Terms and Conditions of Purchase
Commencing performance or making deliveries or any acknowledgement of the Purchase Order by Vendor shall constitute an acceptance of these terms and conditions by Vendor. Mark III Construction, Inc. (Mark III) is to be bound only be the terms and conditions of the Purchase Order and these terms and conditions notwithstanding any proposals, terms or conditions additional to or different from those accompanying Vendor’s performance or acknowledgement. All terms and conditions of Mark III’s contract with the General Contractor or Owner applicable to Vendor’s performance hereunder, and all plans and specifications and applicable legal requirements of the Project applicable to the materials and/or equipment to be furnished or actually furnished hereunder, are incorporated herein by reference.
Acceptance of Order
Based on the provided written and/or oral quote, the Vendor shall provide goods and/or services by or before the required date of delivery as stated in the Purchase Order. If no specific date(s) are expressed in the Purchase Order, then Vendor shall provide the goods and/or services based on the date(s) subsequently provided by Mark III. Any extended lead times, applicable inbound freight charges, or back orders shall be explained at the time of quote. Material and/or services not provided within the predetermined time frame, or incorrectly shipped material will be subject to rejection by Mark III; any rejected material will not be paid for by Mark III. Any additional, different, or incorrect items not specifically identified on the Purchase Order shall be considered to be at the Vendor’s risk and returned or corrected by the Vendor at no additional cost to Mark III.
Ordering of Material
All orders must have a Purchase Order Number. Purchase Order Numbers will be issued by an authorized Mark III Purchasing Department representative. All other employees of Mark III, including Field Personnel, are not authorized to place orders, issue PO numbers, or add to existing orders without specific written direction by the Mark III Purchasing Department.
After the requisition is received and the order is placed, an Order of Acknowledgement is to be emailed to PO issuer within two (2) business days of receipt of order. In the subject line please include the Mark III provided PO number.
Delivery of Materials
Time is of the essence in the performance of Vendor’s obligations hereunder. Delivery shall be direct to the requested delivery location as designated by the Mark III Project Manager or other authorized Mark III representative. Delivery shall include, as applicable, offloading to the designated work area within the jobsite, as determined by the materials and logistics plan. Deliveries will be accepted only during normal working hours. Deliveries shall be F.O.B. destination. Transportation costs including cost of freight, shipping, fuel, customs, duties, demurrage, tariffs, taxes and handling will be prepaid by the Vendor on all shipments. Any provision for delivery of products or materials by installment shall not be construed as making the obligations of the Vendor severable. Mark III must be given a two (2) business days’ notice prior to any job site delivery, and for any items that are in excess of seventy-five (75) pounds or cannot be unloaded by hand. If a two (2) business days’ notice is not given, labor and demurrage charges will be assessed against the Vendor. For all notifications, call the applicable Mark III Project Manager. The two (2) business days’ notice MUST be received or delivery may be rejected on the site; Mark III will not be responsible for any additional re-delivery charges.
Should delivery for any reason fail to be timely, Vendor shall be liable for all damages suffered by Mark III as a result of such failure, including, without limitation, any liquidated damages assessed against Mark III. In no event shall Vendor be entitled to an extension beyond that allowed to Mark III under the terms of Mark III’s contract with the General Contractor or Owner. No extension of time shall be granted unless Vendor has provided written notice and a request for extension within two (2) business days of the event giving rise to the request. To the extent that Vendor is delayed by any event or reason in its performance it shall provide prompt written notice within two business days to Mark III of all details known, and update the same, so that Mark III can be aware of the occurrence of the issue(s) and take steps to minimize or mitigate the impact and/or to advise others of the same in order to preserve rights. Failure of Vendor to strictly comply with these requirements may result in a waiver of the Vendor’s rights to recover any increased costs or damages, especially where Mark III was damaged and/or denied the right to obtain relief or damages from others as a result.
Detailed inspections of materials may occur after receipt of materials. Mark III reserves the right to return damaged or incorrect shipments at the Vendor’s expense. Vendor agrees to promptly provide a credit for damaged or otherwise erroneous shipments and to expedite the delivery of replacement product at their expense, in accordance with the terms of Mark III’s contract with the General Contractor or Owner.
If discrepancies with materials or quantities are found during off loading or inventory operation, a replacement shipment shall be delivered within a reasonable amount of time. Any freight charges to return material will be subject to negotiation between Mark III and the Vendor prior to the return.
Notwithstanding the terms of shipment, the risk of loss shall pass to Mark III only after delivery to the job site or other place designated in writing by Mark III, and inspection and acceptance of the materials and/or equipment.
Cancellation or Change of Purchase Order
Changes will be binding on Mark III only if in writing and signed by an authorized representative of Mark III. Mark III, for its convenience may by written change order make any change, including, without limitation, additions or deductions in quantities ordered, changes in the specifications or drawings, changes in the time of delivery, or termination. Mark III may cancel or suspend at its convenience all or any portion of the Purchase Order at any time prior to the shipment of goods, and shall not be subject to charges or fees that may incur from said cancellation, and the Purchase Order shall be adjusted accordingly. Mark III will not pay restocking fees for inventoried items in resalable condition that are returned to the Vendor within 30 days of receipt of material. Material that is custom made, factory direct, or purchased by way of a third-party supplier shall be dealt with on an individual basis, depending on the status of the order at time of cancellation. Invoices shall reflect the written quote provided at the time of the bid; additional charges and fees are subject to dispute by Mark III, and may be short paid to avoid delinquency. No change, cancellation or suspension shall relieve Vendor of any of its obligations as to any materials and/or equipment shipped prior to Vendor’s receipt of the change, termination, or suspension order. Any claim for adjustment by Vendor hereunder must be asserted in writing within ten (10) days from the date the change or termination is ordered.
Inspection or Rejection of Order
Mark III shall have the right to inspect and test materials and/or equipment at Vendor’s plant any time prior to shipment and to conduct additional inspections at any time after arrival at the job site. The making or failure to make any inspection of, or payment for acceptance of, the materials and/or equipment shall not impair Mark III’s right to later reject nonconforming materials and/or equipment, or to avail itself of any other remedy to which Mark III may be entitled, notwithstanding Mark III’s knowledge of the nonconformity, its substantiality, or the ease of its discovery. Vendor shall be liable for all inspection, reshipment, and return costs of nonconforming materials and/or equipment. Vendor will be responsible to correct or replace material with defects within two (2) business days of notice of nonconformity or defect. Vendor will additionally be held responsible for latent defects or damages after the exchange of goods. Payment on account, if and of itself, does not constitute an approval or acceptance of the materials and/or equipment furnished, or any part thereof. No payment by Mark III under the Purchase Order shall be construed to be an acceptance by Mark III of defective or improper materials and/or equipment.
Vendor warrants to Mark III that it has fully and carefully reviewed the provisions, specifications, drawings, samples, or other descriptions contained or referenced in the Purchase Order and in Mark III’s Contract with General Contractor or Owner. Vendor warrants to Mark III that the materials and/or equipment shall be free from all defects, shall be of the quality specified, shall be fit and appropriate for the purpose intended and shall conform to the provisions, specifications, performance standards, drawings, samples or other descriptions contained or referenced herein or in Mark III’s Contract with General Contractor or Owner. Vendor further warrants that the materials and/or equipment will be complete in all respects necessary to make the materials and/or equipment fully functional if installed in accordance with the applicable drawings and specifications. All warranties implied by law or usage of trade are incorporated into these terms and conditions and shall apply to services and materials and/or equipment ordered. Vendor guarantees to Mark III that the materials and/or equipment rendered shall be free of any and all defects in workmanship. Vendor is to adhere to any manufacturer warranty and Vendor’s warranty shall in all respects meet the terms of the warranty requirements of Mark III’s Contract with General Contractor or Owner for the materials and/or equipment ordered. Vendor shall fix or replace any material that is damaged upon delivery to Mark III. Latent or patent defects will be corrected at the Vendor’s expense and will be picked up by the Vendor upon realization of the defect. Any defects must be corrected within originally quoted lead time of order. The materials and/or equipment are ordered by Mark III in reliance on each and all of the warranties and guarantees specified herein and implied by law or usage of trade. Mark III’s remedies pursuant to this paragraph are in addition to, and not a limitation on, all other remedies provided by law, including, without limitation, pursuant to California Code of Civil Procedure sections 337.1 and 337.15.
No assignment by Vendor of any right or obligation under this Purchase Order or interest in proceeds or any delegation of duty under a Release shall be made without the prior written consent of Mark III and any attempted assignment or delegation without Mark III’s prior written consent shall be void and shall constitute a material breach of this Agreement.
Billing and Payment
Mark III does not authorize material purchases without a valid PO number provided by a Mark III Purchasing Agent. Any invoice sent to Mark III without a valid PO number will be returned unpaid to the Vendor for correction. The price specified on the Purchase Order shall, unless otherwise expressly stated within the terms of the Purchase Order, include all taxes and duties of any kind levied by federal, state, municipal, or other governmental authorities, which either party is required to pay with respect to the reduction, sale, use or shipment of the materials, and/or equipment covered by the Purchase Order, and all charges for packing, loading, unloading, and shipping. If transportations costs are designated as part of the cost to Mark III, only actual transportation costs shall be included. Damage to goods not packed to ensure proper protection shall be charged to Vendor.
All invoices must include: (a) Date of delivery, (b) Mark III Purchase Order number, (c) the item number, (d) the item description, (e) the quantity, (f) project name, as provided by Mark III (g) unit price, (h) extended price and (i) applicable sales tax. There must be a separate invoice for each delivery. No allowance will be made for boxes, reels, Wemco’s, wood reels, drums or other returnable containers unless so stated in the Purchase Order and invoiced separately. Payment to Vendor is expressly subject to the Vendor’s strict compliance with all terms and conditions herein. As a condition precedent to and in exchange for payment, Vendor agrees to provide Mark III with fully executed waivers and releases pursuant to Civil Code sections 8132-8138. Mark III may withhold payment pending receipt of evidence, in such form and detail as Mark III may direct, of the absence of any liens, encumbrances and claims on materials, goods, equipment, services or labor provided under this Purchase Order or due to any breach of this Purchase Order by Vendor. Vendor’s right to payment is subject to the same payment provisions enforced upon Mark III by the terms of Mark III’s Contract with the General Contractor or Owner of the Project. If Owner, General Contractor, or other responsible party delays in making any payment to Mark III from which payment to Vendor is to be made, Mark III and its sureties shall have a reasonable time to make payment to Vendor. “Reasonable time” shall be determined according to the relevant circumstances, but in no event shall be less than the time Mark III, its sureties, and Vendor require to pursue to conclusion their legal remedies against Owner, General Contractor, or other responsible party to obtain payment, including (but not limited to) mechanics’ lien remedies. Vendor shall create job accounts for each job exceeding $2,000 worth of projected material purchases. Mark III will provide job information, including job site address for deliveries. All orders must be classified by a job account and should be tracked accordingly. Mark III will not place orders under a general shop or house account.
Payment terms shall be Net 60 days, or 2% – 20th Prox. Vendor acknowledges that in the conduct of Mark III’s business it is essential for Mark III to receive Vendor’s billing within 60 days in order to permit Mark III to receive payment from Owner and/or General Contractor and pass that payment on to Vendor. Vendor agrees that if Vendor fails to bill for any items within 60 days Vendor shall be deemed to have waived and released any right to receive payment. Invoices and packing slips will be electronically transmitted to Mark III at AP@mark-three.com . The discount period available to Mark III will commence on the later of the date the purchased materials are received, or the date an invoice is received by Mark III.
If Vendor fails to perform any of its obligations hereunder, Mark III shall be entitled to all remedies provided by law. If Vendor becomes insolvent or makes an assignment for the benefit of creditors, or files or becomes subject to receivership or reorganization or bankruptcy proceedings, or becomes involved in labor difficulties, which in Mark III’s opinion threaten Vendor’s ability to perform in a timely manner, or fails to make any delivery in a timely fashion or fails to comply with any provision of these terms and conditions or the Purchase Order and the failure is not corrected within two (2) business days of written request of Mark III, Mark III may, in addition to any other rights or remedies it may have hereunder or at law, terminate the Purchase Order upon written notice to Vendor; such termination shall be deemed a termination for default. Mark III’s failure to notify Vendor of a rejection of nonconforming materials and/or equipment or to specify with particularity the defect in nonconforming materials and/or equipment after rejection or acceptance thereof will not bar Mark III from pursuing any remedies for breach which it may otherwise have. In the event of a termination for default, Mark III, without prejudice to any other rights or remedies, shall have the right to any or all of the following remedies:(1) supply such quantity of proper and/or suitable materials, goods or equipment, services, and/or labor as Mark III deems necessary to satisfy the scope of this Purchase Order, and charge the costs thereof to Vendor, who shall be liable for the payment of same, including reasonable overhead, profit, and actual attorney fees incurred as a result of Vendor’s failure of performance; (2) contract with one or more additional suppliers to perform the remaining scope of the Purchase Order in the most expeditious manner, and charge the cost thereof to Vendor; and/or (3) withhold payment of any monies due Vendor pending corrective action to the extent required by and to the satisfaction of Mark III.
Vendor shall pay all royalties and licensing fees arising in connection with the sale or use of materials and/or equipment hereunder. Vendor further undertakes and agrees to defend, at Vendor’s expense, all suits, actions or proceedings in which Mark III, its successors, assigns, customers, or users of its customer’s products are made defendants for actual or alleged infringement of any U.S. or foreign letters patent, copyrights or trademarks, resulting from the use or purchase of any material and/or equipment furnished under the Purchase Order, and Vendor agrees to pay or discharge any and all judgments or decrees which may be rendered in any such suit, action or proceeding against such defendants therein.
Vendor’s performance shall in all ways strictly conform with all applicable laws, regulations, safety orders, labor agreements, and working conditions to which it is subject, including, but not limited to, all State, Federal, and local non-discrimination in employment provisions, and all applicable provisions required by Mark III’s contract with the General Contractor or Owner and all local regulations and building codes. Vendor shall execute and deliver all documents as may be required to effect or evidence compliance.
Vendor assumes all risk in furnishing the materials and/or equipment and/or services ordered and will, to the fullest extent permitted under the statutes and public policy of the State of California, indemnify, hold harmless, and defend Mark III and Owner and General Contractor against any and all losses, damages, liabilities and claims of any kind whatsoever, including actual attorneys’ fees and experts’ or consultants’ fees, which arise directly or indirectly out of the performance or nonperformance of the Purchase Order or these terms and conditions including, but not limited to, losses of any materials and/or equipment ordered by Mark III and injuries to property and to persons, including death. Vendor, however, shall not be obligated to indemnify Mark III, Owner or General Contractor for the sole negligence, active negligence, or willful misconduct of Mark III or Owner or General Contractor or their agents or employees or for defects in design furnished by Mark III or Owner or General Contractor or their agents or employees. The indemnity set forth in this paragraph shall not be limited by the insurance requirements of these terms and conditions. Such indemnity obligation includes, without limitation, each of the following: (a) claims of infringement or violation of any copyright, patent rights or similar rights; (b) claims of injury or damage to property or persons, including death; (c) claims based on acts or omissions by Vendor or any of Vendor’s officers, agents, employees, or servants; (d) claims arising from defects, actual or alleged, in materials or equipment, production or services furnished or supplied by Vendor; and (e) any liens, stop notices or bond claims asserted by anyone claiming the right to payment for work, labor, equipment or materials supplied to or at the request of Mark III. In fulfilling these requirements, Vendor shall advise Mark III of the identity of counsel selected to defend Mark III’s interests and Mark III shall have the right to reasonably object, and if this provision is triggered, Vendor shall retain replacement counsel acceptable to Mark III.
Applicable Law – Definitions
The definitions and terms used, interpretation of these terms and conditions, and the rights of all parties hereunder, shall be construed under and governed by the laws of the State of California. Whenever Mark III is not the ultimate consumer of the materials, all rights, benefits, and remedies conferred upon Mark III hereunder shall accrue and be available to and are for the express benefit of any successors in interest to the materials, including the ultimate consumer of the materials.
Any disputes between Mark III and Vendor involving the Owner and/or General Contractor shall be governed by the dispute resolution provisions of Mark III’s Contract with General Contractor or Owner. Disputes between Mark III and Vendor that involve other third parties shall be governed, at the sole option of Mark III, by the dispute resolution provisions applicable to the dispute between Mark III and such other third parties. Disputes not involving the Owner, General Contractor or another third party will first be subject to informal attempts at resolution by senior managers of Vendor and Mark III who are not personally involved in the underlying dispute but having full authority to resolve the matter, followed by mediation under the Construction Industry Mediation Rules of the American Arbitration Association before recourse to arbitration or litigation. Any such disputes not so resolved shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect. The location for any mediation, arbitration or litigation for any claims or disputes solely between Mark III and Vendor shall be the county in which the Project is located. The existence of a dispute between Mark III and Vendor, not involving a material default by Mark III in the performance of a condition precedent to Vendor’s performance, shall not relieve Vendor of its obligation to perform under this Purchase Order. The prevailing party in any dispute arising out of or relating to this Purchase Order or its breach that is resolved by arbitration or litigation shall be entitled to recover from the other party reasonable attorney’s fees, expert witness fees, consultant fees, costs and expenses, whether or not recoverable by law, incurred by the prevailing party in connection with such arbitration or litigation.
Failure of Mark III to insist upon performance of any term(s) of this Purchase Order, or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition, or the future exercise of any such right.
If Vendor or its employees or agents come onto Mark III’s premises or the Project in connection with the Purchase Order, Vendor agrees to carry (i) Comprehensive General Liability Insurance covering personal injuries (including death) in the amount of $1,000,000.00 per occurrence/$3,000,000.00 annual aggregate, and (ii) automobile liability insurance covering bodily injuries (including death) and property damage with a $1,000,000.00 combined single limit of liability. Vendor further agrees to provide and maintain Workers’ Compensation Insurance in conformity with the laws of the state in which such premises or Project is located and Employer’s Liability Insurance in the amount of $1,000,000.00 per occurrence. If requested by Mark III, Vendor shall submit written proof of such insurance to Mark III prior to entrance on Mark III’s premises or the Project. If Mark III’s contract with the General Contractor or Owner requires additional types of insurance or higher limits, Vendor shall comply with those requirements. Vendor shall supply such bonds as are required by law.