AMERESCO, INC. - TERMS AND CONDITIONS OF PURCHASE
The following terms and conditions and those specified in this Purchase Order shall exclusively govern the purchase of all Materials and Services covered by the Purchase Order.
1. OFFER AND ACCEPTANCE: This Purchase Order constitutes an offer to Seller expressly limited to the terms herein. Buyer reserves the right to revoke his offer at any time prior to its acceptance. Seller shall be and act as an independent contractor (and not as the agent or representative of Buyer) with regard to performance of the work and this Purchase Order and represents that it is, and that at all times during performance of the work it shall be, fully experienced and properly qualified, licensed, equipped, organized and financed to perform the work. Seller shall perform the work in a professional, workmanlike and skillful manner, using the same degree of skill and care as a like professional performing like services or work, utilizing only experienced and properly qualified persons to perform the work.
2. CONFLICTING TERMS: In the event of a conflict, the order of priority is as follows: (1) typed or handwritten provisions on the face hereof, (2) attachments or exhibits, and (3) these preprinted terms and conditions.
3. PACKAGING AND PACKING: Seller shall properly package and pack the Material. Each container shall be clearly labeled to indicate the applicable Purchase Order number(s), Buyer part numbers and quantities of Material. A packaging slip for each Purchase Order itemized by container shall accompany each delivery.
4. DELIVERY: TIME AND DATE OF DELIVERY ARE OF THE ESSENCE. Delivery shall be F.O.B. Destination. Buyer may refuse delivery of Material made more than one week in advance of delivery schedule specified herein and may return such Material at Seller's expense. Seller shall notify Buyer immediately when Seller has knowledge of any potential delay in delivery.
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 Buyer will reimburse Seller for this expense.
7. PAYMENTS: Seller shall submit invoices only upon delivery of Material or completion of Services. Buyer shall issue payment within 30 days of receipt of a correct invoice provided Seller has delivered conforming Material or satisfactorily completed Services. Buyer 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 Material or Services or for any overpayments shall be deducted from subsequent payments due or, at Buyer's option, promptly refunded by Seller upon request.
8. INSPECTION AND ACCEPTANCE: Seller shall inspect all Material prior to shipment to Buyer. Material which fails to pass Buyer's incoming acceptance test may be rejected by Buyer and returned to Seller at Buyer's option. All work shall at all times be subject to inspection and testing by Buyer. As customary or otherwise required, Seller shall perform, or cause to be performed, one or more factory tests of any of the equipment. Buyer 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. Buyer shall have the right to be present at such meeting. Seller shall provide, or make available, the results of such required tests to Buyer 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 Buyer. No inspection, test, delay or failure to inspect or test, or failure to discover any defect or noncompliance, by Buyer shall relieve Seller of any of its obligations under this Purchase Order or impair Buyer’s right or remedy afforded to Buyer under this Purchase Order or otherwise by law, notwithstanding Buyer’s knowledge of the defect or noncompliance, its substantiality or the ease of its discovery. Buyer’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. WARRANTY: Seller warrants that Services are performed in a workmanlike manner and that Material: (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 are limited to, at Buyer's option: (1) performing the Services to Buyer's satisfaction, or (2) repairing or replacing non-conforming or unsuitable Material within 30 days of notice of such condition, or (3) crediting or refunding Buyer the purchase price for such Material or Service. All expenses associated with the return to Seller of such Material and the delivery to Buyer of repaired or replacement Material shall be borne by Seller. Other than the warranties set forth above, Seller makes no other warranty, express or implied for Material. The above warranties shall survive any delivery, acceptance, payment, termination, or expiration of this Purchase Order and shall run to Buyer, its successors, assigns, customers, and users of its products. If at any time during the warranty period Seller receives from Buyer 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.
10. ASSIGNMENT: Any assignment of rights or obligations by Seller under this Purchase Order in whole or in part without the prior written consent of Buyer 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.
11. TERMINATION: Buyer may cancel this Purchase Order in whole or in part at any time by written notice in the event Seller, without Buyer'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 Buyer such work in process or completed Material as Buyer may request. Buyer shall have no liability to Seller beyond payment for Material delivered to and accepted by Buyer prior to Seller's receipt of notice of cancellation for such additional Material specifically requested by and delivered to Buyer.
12. SET-OFF: Buyer shall have the right at any time to set off any amount owing from Seller to Buyer or its subsidiaries or affiliates against any amount payable by Buyer pursuant to this Purchase Order. Payments under this Purchase Order may be withheld, in whole or in part, by Buyer 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 Buyer, 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 Buyer, the withheld payments shall promptly be made. If such causes are not promptly removed after written notice, Buyer 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 Buyer after final payment is made, Seller shall promptly reimburse and pay to Buyer 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.
13. INTELLECTUAL PROPERTY: Seller shall defend, at its expense, any claim against Buyer alleging that Material, 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 Buyer's use of the Products results from such a claim (or, if Buyer reasonably believes such a claim is likely) Seller shall, at its expense, and as Buyer requests, obtain for Buyer the right to continue using the Products or replace or modify them so they become non-infringing, but functionally equivalent.
14. CONFIDENTIAL INFORMATION AND ADVERTISING: Without prior written consent of Buyer, 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 Purchases Order. Upon termination of this Purchase Order, Seller, at Buyer's request, shall return to Buyer all written documentation delivered to or generated by Seller pursuant to the performance of this Purchase Order.
15. COMPLIANCE WITH LAWS:
A. All Material 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 Purchase Order 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 Purchase Order. A copy of the applicable Material Safety Data Sheets as required under such laws and regulations shall be provided by Seller upon delivery of Material and updated as necessary.
16. INDEMNITY: Seller shall defend, indemnify and hold harmless Buyer 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 performance of the work of this Purchase Order. To the fullest extent permitted by applicable law, this paragraph shall apply regardless of any negligence or other liability of Buyer. Without limiting the generality of the foregoing, Seller assumes potential liability for actions brought by Seller's employees or other suppliers.
17. EQUAL OPPORTUNITY: Seller shall abide by the requirements of 41 CFR 60- 1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and Sellers take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, disability or veteran status.
EEO
BUYER is a contractor under various contracts with agencies of the U.S. federal government. The following applies to SELLER as a subcontractor, to the extent that goods or services provided by SELLER are, in whole or in part, necessary to the performance of any such U.S. federal government contract, or to the extent that SELLER performs, undertakes or assumes any portion of the contractor’s obligation under any such U.S. federal government contract:
This contractor and subcontractor shall abide by the requirements of 41 C.F.R.§§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin or for inquiring about, discussing, or disclosing compensation. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or disability.
This agreement also hereby incorporates, where applicable, 29 CFR Part 471, Appendix A to Subpart A.
18. GENERAL: Any contract resulting from this 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 Buyer at law or in equity. Failure by Buyer 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. Seller hereby irrevocably consents to the jurisdiction of the courts of the Commonwealth of Massachusetts and of the U. S. District Court.
19. INSURANCE REQUIREMENTS
1. Seller shall ensure that, with respect to all persons performing Work or Services hereunder, Seller maintains in effect at all times during the performance of such Work or Services coverage or insurance in accordance with the applicable laws relating to Workers’ Compensation and Employer’s Liability insurance (including, but not limited to, the applicable Industrial Insurance Act), regardless of whether such coverage or insurance is mandatory or merely elective under applicable law. Seller shall furnish to Buyer assurance and evidence acceptable to Buyer of such coverage or insurance including, without limitation, Certificates of Compliance issued by the applicable Department of Labor and Industries).
2. Prior to the commencement of any Work or Services hereunder, and as a condition precedent to payment Seller shall secure such liability insurance as will protect Seller, Buyer and Owner, and any other third parties as may be required (Buyer and the Customer collectively, the (“Additional Insureds”) from and against any and all claims and liabilities arising out of bodily injury (including death), personal injury or property damage that may result from performance of the Work or Services, whether such performance is by Seller or any of its Sellers and sub consultants.
3. Without limiting the generality of the foregoing, Seller and all sub Sellers and sub consultants of all tiers shall maintain without interruption, as a minimum, the following insurance coverage’s and limits in full force and effect at all times during the term of this Purchase Order and or until the end the end of the applicable warranty period or as specified herein. Buyer shall not be responsible for any deductibles or self-insured retentions or for any tools and equipment owned, leased or used by Seller in the performance of the Work or Services.
a. Commercial General Liability coverage including Premises/Operation Liability, Products/ Completed Operations Liability (to remain in force from the date of final completion of the Work or Services until the expiration of the statute of repose of the State in which the Work or Services is located), Contractual Liability, Independent Contractors and Personal & Advertising Injury coverage, with no exclusion for explosion, collapse and underground property damage, in all cases where sub consultants are to perform any of the Work or Services to be done under this Purchase Order, and Broad Form Property Damage coverage): Bodily Injury (including death) - $1,000,000 per occurrence; $2,000,000 per project aggregate; products completed operations aggregate $2,000,000. Such policy shall be written on ISO CG 00 01 12/07 or its equivalent and shall not contain exclusions for residential construction, mold and or fungi.
b. Comprehensive Automobile Liability coverage (including owned, hired, and non-owned vehicles): Bodily Injury (including death), Property Damage - $1,000,000 Combined Single Limit per occurrence. If hauling hazardous waste and/or materials such policy shall include MCS 90 endorsements and CA 99 48. If applicable to the Work provide riggers liability insurance $1,000,000 per occurrence, $2,000,000 general aggregate as well as warehousemen’s liability insurance $1,000,000 per occurrence, $2,000,000 general aggregate. In the event Seller does not carry warehousemen’s liability insurance, Seller shall provide broad form coverage for the care, custody and control of Buyer’s property via an endorsement to Seller’s property insurance policy. Seller (i) acknowledges that it has no title to Buyer’s equipment, (ii) waives any statutory or common law liens which it may have on the equipment, (iii) permits Buyer to UCC-1 filing it so chooses, (iv) represents that it will not grant or permit others to create a lien on Buyer’s equipment and (v) represents it correct legal name and filing office for such filing.
c. Workers’ Compensation – Statutory Limits including USL&H, marine employees and Jones Act endorsement as applicable to the Work and/or Services. A separate Defense Base Act policy will be required for work performed on a US military base.
d. Employers Liability - $1,000,000 each accident; $1,000,000 for disease, each employee and $1,000,000 disease, policy limit. A separate Defense Base Act policy with limits of $1,000,000 each accident, $1,000,000 for disease, each employee and $1,000,000 disease, policy limit will be required for work performed on a US military base.
e. Commercial Umbrella Liability Insurance with a limit of not less than $5,000,000 per occurrence and in the aggregate. These limits shall apply in excess of the Commercial General Liability, Employer’s Liability and Commercial Automobile Liability coverage’s described above.
f. Pollution Liability with a limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate. Coverage for bodily injury or property damage shall include but not limited to asbestos, lead, mold, fungus, EIFS, release, discharge or escape of any pollutants or hazardous materials including the cost of on-site and off-site cleanup; and defense, including costs and expenses incurred in the investigation, defense or settlement of claims. Claims-made policies shall contain coverage for completed operations for a period of three (3) years following completion of the Work and/or Services (or the statute of repose in the State in which the Work or Services is located whichever is greater) and include a retroactive date which is no later than the effective date of this Purchase Order
g. Professional Liability Insurance - $1,000,000 per claim; $2,000,000 aggregate, as will protect Seller from claims which may arise out of or result from Seller’s professional services under this Purchase Order or by a Seller or sub consultant of Seller, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts Seller may be liable and include a retroactive date which is no later than the effective date of this Purchase Order, and be renewed or have an extended reporting period totaling at least three (3) years (or the statute of repose in the State in which the Work or Services is located whichever is greater) which requirement may be met by providing renewal certificates of insurance to Buyer.
h. Cyber Liability Insurance - $5,000,000 per claim; $5,000,000 aggregate, coverage shall include but not limited to computer or network system attacks, denial or loss of service, introductions, implantation, or spread of malicious software code, theft, loss or misuse of data, release of private information and responsibility for costs, fines and penalties incurred by Buyer, unauthorized access and use of computer systems, privacy liability, breach response coverage.
i. Crime Insurance - $5,000,000 coverage shall include but not limited to theft or loss of money, securities or other property, dishonest or fraudulent acts committed by employees. Buyer shall be named as a loss payee as its interest may appear.
j. Aircraft Liability, to the extent exposure exists, covering any owned, non-owned or hired aircraft used in the operation of the Work or Services with a limit of not less than $10,000,000 per occurrence and in the annual aggregate.
4. All such insurance shall;
a. Be placed with such insurers and under such forms of policies as may be acceptable to Buyer.
b. With the exception of Workers’ Compensation, Employer’s Liability and Professional Liability be endorsed to name the Additional Insureds as additional insured’s, and to allow severability of interests and rights of cross-claim and shall not contain any commutation clause or any other provision that limits third party action over claims. The General Liability additional insured endorsement shall be provided by CG 2010 10 01 and CG 2037 10 01, or equivalent.
c. Be primary insurance with respect to the interest of the Additional Insureds and any insurance or self-insurance maintained by the Additional Insured’s is excess and not contributory insurance with the insurance required hereunder.
d. With the exception of Workers’ Compensation insurance and Employers’ Liability insurance, apply severally and not collectively to each insured against whom claim is made or suit is brought, except that the inclusion of more than one insured shall not operate to increase the insurance company’s limits of liability as set forth in the insurance policy.
e. Provide that the policies will not be canceled or their limits or coverage reduced or restricted without giving at least thirty (30) days prior written notice to Buyer, Inc., 111 Speen Street, Suite 410, Framingham, MA 01701, Attention: Contract Administrator.
f. Include a waiver of the insurer’s right of subrogation in favor of the Additional Insured’s. To the extent permitted law, Seller hereby waives all rights of subrogation against the Additional Insured’s.
5. Seller shall notify Buyer of any erosion of aggregate limits under any of the insurance policies required hereunder and, if requested, purchase additional limits of coverage as may be deemed appropriate by Buyer.
6. Seller shall furnish Buyer with evidence of insurance required by this Purchase Order as Buyer may from time to time request. Insurance certificates (and/or copies of policies if requested), shall be furnished to Buyer prior to Seller commencing any Work or Services under this Purchase Order, and thereafter, thirty (30) days prior to the expiration date of each such policy. Failure of Buyer to demand such certificate or other evidence of full compliance or failure of Buyer to identify deficiencies from such certificates or evidence that is provided shall not be construed as a waiver of Seller’s obligation to maintain such insurance.
7. The insurance requirements under this Purchase Order and Buyer’s acceptance of the insurers maintained by Seller and its sub consultants are not intended to and shall not in any manner limit or qualify the liabilities, defense and indemnity obligations assumed by Seller under this Purchase Order.
8. In the event Seller fails to obtain or maintain any insurance coverage required under this Purchase Order, Buyer may purchase such coverage and charge the expense thereof to Seller, or terminate this Purchase Order.
9. All policies of insurance must be written on an occurrence basis, except for Workers’ Compensation, Employer’s Liability and Professional Liability insurance, and must be issued by companies licensed and admitted, or authorized to do business, in the state or jurisdiction where the Work or Services are to be performed, having a rating of at least “A” (Excellent) and a financial rating of “X” as rated by the most recent A.M. Best’s Insurance Rating Guide.
10. In the event Seller has in force any insurance with coverage’s broader and/or limits higher than the minimum coverage amounts specified in herein, (a) such broader coverage’s and higher limits shall insure and be available to all Additional Insureds and (b) this Purchase Order shall be deemed to require such broader coverage’s and higher limits.
20. CODE OF BUSINESS ETHICS Buyer’s Code of Business Ethics dated May 27, 2010 (the “Code”) requires any individual or company who conducts business for or with Buyer to comply with the Code, a copy of which is available upon request. Seller represents and warrants that it shall comply with the Code as it relates to the Services.
21. FORCED LABOR: Seller does not support any initiative that endorses or utilizes forced (or child) labor in any form. Further, Seller is committed to diligently ensuring that any company they engage for business purposes, including sub-contractors, consultants, and vendors, share the same stance.
22. ACCEPTABLE USE POLICY. For all Purchase Orders involving the Seller’s access to personal information, and confidential data as defined in 201 CMR 17 (herein collectively “personal information”), Seller certifies under the pains and penalties of perjury that the Seller (1) has read 201 CMR 17 and agrees to protect any and all personal information; and (2) has reviewed the Buyer’s Acceptable Use Policy.
23. NOTICES All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder (other than regularly scheduled payments) shall be deemed properly given or made upon receipt if delivered in person or sent by electronic facsimile with regular mail follow-up, or two business days after being deposited in the mail if sent by registered or certified mail, return receipt requested, postage prepaid, or the next business day if sent by overnight delivery service, in each case, addressed as follows:
Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, Massachusetts 01701
Attention: General Counsel
AND to Seller at the Address/Attention on the attached Purchase Order
Either Party may change such address from time to time by written notice to the other Party