Standard Terms & Conditions - Acuity
STANDARD TERMS OF THE EARTH SAVERS ENERGY SERVICES INC., PURCHASE ORDER (“STANDARD TERMS”)
1. Terms; Acceptance; Notices to Buyer. These Standard Terms, together with the Purchase Order attached hereto, are collectively referred to as this “PO”. As used in this PO, the term “Buyer” means both Earth Savers Energy Services Inc., a California corporation (“ES”) and ES’s authorized delegate Rare Earth Supply, LLC, an Arizona limited liability company (“RE”), for all purposes hereunder except to the extent ES specifically provides otherwise in writing. “Seller” means both Acuity Brands Inc, and Performance Lighting Systems Inc., individually and collectively, jointly and severally. Acceptance by Seller is limited to acceptance of the express terms and conditions of this PO. Without ES’s express written consent, no variation in, or addition to, any description, quantity, price, or to any other phrase, sentence, clause or other provision (irrespective of the wording of Seller’s acceptance) shall become part of this PO. The arranging for the shipment or delivery of any goods authorized by this PO to either ES or RE shall constitute the agreement of Acuity Brands Inc., and Performance Lighting Systems Inc., jointly and severally, to accept and agree to be bound by the terms and conditions of the entire PO. If any of the provisions of Seller’s proposal, sales contract or other writing are in conflict with the terms of this PO, the terms of this PO shall govern. Notices to ES or RE shall be effective when received by ES or RE, as applicable, at the address shown in the face of this PO. Electronic notice to ES shall be effective if received by ES at firstname.lastname@example.org. The burden of proving delivery to Buyer shall be on the Seller.
2. Time and Place of Delivery; Buyer’s Inspection; Acceptance; Risk of Loss. Time is of the essence of this PO. Delivery will be made as specified on the face of this PO. Buyer reserves the right to reject goods and cancel all or any portion of this PO in the event of failure to deliver at the time and place specified. Buyer’s acceptance of any part of a shipment not delivered as specified herein shall not obligate Buyer to accept the remainder of that shipment or any future shipments. All goods shall be received subject to Buyer’s inspection and acceptance, and subject to Buyer’s right to reject and return at Seller’s expense, goods which fail to conform strictly to the requirements of this PO. In all events, risk of loss prior to acceptance of the goods by Buyer shall remain with Seller irrespective of the provisions of this PO for shipment of the goods.
3. Price; Terms of Payment; Invoices; Lien Waivers. Seller’s prices as set forth on the PO cover page are fixed, and not subject to change as to the quantities
specified. Seller bears the risk of any price increases or delays resulting from any applicable foreign or domestic governmental regulation or order. Invoices shall be delivered to Buyer at the address shown in the face of the PO. Payment is subject Buyer’s prior receipt of the conditional waivers of liens and equivalent rights in form and substance required by the law of the state in which the jobsite is located, and otherwise completed to Buyer’s satisfaction, to evidence that receipt of payment will result in payment in full, and waiver of all liens, stop notices, bond claims, and other claims for payment, arising from the goods identified in the applicable invoice.
4. Seller’s Warranties. Seller warrants to Buyer and the Project Owner that the goods will: (a) strictly conform to the requirements of the specifications, drawings, samples and other written materials and descriptions, drawings as set forth in or referred to in this PO (b) be free from defects in design, material and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether expressly or reasonably implied; (d) not infringe upon any patent, trademark, or copyright; and (e) bear all warnings, labels and markings required by applicable laws and regulations. These warranties will survive acceptance and Buyer’s rights hereunder are in addition to any rights and remedies available to Buyer under this PO or applicable law.
5. Buyer’s Remedies. Failure of any of the goods to conform to any of the Seller’s warranties, express or implied, shall not be waived by acceptance of all or any part of the goods. Buyer retains the right to cancel any portion of the remaining order, to reject any portion of the goods delivered or revoke acceptance as to any portion of the goods accepted and return such goods to Seller and to recover the purchase prices, any excess costs of cover, and damages, including manufacturing costs, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by Buyer, all in addition to Buyer’s other remedies under this PO or applicable law. In the event of the insolvency of Seller or an assignment by Seller for the benefit of its creditors, Buyer shall have the right to cancel this PO immediately. Buyer shall also have the right to cancel this PO immediately if Buyer’s contract with the Project Owner or the prime contractor, as the case may be, for the project for which the materials under this PO are being supplied, is terminated or cancelled. Failure by Buyer to exercise any right or remedy provided herein or under applicable law shall not constitute a waiver and shall be without prejudice to the subsequent exercise by Buyer of any right or remedy. Buyer shall be entitled at all times to set-off any amount owing from Seller or any of its affiliates to Buyer, whether under this PO or otherwise, against any amounts otherwise payable to Seller.
6. Indemnification. Seller will, to the full extent permitted under applicable law, indemnify, defend and hold harmless Earth Savers Energy Services, ,Inc., Rare Earth Supply LLC, and their respective officers, directors, shareholders, members, managers, employees, agents and representatives from and against any demands, causes of action, liability, loss or expense (collectively, “Claims or Damages”) arising from or relating to; (a) Seller’s failure to comply with applicable laws, regulations or governmental orders in the supply of goods or performance under this PO, (b) violation or infringement of rights in any patent, copyright, proprietary information, trade secret or other property right caused or alleged to be caused by the use or sale of goods under this PO except in so far as such infringement is due to Seller having used or followed a design provided by or on behalf of Buyer, and (c) personal injury to, or illness, sickness or death of, persons (including employees of Buyer and Seller) or from damage to or loss of property resulting from the negligent acts or omissions of Seller or defects in the goods, regardless of whether or not the Claims or Damages were caused in part by the negligence or other fault of a party indemnified hereunder; provided, however, that Seller shall not be liable for Claims or Damages to the extent caused by the negligence of a person or entity otherwise entitled to indemnity hereunder. Seller’s indemnity obligation under this paragraph shall not be limited by applicable Worker’s Compensation laws, and, as respects this indemnity, Seller expressly waives all immunities and defenses it may have under such laws.
7. Compliance. All goods furnished pursuant to this PO shall be produced, sold, delivered, or rendered to Buyer in compliance with all applicable statutes, codes, ordinances, judicial and administrative decisions, rules, regulations and other laws.
8. Applicable Law. The validity, interpretation and enforcement of this PO will be governed by and construed in accordance with the laws of the State of Arizona, including its statutes and common law of contracts and tort, except the Arizona arbitration act, which does not apply. The application to this PO of: (i) the United Nations Convention on Contracts for the International Sale of Goods, (ii) the United Nations 1974 Convention on the Limitation Period in Contracts for the International Sale of Goods (the “1974 Convention”), and (iii) the Protocol Amending the 1974 Convention done at Vienna, Austria on April 11, 1980, are hereby expressly disclaimed. Notwithstanding the incorporation of a delivery term set forth in INCOTERMS®, to the extent that any other express term of this PO varies from such definition in INCOTERMS®, the express terms of this PO will govern.
9. Disputes; Severability. Each claim, controversy or other matter in dispute arising out of or related to this PO or with respect to any rights or obligations of Buyer or Seller (each a “Dispute”), will be resolved as follows: Except only for certain Disputes as provided below, the Dispute will be resolved by mediation followed by binding arbitration pursuant to and governed by the Federal Arbitration Act (Title 9 of the United States Code), in Pima County, Arizona, administered by the American Arbitration Association (“AAA”) in accordance with the then current version of the AAA’s current rules for commercial disputes. The arbitrator shall have authority to decide the arbitrability of any Dispute, the validity and enforceability of any sentence, clause, paragraph or other provision in this PO, including the validity and enforceability of any sentence, clause, paragraph or other provision of this arbitration clause or of any other portion of the PO. The arbitration and the arbitrator’s written decision shall be enforceable in accordance with the Federal Arbitration Act. The following are the only exception to the mandatory arbitration of Disputes: (a) Buyer shall have the right to require the Dispute be submitted to resolution by binding arbitration or civil action in any arbitration or civil action between Buyer and Project Owner, and Seller hereby consents to joinder in any such arbitration or civil action, if the Dispute between Buyer and Seller has an issue of law or fact in common with the subject matter of the issues to be resolved by the Buyer and Project Owner; (b) Buyer not be required to arbitrate a Dispute if a third party, whose participation Buyer considers necessary for just resolution of the dispute, cannot be joined as a party to the arbitration; and (c) Buyer shall not be required to arbitrate with Seller any third-party claim, cross-claim, counter claim or other claim or defense in any civil action that is commenced by a third-party not affiliated with Seller, directly or indirectly, and not obligated by contract to arbitrate disputes with Buyer. The prevailing party in any arbitration or civil action arising from any Dispute shall be awarded its reasonable fees and expenses incurred in the arbitration or civil action. One-percent (1%) of the sums to be paid to Seller under this PO is deemed separate and independent consideration for Buyer’s rights hereunder. Should any sentence, clause or provision in this paragraph or in any other part of this PO be determined unenforceable or invalid, the sentence, clause or provision shall, to the extent possible, be modified in such manner to be valid, legal and enforceable to be valid, legal and enforceable but so as most nearly to retain the intent of this PO; provided such determination shall not affect or interfere with the validity or enforceability of any other clause or provision or part thereof.
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