TERMS OF AGREEMENT. The acceptance of the Offer set forth on this Purchase Order is expressly conditioned upon these Terms and Conditions, which shall be the only terms and conditions applicable to any agreement between Seller and National Design Build Services LLC (“NDBS”). Delivery of goods by Seller, commencement of work by Seller (if Seller is supplying goods only, for purposes of this Purchase Order “work” shall be deemed to be supplying of Seller’s goods or materials), or issuance of an Acknowledgement of Purchase Order by Seller to NDBS, notwithstanding any terms additional to or different from those contained herein, shall be deemed to be an acceptance of these Terms and Conditions by Seller. The terms and conditions of this Purchase Order contain the entire and integrated agreement between the parties. All prior proposals, negotiations, representations, recommendations, statements or agreements made or entered into prior to or contemporaneously with this Purchase Order, whether oral or in writing, are superseded by this Purchase Order. Any terms contained in any communication from Seller which are inconsistent with this Offer shall not be binding upon NDBS and are hereby rejected.
WARRANTY. Seller warrants that all materials furnished and all work performed by or on behalf of Seller will be of good quality, new, free from defects and will fully conform to the requirements of NDBS’s contract with its customer (which contract is incorporated herein by reference), the plans and specifications applicable to the work, and any change orders issued by NDBS. With respect to all aspects of the work and Seller’s responsibilities on the Project, Seller agrees to be bound to NDBS in the same manner and to the same extent as NDBS is bound to its customer. Seller further warrants that its materials are merchantable and that its work is fit for the purpose for which NDBS has purchased it. This warranty is for a period not less than one year from the date NDBS’s entire work is completed and accepted by NDBS’s customer.
SCHEDULE AND DELIVERIES. Seller shall begin and complete its work and deliver all materials in the sequence and within the time necessary to permit completion of NDBS’s work and the overall Project in accordance with the terms of NDBS’s agreement with its customer and in accordance with any specific terms set forth on the Purchase Order. Time is of the essence. Seller shall notify NDBS at least two (2) business days prior to any deliveries. Unless otherwise stated on the face of this Purchase Order, Seller shall be responsible for unloading and properly storing all goods and materials upon delivery in such location(s) as may be directed by NDBS.
CHANGES. All modifications or changes to the Purchase Order, including any changes to these Terms and Conditions, must be in writing and signed by an officer of NDBS to be binding upon NDBS.
PAYMENT TERMS. No payments are due Seller unless and until NDBS has received payment for Seller’s work. NDBS’s receipt of payment from NDBS’s customer is a condition precedent to NDBS’s duty to pay Seller. Seller bears the risk of non-payment from NDBS’s customer. Seller’s invoices shall be accompanied by a copy of this Purchase Order and lien waivers executed by Seller and all of Seller’s subcontractors and suppliers. NDBS shall not be obligated to pay any Invoice that is received in excess of sixty (60) days after completion of Seller’s work. NDBS shall not be responsible for payment of any amount in excess of the amount shown on this Purchase Order, regardless of whether the excess is for extra or additional work, taxes, freight, storage or delivery charges. Acceptance of final payment shall constitute a release by Seller in favor of NDBS of all claims arising out of or related to Seller’s work. No payment to Seller shall operate as an acceptance of defective workmanship or materials. Seller’s indemnity, warranty and other continuing contract obligations shall survive completion of the work and final payment.
NDBS’S RIGHT TO WITHHOLD PAYMENT. Payment to Seller may be withheld, in whole or in part, by NDBS on account of: (i) defective or improper materials, equipment, services or work; (ii) claims or liens, or any notice thereof; (iii) breach by Seller of any provision of this Purchase Order or obligation of law as respects the work; (iv) a reasonable doubt that all of Seller’s subcontractors and suppliers have been paid for work performed; (v) a reasonable doubt that Seller, for any reason, will timely and properly complete the Work; (vi) any kind of debt whatsoever owed by Seller to NDBS, whether arising out of this Purchase Order or otherwise; or (vii) unresolved or incomplete warranty work or service order work on this Project or any other project.
INDEMNITY. Seller agrees to indemnify, defend and hold NDBS, its affiliates, parents, subsidiaries, agents, representatives, officers, directors and employees harmless from any and all claims, demands, suits, damages, costs, and expenses, of any kind or nature whatsoever, arising out of or resulting from performance of Seller’s work; including, but not limited to, claims arising out of injuries to persons (including death resulting therefrom) and damages to property and property rights, including NDBS’s property and property rights, whether arising before or after completion of the Project for which Seller’s work was performed.
RIGHT OF TERMINATION. NDBS may, at its sole option, terminate this Purchase Order for convenience by giving Seller written notice stating the effective date of termination. In such event, NDBS will pay Seller for the work performed up to the date of termination. NDBS shall not be liable to Seller for any other costs, damages or losses (including, but not limited to, re-stocking or handling charges) nor for lost profits on work not performed. Any default termination of Seller by NDBS which is subsequently determined to have been without just cause shall be treated as a termination for convenience.
INSURANCE. Seller shall purchase and maintain in full force and effect during the performance of its work policies of insurance providing the coverages set forth below. All such policies shall: (i) be in such form and issued by such company or companies satisfactory to NDBS; (ii) provide that NDBS, its customer and their respective affiliates and subsidiaries are additional insureds; (iii) provide that the insurance coverage shall not be materially altered or canceled unless thirty (30) days prior written notice is sent to NDBS by certified or registered mail; (iv) expressly waive any and all rights of subrogation against NDBS and NDBS’s customer; (v) contain an endorsement to the effect that the additional insureds shall have primary coverage under the policy or policies furnished under this Purchase Order, and that other insurance available to the additional insureds shall be excess coverage. Prior to commencement of the work, Seller shall secure and deliver to NDBS certificates of insurance evidencing the required insurance coverages. Receipt of said certificates of insurance is a condition precedent to any payment obligation of NDBS to Seller. The minimum required coverages are:
(i) Worker’s compensation and employer’s liability insurance according to applicable statutory requirements, with a broad form all-states endorsement.
(ii) Comprehensive general liability insurance, including coverage for: contractual liability (including the contractual liability assumed under this Purchase Order), bodily and personal injury liability, broad form property damage liability, independent Seller’s coverage, and products liability and completed operations coverage for at least two (2) years after completion of each home. The minimum coverage amounts are as follows: bodily injury limits of One Million Dollars ($1,000,000.00) per person, One Million Dollars ($1,000,000.00) per occurrence, and property damage limits of One Million Dollars ($1,000,000.00) per occurrence, One Million Dollars ($1,000,000.00) aggregate, and a combined single limit for bodily injury and property damage of One Million Dollars ($1,000,000.00).
(iii) Business Auto Policy insurance covering owned, non-owned and hired vehicles with a minimum coverage amount for bodily injury and property damage of One Million Dollars ($1,000,000.00) per occurrence, and One Million Dollars ($1,000,000.00) aggregate.
TAXES. All taxes, including but not limited to “Sales”, “use”, excise or similar taxes imposed on this sale or transaction are included in the quoted price. Seller agrees to indemnify NDBS against any liability arising out of Seller’s failure to pay all applicable taxes.
RISK OF LOSS. Seller shall be responsible for and shall bear all risk of loss or damage to the work and all materials, appliances, supplies and equipment to be incorporated in such work, wherever stored or located, until NDBS’s final payment to Seller, unless such loss or damage results from the direct and sole negligence of NDBS. In carrying out the work, Seller shall take all necessary precautions to properly protect the work of other trades from damage caused by Seller’s operations.
LAWS. Seller shall give notices and comply with all applicable laws, ordinances, codes, rules, regulations and lawful orders of public authorities bearing on the performance of the work; including, but not limited to, applicable building codes. Seller shall bear all risks and costs associated with changes in applicable laws, rules, codes and regulations bearing on the work. The validity, interpretation and performance of this Subcontract shall be governed by the laws of the State of Missouri, including its statutes of limitation, without regard to conflicts of laws principles.
SAFETY. Seller shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the work.
DISPUTES. Upon the request of NDBS, Seller agrees to utilize, participate in, and be bound by any dispute resolution procedures that NDBS is obligated to participate in pursuant to its contract with its customer. Otherwise, the parties hereby agree that any controversy or claim arising out of or relating to this Purchase Order, or the alleged breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon any award may be entered in any court having jurisdiction thereof. The locale for the arbitration shall be St. Louis, Missouri and Seller hereby consents to the jurisdiction of said forum. The parties shall be entitled to use all methods of discovery available under the Federal Rules of Civil Procedure, except that they shall be entitled to take no more than three depositions (one of which may be a deposition pursuant to Rule 30(b)(6)). Seller further consents to the jurisdiction of the Circuit Court of St. Louis County, Missouri for purposes of enforcing this agreement to arbitrate, enforcing the discovery provisions, and confirmation of any arbitration award.
ATTORNEY’S FEES. In the event of any dispute, claim, or litigation arising out of or relating to this Purchase Order, the prevailing party shall be awarded its attorney’s fees, expert witness fees, expenses, arbitration costs and expenses, and/or court costs; including costs and fees related to collection efforts. Determination of which party prevailed shall be made by the arbitrator or judge. The determination shall be made by reviewing the claims resolved at the dispute resolution proceeding (which excludes any claims resolved prior to the taking of evidence), and then determining which party achieved the greater success by quantifying the amounts awarded the party recovering damages or obtaining relief and comparing that result to the relief and/or damages requested by that party at the dispute resolution proceeding. If that party received less than 50% of the relief and/or damages it sought, then the other party prevailed. If that party receives more than 50% of the relief and/or damages it sought, then it prevailed. The arbitrator or judge may consider the percentage of recovery when determining the amount of fees and expenses to be awarded to the prevailing party. If more than one claim is presented, then the arbitrator or judge may elect to evaluate who is the prevailing party on a claim by claim basis, or in the aggregate as they deem appropriate. In making the determination of which party prevailed, the arbitrator or judge shall take into consideration any settlement offers or demands made prior to trial.
LIMITATION OF LIABILITY/DAMAGES. NDBS shall not be liable to Seller for any consequential, indirect, special or incidental damages of any nature whatsoever, whether such damages are based in contract or in tort. NDBS shall not be liable to Seller for any damages, expenses, liabilities or costs arising out of or related to any delay in the work (even if said delay is the responsibility of NDBS); including, but not limited to, claims or damages attributable to wage rate increases, material cost escalation, storage costs, job site or home office overhead costs, impaired bonding capacity, loss of bidding opportunities and/or additional financing costs.
BINDING EFFECT/NO THIRD-PARTY RIGHTS. This agreement is binding upon the heirs, successors and assigns of the parties hereto and may not be assigned by either party without the prior written consent of the other party. Nothing in this Agreement is intended to create any enforceable third-party rights against NDBS or Seller.