ALLEGED TO BE CAUSED, IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY INDEMNITEE, IT BEING THE EXPRESSED INTENT OF THE PARTIES THAT IN SUCH EVENT THE VENDOR IS TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN NEGLIGENCE, WHETHER IT IS ALLEGED TO BE THE SOLE OR CONCURRING CAUSE OF THE BODILY INJURY, SICKNESS, DISEASE OR DEATH OF THE VENDOR’S EMPLOYEE OR THE EMPLOYEE OF ANY OF ITS SUBCONTRACTORS OR SUPPLIERS OR ANYONE FOR WHOSE ACTS THE VENDOR MAY BE LIABLE. THE INDEMNIFICATION OBLIGATIONS UNDER THIS PARAGRAPH SHALL NOT BE LIMITED BY ANY LIMITATION ON THE AMOUNT OF TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR VENDOR UNDER WORKERS COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS. VENDOR SHALL PROCURE LIABILITY INSURANCE COVERING ITS OBLIGATIONS UNDER THIS PARAGRAPH. THE PROVISIONS OF THIS ARTICLE 12 SHALL SURVIVE TERMINATION OF THE AGREEMENT.

13.    DAMAGES. Failure of Vendor to strictly perform the Agreement will result in damages to Owner, Contractor, Contractor’s other vendors and subcontractors, and other contractors retained by Owner including, but not limited to direct, consequential and incidental damages. Vendor shall bear the costs and be directly responsible for all such damages suffered by Owner, Owner’s contractors, Contractor, Contractor’s other vendors and subcontractors, and any others who may be impacted by Vendor’s failure to strictly perform the Agreement.

14.    CANCELLATION. Contractor may cancel the Agreement for its convenience in whole or in part by written notice at any time. Upon such notice, Contractor shall pay Vendor its documented, reasonable costs incurred in accordance with the Agreement prior to cancellation, unless the cancellation arises out of any default, act or omission by Owner or public authority in which case, Contractor shall not be obligated to pay Vendor any sum greater than the reasonable costs Contractor actually recovers from Owner on Vendor’s behalf, less any costs incurred by Contractor.

15.    TERMINATION. Notwithstanding any other provisions of the Agreement and without limiting any other remedies available, Contractor may terminate the Agreement in whole or in part if: ( a ) Vendor is in breach and such breach in Contractor’s sole opinion is not capable of remedy or ( b ) Vendor’s breach is not remedied within three calendar days of Contractor giving written notice to Vendor. In the event any termination is later determined to be improper, the termination shall be deemed a cancellation as defined in Article 14 and Vendor shall be limited to the recovery specified in Article 14.

16.    COMPLIANCE WITH LAWS AND STANDARDS. Vendor shall comply with all federal, state and local laws, executive orders, codes and regulations effective where the Agreement is to be performed along with those incorporated herein by law or through the Contract Documents.

17.    WAIVER. No waiver by Contractor of any breach of the Agreement and no failure by Contractor at any time to exercise any rights or remedies shall be deemed to constitute a waiver of any subsequent breach.

18.    LAW, FORUM, JURISDICTION AND WAIVER OF JURY TRIAL. The Agreement shall be governed by the laws of the State of Texas. Any dispute arising out of or relating to the Agreement, or the breach thereof, which is not resolved by the terms and provisions of the Prime Contract shall be brought and maintained in a court of competent jurisdiction located in Dallas County, Texas. Vendor submits to the exercise of personal jurisdiction by the State of Texas over Vendor. VENDOR HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY AND ALL DISPUTES OR CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT, OR THE BREACH THEREOF.

19.     TAXES, CHARGES, ETC. Vendor shall be responsible for and shall pay any and all taxes, tariffs, duties, charges and fees imposed directly or indirectly on account of its performance of the Agreement, unless specifically stated otherwise herein. At no time shall there be any increase or escalation in price based on any such charges, even if the charges are increased or assessed for the first time, or if tax rebates or credits are eliminated, after execution of the Order. Upon demand, Vendor shall substantiate that all such charges have properly been paid.

20.    INSURANCE. Vendor shall obtain, and maintain until final completion of the Project by Contractor, full insurance coverage and limits required by the most stringent for each particular insurance coverage and limit of either ( 1 ) those specified in the Prime Contract; ( 2 ) those provided elsewhere in the Agreement; or ( 3 ) or as listed below:

( a ) Workers’ Compensation as required by the State of Texas and in amounts sufficient to secure the benefits of the applicable Worker’s Compensation Law for all its employees, and, as applicable to the Agreement and the Federal Employer’s Liability Act covering all of Vendor’s employees, directly or indirectly engaged in the performance of the Agreement. Workers’ Compensation policies must be in the name of the Vendor. Policies through payroll leasing companies are unacceptable.

( b ) Employer’s Liability with limits of $1,000,000.00 each accident, $1,000,000.00 Disease, each employee and $1,000,000.00 Disease, policy limit.

( c ) Commercial General Liability, Broad Form Property Damage and Contractual Liability including Vendor’s indemnity obligations in the Agreement with minimum per project limits of $1,000,000.00 per occurrence, $2,000,000.00 aggregate for bodily injury and property damage and $2,000,000.00 products/completed operations aggregate. General aggregate shall apply separately to this Project. Unless otherwise agreed by Contractor in writing, Vendor shall maintain Two Million Dollars ($2,000,000.00) in umbrella/excess liability insurance. For Orders with values of Two Million Dollars ($2,000,000.00) or greater, Vendor shall maintain umbrella/excess liability insurance with minimum limit of Five Million Dollars ($5,000,000.00).

( d ) Auto Liability Insurance. Vendor and each of its subcontractors (at all tiers), shall provide Auto Liability Insurance for the ownership, maintenance or use of all owned, non-owned, and hired vehicles used in connection with performance of the Agreement, including loading and unloading. The policy provided by the Vendor and its subcontractors (at all tiers), shall have a limit of no less than $1,000,000.00 per occurrence combined single limit for bodily injury and property damage.

( e ) Professional Errors and Omissions Liability Insurance. If the Vendor’s scope requires the utilization of professional services, including but not limited to design, engineering or architectural services, or where otherwise requested by Contractor, Vendor shall provide a Professional Errors and Omissions Liability Insurance policy covering the errors, acts or omissions of the Vendor with a limit of not less than $1,000,000.00, or higher if set forth in the Agreement.

( f ) Vendor shall not sublet or subcontract any part of the Agreement without assuming absolute responsibility for requiring similar insurance from its subcontractors vendors, suppliers and material men, at any tier. Vendor shall be responsible for all deductibles under any insurance policy provided by the Vendor. The Indemnitees and other parties as required by the Contract Documents or as requested in writing by Contractor shall be named as additional insureds on Vendor’s general liability policies, auto, and excess or umbrella liability policies via Insurance Services Office (ISO) endorsements CG 2010 11/85 or its 2001 equivalent, as well as on Vendor’s automobile liability policy. In addition, additional insured coverage shall apply as primary and non-contributing insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured. Vendor’s insurance and the insurance of any of its subcontractors (at any tier) shall not contain any exclusion for residential construction or other exclusion that would preclude coverage based on the nature of the Project. Vendor and its subcontractors (at any tier) shall maintain all required insurance through completion of the Project and shall maintain completed operations coverage and professional liability insurance through the statute of repose.

( g ) A waiver of subrogation in favor of Indemnitees and other parties as required by the Contract Documents or as requested in writing by Contractor shall be included on all insurance policies furnished by Vendor, excluding professional liability. Upon written request of Contractor, Vendor shall provide Contractor with a copy of any policies of insurance required to be maintained pursuant to the Agreement. Unless prohibited by the property insurance provided by Owner or Contractor pursuant to the Prime Contract, the Contractor and Vendor waive all rights against each other and against the Owner, the Architect, separate contractors and all other subcontractors for damages caused by fire or other perils to the extent covered by property insurance provided by Owner or Contractor pursuant to the Prime Contract, except such rights as they may have to the proceeds of such insurance.

21.    WAIVER OF CONSEQUENTIAL DAMAGES. Vendor shall not under any circumstances be entitled to claim or recover, and Vendor hereby waives any right to claim or recover, any indirect damages, special damages or consequential damages including, but not limited to, loss of bonding capacity, loss of bidding opportunities, loss of business, and insolvency, whether such claim is based in contract, in tort, or any other legal theory.

22.    ATTORNEYS’ FEES. In the event that any litigation or other dispute resolution proceeding is commenced that involves, arises out of, or relates to the Agreement, or the breach thereof, then the prevailing party shall be entitled to an award of taxable court costs, other related but non-taxable costs and expenses, and reasonable attorneys’ fees, from the time the proceeding was commenced until all appeals, if any, are final. The prevailing party shall mean the party who recovers at least 51% of its total claims or who is required to pay no more than 50.9% of the other party’s total claims int eh lawsuit or arbitration.

23.    MISCELLANEOUS.

( a ) Vendor shall be properly authorized to business in the state where the Project is located. All Goods shall be in accordance with all applicable local, state and federal laws, codes and ordinances.

( b ) In the event any liens should be filed against the property where the Project is located (the “Property”) by any sub-subcontractors or material suppliers of Vendor (at any tier) in connection with labor or services performed under the Agreement or the materials, goods, equipment and/or supplies incorporated into or delivered to the Property, Vendor shall indemnify and hold the Contractor and Owner harmless against all such liens and suits or other proceedings pertaining thereto including any and all costs and attorneys’ fees, at both the trial and appellate level. If any such liens are filed then Vendor must immediately transfer such lien, and in no event no later than five ( 5 ) business days after the filing of the lien, by ( 1 ) depositing in the office of the Clerk of the Circuit Court an amount sufficient to transfer said lien; ( 2 ) by filing with the Clerk’s office a bond executed by a surety licensed to do business in the State of Texas and in accordance applicable law; or ( 3 ) otherwise discharge such lien. Should Vendor fail to discharge such lien, the Contractor may, at its option, do so and deduct the amount expended, including all costs, damages, and attorney’s fees incurred from any payment then due Vendor.

( c ) Any lien or security interest of Vendor and/or its sub-subcontractors and suppliers, whether now or hereafter existing in connection with any work performed or amounts due under the Agreement, on the property of the Project which Vendor may have at now or at any time hereafter as security for any amounts due under the Agreement, including a Mechanic’s Lien and security interest created by or under Chapter 53 of the Texas Property Code or the Texas Constitution, shall be subordinate to any lender(s) deed of trust who is engaged by Owner for purposes of obtaining financing for the Project notwithstanding the date, order or method of attachment or perfection of any such Mechanic’s Lien or security interest of Vendor and/or its sub-subcontractors and suppliers, or the provisions of any applicable law. Vendor is required to include this provision in all of its subcontracts entered into relating to any work to be performed for any project located in Texas.

( d ) To the extent applicable, Vendor shall promptly submit shop drawings and samples required by the Contract Documents efficiently, expeditiously, and in a manner that will not cause delay in the progress of the work of the Contractor or other subcontractors. By providing submittals, the Vendor represents to the Contractor that the Vendor has ( 1 ) reviewed and approved them; ( 2 ) determined and verified materials and measurements, or will do so; and ( 3 ) checked and coordinated the information contained within such submittals with the requirements of the Goods and of the Contract Documents. The approval by the Contractor, Owner, or Architect of any submittals of the Vendor shall not relieve Vendor of liability for any deviations from the Contract Documents.

( e ) When delivering the Goods to the Project, the Vendor shall take all necessary safety precautions and to the extent applicable, shall comply with Contractor’s safety policies and regulations and with all applicable laws, codes, ordinances, rules, regulations and orders of any public authority for the safety of persons or property.

( f ) Vendor shall comply with Resia’s Quality Control Plan in all respects as it relates to the Goods. Resia’s Quality Control Plan is hereby incorporated by reference and made available to Vendor upon request. Such Quality Control Plan may be updated from time to time by Contractor. Vendor’s compliance and cooperation with the Quality Control Plan is a material term of the Agreement and essential to the successful completion of the Project. Vendor acknowledges receipt of Resia’s Quality Control Plan and agrees to be bound by its terms.

( g ) Documents prepared by the Architect and the Architect’s consultants are instruments of service for use solely with respect to this Project and Architect, its consultants and/or the Owner as may be applicable, shall retain all common law, statutory, and other reserved rights, including copyrights.