The following terms and conditions and those specified in this Purchase Order shall exclusively govern the purchase of all Products and Services covered by the Purchase Order.
1. GOVERNING PROVISIONS: The Purchase Order to which these Terms and Conditions are a part shall apply to all products and/or services purchased by Ameresco, as described in the Purchase Order, “Products” and/or “Services.” Ameresco objects to any additional or different terms contained in any other form or communication previously or hereafter provided by Seller to Ameresco. Seller shall be and act as an independent contractor (and not as the agent or representative of Ameresco) with regard to performance of the Services and represents that it is, and that at all times during performance of the Services it shall be, fully experienced and properly qualified, licensed, equipped, organized and financed to perform the Services. Seller shall perform the Services in a professional, workmanlike and skillful manner, using the same degree of skill and care as a like professional performing like services, utilizing only experienced and properly qualified persons to perform the Services.
2. PACKAGING AND PACKING: Seller shall properly package and pack the Products. Each container shall be clearly labeled to indicate the applicable Purchase Order number(s), Ameresco part numbers and quantities of Products. A packaging slip for each Purchase Order itemized by container shall accompany each delivery.
3. DELIVERY: TIME AND DATE OF DELIVERY ARE OF THE ESSENCE. Delivery shall be F.O.B. Destination. Ameresco may refuse delivery of Products made more than one week in advance of delivery schedule specified herein and may return such Products at Seller's expense. Seller shall notify Ameresco immediately when Seller has knowledge of any potential delay in delivery.
4. INSURANCE: Before Seller commences any work or services under this Purchase Order and during the term of this Purchase Order, Seller shall maintain insurance in the amount specified herein and shall furnish Purchaser with certificates of insurance in the amounts of General Liability - $1,000,000 per occurrence including premises/operation, products/completed operation, contractual, bodily injury (including death) and property damage; Auto Liability - $1,000,000 combined single limit (including MCS 90 endorsement); Pollution Liability - $1,000,000 ; Workman's Compensation: Statutory limits; Employer’s Liability - $1,000,000; Umbrella Liability $5,000,000. Professional Liability Insurance - in the minimum amount of $2,000,000 until completion and acceptance of performance hereunder. Seller shall furnish the Ameresco with such assurance and evidence of insurance required by this Section 4 as Ameresco may from time to time request. Insurance certificates, or copies of policies if requested, shall be furnished to Ameresco prior to commencing work under this Purchase Order, and thereafter, thirty (30) days prior to the expiration date of each such policy.
Seller shall secure, pay for, and maintain marine and air cargo insurance providing coverage for the value of goods at risk, necessary to protect the interests of Ameresco and Seller. Seller shall bear the risk of and be responsible for paying or reimbursing Ameresco for losses not covered by such marine and air cargo insurance, including uninsured losses and deductibles. Seller shall be responsible for meeting all terms and conditions of the policies including claims reporting, claims adjustments with carrier, and other provisions of the policies.
All insurance coverage shall be effective in the state or states in which the Services shall be performed and every insurance contract shall contain the following equivalent clause: "No reduction, cancellation or expiration of the policy shall become effective until thirty (30) days from the date written notice thereof is actually received by Ameresco." Upon receipt of any notice of reduction, cancellation or expiration, Seller shall immediately notify Ameresco.
Ameresco and project or site owner shall be named as an additional insured on each of these policies with the exception of Workman’s Compensation and Professional Liability.
The requirements of this Purchase Order as to insurance and acceptability to Ameresco of insurers and insurance to be maintained by Seller and its suppliers are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Seller under this Purchase Order.
5. PRICE: Prices specified in this Purchase Order shall remain fixed for all scheduled deliveries unless otherwise agreed in writing by both parties. Prices include all charges such as taxes, inspection packaging, and shipping posts unless separately listed on the face hereof.
6. TAXES: Unless otherwise directed, Seller shall pay all applicable sales and use taxes imposed by law upon or on account of this order. Where appropriate Ameresco will reimburse Seller for this expense.
7. PAYMENTS: Seller shall submit invoices only upon delivery of Products or completion of Services. Ameresco shall issue payment within 30 days of receipt of a correct invoice provided Seller has delivered conforming Products or satisfactorily completed Services. Ameresco may require Seller to submit waivers and releases of lien and certified payrolls to be included as part of a correct invoice Adjustments for payments made for rejected Products or Services or for any overpayments shall be deducted from subsequent payments due or, at Ameresco's option, promptly refunded by Seller upon request.
8. INSPECTION AND ACCEPTANCE: Seller shall inspect all Products prior to shipment to Ameresco. Products which fail to pass Ameresco's incoming acceptance test may be rejected by Ameresco and returned to Seller at Ameresco's option.
All work shall at all times be subject to inspection and testing by Ameresco. As customary or otherwise required, Seller shall perform, or cause to be performed, one or more factory tests of any of the equipment. Ameresco shall be provided with a list of proposed test dates which shall describe the inspection points, witness points, and hold points, the tests to be performed, the items of equipment to be tested, the standards and methods of testing, and the testing facility's capabilities. Ameresco shall have the right to be present at such meeting. Seller shall provide, or make available, the results of such required tests to Ameresco within twenty (20) days of the completion of each such test. Successful completion of such tests shall be a precondition to shipment of each tested item of equipment.
No acceptance of any work shall be construed to result from any inspections, tests or delays or failures to inspect or test by Ameresco. No inspection, test, delay or failure to inspect or test, or failure to discover any defect or noncompliance, by Ameresco shall relieve Seller of any of its obligations under this Purchase Order or impair Ameresco’s right or remedy afforded to Ameresco under this Purchase Order or otherwise by law, notwithstanding Ameresco’s knowledge of the defect or noncompliance, its substantiality or the ease of its discovery.
Ameresco’s failure or delay to insist upon strict performance of any of the provisions; of this Purchase Order or to exercise any rights or remedies under this Purchase Order shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely on any such provisions, rights or remedies in that or any other instance; rather the same shall be and remain in full force and effect.
9. ASSIGNMENT: Any assignment of rights or obligations by Seller under this Purchase Order in whole or in part without the prior written consent of Ameresco shall be void. No such assignment shall relieve Seller from its responsibility for performance of the work in accordance with this Purchase Order or from its responsibility for performance of any of its other obligations under this Purchase Order. Seller shall be fully responsible for the acts, omissions, conduct and performance of the suppliers utilized.
10. TERMINATION: Ameresco may cancel this Purchase Order in whole or in part at any time by written notice in the event Seller, without Ameresco's prior written consent: (1) fails to comply with any provision(s) of this Purchase Order; (2) becomes insolvent or makes an assignment for the benefit of creditors, or a receiver or similar officer is appointed to take charge of all or part of Seller's assets and such condition(s) is not cured within 30 days; (3) merges with or is acquired by a third party; or (4) attempts to assign any its rights or obligations under this Purchase Order. Upon cancellation, Seller shall deliver to Ameresco such work in process or completed Products as Ameresco may request. Ameresco shall have no liability to Seller beyond payment for Products delivered to or Services provided and accepted by Ameresco prior to Seller's receipt of notice of cancellation for such additional Products specifically requested by and delivered to Ameresco.
11. SET-OFF: Ameresco shall have the right at any time to set off any amount owing from Seller to Ameresco or its subsidiaries or affiliates against any amount payable by Ameresco pursuant to this Purchase Order. Payments under this Purchase Order may be withheld, in whole or in part, by Ameresco on account of (i) the failure of Seller to correct defective or noncomplying work; (ii) the failure of Seller to cure any failure to comply with any of the provisions of this Purchase Order or (iii) the failure of Seller to pay, satisfy, or discharge any claim (or potential) claim which reasonable evidence indicates may be filed) of Ameresco, of Seller’s suppliers or any other person against Seller arising out of or in connection with this Purchase Order or the work. If the foregoing causes are removed to the satisfaction of Ameresco, the withheld payments shall promptly be made. If such causes are not promptly removed after written notice, Ameresco may (but need not) rectify the same at Seller’s expense and deduct all costs and expenses incurred thereby from such withheld payments. If such withheld payments are insufficient to satisfy the same or if any claim against Seller shall be discharged by Ameresco after final payment is made, Seller shall promptly reimburse and pay to Ameresco all costs and expenses incurred thereby (including, but not limited to, reasonable attorneys' fees), regardless of when such claim arose or whether such claim imposed a lien upon the work or the Premises.
12. INTELLECTUAL PROPERTY: Seller shall defend, at its expense, any claim against Ameresco alleging that Products, any part or item furnished under this Purchase Order ("Products") infringes any patent, copyright, trademark, trade secret or other intellectual property interest and shall pay all costs and damages awarded, if Seller is notified promptly in writing of such a claim. If a final injunction against Ameresco's use of the Products results from such a claim (or, if Ameresco reasonably believes such a claim is likely) Seller shall, at its expense, and as Ameresco requests, obtain for Ameresco the right to continue using the Products or replace or modify them so they become noninfringing, but functionally equivalent.
13. CONFIDENTIAL INFORMATION AND ADVERTISING: Without prior written consent of Ameresco, Seller shall neither disclose to any person outside its employ, nor use for purposes other than performance of this Purchase Order, any information pertaining to the existence or terms of this Purchase Order including but not limited to specifications and descriptions in this Purchase Order. Upon termination of this Purchase Order, Seller, at Ameresco's request, shall return to Ameresco all written documentation delivered to or generated by Seller pursuant to the performance of this Purchase Order.
14. COMPLIANCE WITH LAWS:
A.) All Products supplied and work performed under this Purchase Order shall comply with all applicable United States and foreign laws and regulations including, but not limited to, emission and safety standards, OSHA, the Fair Labor Standards Act of 1938 (29 USC 201-219), the Contract Work Hours and Safety Standards Act (40 USC 327-332), The Toxic Substance Control Act of 1976 (15 USC 2601), all laws restraining the use of convict labor, and Worker's Compensation Laws. Upon request, Seller agrees to certify compliance with any applicable laws or regulations. Seller's failure to comply with any of the requirements of this Section 16 may result in material breach of this Purchase Order.
B.) The following statutes and Executive Orders (E.O.'s) together with regulations issued thereunder are made a part of this Purchase Order if applicable. E.O. 11246, Equal Employment Opportunity; E.O. 11625, as Amended Minority Business Enterprises; E.O. 12138, Women-Owned Business Concerns; Section 503 of the Rehabilitation Act of 1973, as Amended (20 USC 793); and Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 as Amended (38 USC 2012).
C.) The provisions of the Clean Air Act (42 USC 125 et seq) are made a part of this Purchase Order if applicable.
D.) The provisions of any applicable state Right-To-Know laws and regulations are made a part of this Agreement. A copy of the applicable Products Safety Data Sheets as required under such laws and regulations shall be provided by Seller upon delivery of Products and updated as necessary.
15. INDEMNITY: Seller shall defend, indemnify and hold harmless Ameresco from any and all claims, liabilities, damages, costs and expenses (including, but not limited to, attorneys' fees) arising or alleged to arise out of or in connection with: (i) any act, error, omission, fault, strict liability, product liability or negligence of Seller or any of its suppliers; or (ii) any personal injury, death or damage to property or environment in connection with the sale of Products or the performance of the Services of this Purchase Order. To the fullest extent permitted by applicable law, this paragraph shall apply regardless of any negligence or other liability of Ameresco. Without limiting the generality of the foregoing, Seller assumes potential liability for actions brought by Seller's employees or other suppliers.
16. WARRANTY: Seller warrants that Services are performed in a workmanlike manner and that each Product: (1) is free of all liens and title encumbrances, (2) is free from defects in design, material and workmanship, (3) conforms to applicable specifications, drawings, samples or other descriptions referenced on the face of this Purchase Order, and (4) is suitable for the purpose for which intended if such purposes were made known to Seller. Seller's obligations under this warranty is limited to, at Ameresco's option: (1) performing the Services to Ameresco's satisfaction, or (2) repairing or replacing non conforming or unsuitable Products within 30 days of notice of such condition, or (3) crediting or refunding Ameresco the purchase price for such Products or Service. All expenses associated with the return to Seller of such Products and the delivery to Ameresco of repaired or replacement Products shall be borne by Seller.
The above warranties shall survive any delivery, acceptance, payment, termination, or expiration of this Purchase Order and shall run to Ameresco, its successors, assigns, customers, and users of its products. If at any time during the warranty period Seller receives from Ameresco written notice of any failure to comply with the warranty set forth above, Seller shall promptly correct such noncompliance and remedy any damage to other parts of the work or any other property resulting from such noncompliance.
17. GENERAL: Any contract resulting from the Purchase Order shall be governed by the laws of the Commonwealth of Massachusetts. The rights and remedies provided herein are in addition to those available to Ameresco at law or in equity. Failure by Ameresco to enforce any right or remedy herein or otherwise available shall not be deemed a waiver of such right or remedy on any other occasion. Seller shall not commence or prosecute any suit, proceeding, or claim to enforce the provisions of this Purchase Order, to recover damages for breach of or default under this Purchase Order, or otherwise arising under or by reason of this Purchase Order, other than in the courts of the Commonwealth of Massachusetts, or the United States District Court for the District of Massachusetts.