TERMS AND CONDITIONS OF PURCHASE
This Terms and Conditions of Purchase, (“Contract”) is entered into by and between EPCON® Industrial Systems, LP, (“EPCON”) and the Vendor (“SELLER”).
SELLER agrees to sell and deliver the goods or services specified in EPCON’S Purchase Order, (“PO”) in accordance with the Contract which constitutes the entire agreement of the parties and supersedes all previous and contemporaneous understandings and communications between the parties with respect to the subject matter hereof. The Contract shall not be affected by, or interpreted with reference to any prior course of dealings between the parties. EPCON expressly limits acceptance to the terms of the PO and Contract and any other terms, are rejected unless expressly agreed to in writing by EPCON. It is understood and agreed that acceptance by SELLER of the PO or commencement of any work and/or service hereunder by SELLER shall constitute acceptance by SELLER of this Contract. The Work, (“Work”) means all or part of the services required by the Contract, whether completed or partially completed, and includes all labor, materials, equipment, supplies, fees, permits, inspections and services provided or to be provided by the SELLER to fulfill its obligations under the Contract.
SHIPMENT AND DELIVERY
Delivery will be FOB Destination and must be affected on the delivery date as specified in EPCON’S PO. SELLER’S failure to meet any delivery date(s) without EPCON’s prior written consent may constitute a breach of contract or default hereunder, at EPCON’s sole discretion. All Work shall be properly secured, packed, marked and shipped, (collectively herein after referred to as “Secured”) in accordance with the requirements of the transporting carrier and EPCON’S instructions. SELLER shall be liable to EPCON for all expenses incurred by EPCON as a result of improperly secured and/or delayed delivery. No charge will be allowed for crating, boxing or shipping unless stated on the PO. SELLER permits EPCON to withhold that portion of any payment due to SELLER related to the improperly secured and/or delayed delivery.
With respect to any purchases covered by EPCON’S Resale Exemption Certificate, SELLER shall not include, or be reimbursed for any sales or use taxes. EPCON will provide a copy of their Resale Exemption Certificate upon request.
CANCELLATION AND TERMINATION
EPCON has the right at any time, without cause, to cancel any part or this entire Contract by written notice, at which point EPCON will have the right to take possession of the Work whose purchase price was paid by EPCON.
In the event of SELLER’S breach of or default under any provision of this Contract and failure to cure such breach or default within ten, (10) days after notice from EPCON or in the evidence of financial or organizational instability, such as bankruptcy, reorganization, receivership, insolvency, or making an assignment for the benefit of creditors, EPCON has the right, to immediately terminate this Contract for cause or default by written notice to SELLER. Upon termination for default or cause by EPCON, SELLER shall be liable and will immediately reimburse EPCON for all costs incurred by EPCON to effect completion of this Contract according to the Backcharges Section. EPCON shall be under no obligation to compensate SELLER if the Contract is terminated for default or cause.
EPCON may at any time, by written order make changes, additions and/or subtractions to the specifications, instructions, method of shipment, packing, and/or place of deliver, and the PO will be amended by such change order.
In the event the Work is found to be defective as to SELLER’S workmanship or materials, or not in conformance with the PO. EPCON shall proceed to accomplish the corrective work by the most expeditious means available and backcharge the cost of such corrective work to SELLER. Backcharges shall be computed for EPCON’S engineering and EPCON’S subcontractors at cost, for labor and materials plus a 60% mark up to cover EPCON’S overhead and supervision.
SELLER WARRANTS THAT THE WORK WILL; i). BE FREE FROM DEFECTS IN MATERIALS, PERFORMANCE, OPERATION, AND WORKMANSHIP FOR A PERIOD OF TWELVE, (12) MONTHS AFTER BEING PLACED IN SERVICE BY EPCON, OR EIGHTEEN, (18) MONTHS FROM DATE OF ACCEPTANCE BY EPCON, WHICHEVER PERIOD EXPIRES EARLIER. In the event SELLER is not the manufacturer of the goods, SELLER will assume the responsibility of the warranty. If required by EPCON, SELLER will supply satisfactory evidence of the origin, composition, manufacture, kind and quality of the goods, ii). Strictly conform to the drawings, specifications, and PO, iii). Be merchantable and fit and sufficient for the purpose(s) intended, iv). Conform to EPCON site requirements communicated to SELLER, v). Utilize generally accepted industry practices in performance of the services, vi). Perform all services in a workmanlike manner and vii). SELLER warrants that on delivery EPCON will receive good title to the goods and services, free and clear of all liens and encumbrances.
During the warranty period, and at EPCON’S request SELLER shall repair, at SELLER’S expense any defects in the Work, and shall further pay for damage to EPCON’s or their customer’s property resulting from such defect or items damaged due to repair work. Whenever SELLER fails to repair or remedy a defect of the Work and damages, EPCON shall make such repairs and remedies and shall be entitled to immediate reimbursement according to the Backcharges Section herein.
SELLER acknowledges, certain proprietary and confidential information may be disclosed, communicated, or otherwise observed by the SELLER, all of which constitute trade secrets of EPCON or their affiliates including, without limitation, information and data of a technical, engineering, business or commercial nature regarding EPCON and its clients, (hereinafter collectively called (“Confidential Information”). All Confidential Information provided by EPCON hereunder will be kept secret and confidential by SELLER, their agents and/or employees and will not be disclosed to any third party. The SELLER shall not, without the prior written consent of EPCON, disclose, divulge, disseminate, reproduce, publish or otherwise use any of the Confidential Information for any purpose except to the extent necessary in connection with the contractual arrangements with EPCON.
PATENTS, INDUSTRIAL DESIGNS AND COPYRIGHTS
By accepting this order or performing under it, SELLER, agrees not to assert any claim against EPCON under the Patent Act, Copyright Act, Industrial Design Act or any sale of goods, statutes or otherwise, including any hold harmless or similar claim related in any way to any claim asserted against SELLER or EPCON for patent or copyright infringement or the like arising out of performance under this Contract, including infringement arising out of compliance with specifications furnished by EPCON. SELLER hereby assigns to EPCON all right, title and interest in and into copyright and any copyrightable material created or produced for EPCON under this Contract.
INDEMNITY & INSURANCE
SELLER AGREES TO INDEMNITY, DEFEND AND HOLD EPCON HARMLESS AGAINST ALL LIABILITIES, CLAIMS OR DEMANDS FOR INJURIES OR DAMAGES TO ANY PERSONS OF PROPERTY ARISING IN WHOLE OF IN PART OUT OF THE PERFORMANCE OF THIS CONTRACT OR OUT OF THE USE OF THE EQUIPMENT OR GOODS FURNISHED, INCLUDING PRODUCT LIABILITY CLAIMS. SELLER WARRANTS AND REPRESENTS THAT IT MAINTAINS AND WILL MAINTAIN COMMERCIAL GENERAL LIABILITY INSURANCE, INCLUDING PRODUCT LIABILITY INSURANCE AND AGREES TO PROVIDE CERTIFICATES EVIDENCING SUCH COVERAGE ON REQUEST OF EPCON.
SELLER AGREES TO DEFEND AND HOLD HARMLESS EPCON, ITS SUCCESSORS AND CUSTOMERS AGAINST ALL SUITS AND FROM ALL DAMAGES ARISING OUT OF SUITS OR CLAIMS FOR ACTUAL OR ALLEGED DIRECT OR CONTRIBUTORY INFRINGEMENT OF, OR INDUCEMENT TO INFRINGE, ANY PATENT, INDUSTRIAL DESIGN OR COPYRIGHT BY REASON OF THE MANUFACTURE, USE OR SALE OF THE GOODS AND/OR SERVICES ORDERED, INCLUDING INFRINGEMENT ARISING OUT OF COMPLIANCE WITH SPECIFICATIONS FURNISHED BY EPCON;
COMPLIANCE WITH LAWS AND GOVERNING LAW
SELLER shall comply with all laws, rules, regulations and ordinances applicable to this transaction, including but not limited to all environmental, labor, safety, and health laws, rules, regulations, ordinances and applicable industry codes. This Contract is entered into and will be governed, interpreted, construed, performed and enforced in accordance with the laws of the State of Texas, venue, Montgomery County, Texas.
Payments of invoices will not constitute acceptance of the Work and will be subject to adjustment for shortages, defects, or other failures of SELLER to meet the requirements of this Contract. EPCON may withhold payment based on back charges as determined by EPCON in its sole discretion. Acceptance of the Work will not remove SELLER’S responsibility for latent defects or remove SELLER’S responsibility for warranties.
RELEASE AGAINST LIENS AND CLAIMS
SELLER shall promptly pay all claims of persons or firms furnishing labor, equipment, or materials used in providing the Work. EPCON may require SELLER to submit satisfactory evidence of payment and releases of all such claims. If any lien or claim should arise or be discovered after payment has been made in full, SELLER shall reimburse EPCON for any amount paid to discharge such lien or claims and expenses, including attorney fees, incurred in obtaining such discharge. SELLER shall indemnify and defend EPCON against any liability or loss arising from any such claim.
In order to assure EPCON of the prompt and unrestricted use of the products for which the Work under the PO is procured to the extent permitted by law, SELLER waives any and all liens, which it might otherwise assert in the resolution of disputes arising out of the performance of this PO. This waiver is not intended to be, nor will it be construed to be, a limitation of any of SELLER’S other rights under the PO.