Terms of Purchases

POWER ENGINEERING SERVICES, LLC – TERMS OF PURCHASES

These terms and the purchase order or other sales document (“Order”) govern the purchase of any items, materials, products or other deliverables (“Goods”) by Power Engineering Services, LLC (“Buyer”) from the company (“Seller”) listed on any applicable Order.

ACCEPTANCE: The Order becomes binding when accepted either by a written acknowledgment, commencement of work, or shipment of the Goods.  Any deviations or counteroffers from the Seller are subject to Buyer’s approval. The Seller’s acceptance of the Order is governed solely by the terms and conditions specified in this document, and any additional terms or conditions are not applicable unless agreed to in writing by the Buyer. NO CONFLICTING OR ADDITIONAL TERMS AND CONDITIONS OF SELLER OR ITS SUPPLIERS WILL APPLY TO THIS TRANSACTION UNLESS BUYER SPECIFICALLY AGREES TO SUCH TERMS AND CONDITIONS IN WRITING HEREIN.

DELIVERY AND RISK OF LOSS:  Delivery of the Goods must occur at the location specified in the Order, and delivery must be made on or before the agreed delivery date. Risk of loss or damage to the Goods remains with the Vendor until the Goods are delivered and accepted by the Buyer at the specified location.

PRICE: Buyer shall pay Seller the price shown on this Order. The price for the materials is fixed as specified in the Order provided and includes all applicable taxes, duties, and shipping costs unless stated otherwise. Any deviations, changes, price increases, or modifications to the Order must be approved by Buyer in writing.

PAYMENT: Unless agreed to otherwise in writing by Buyer, Buyer agrees to pay any valid, undisputed invoice 60 days from receipt and complete inspection of the Goods. Seller is required to submit proper invoices, including all necessary supporting documentation, before any payment can be processed. Seller agrees that any claim for payment by Seller which were not invoiced or not raised with Buyer within one hundred eighty (180) days from the earlier of (i) the date that Goods were delivered, or (ii) the date that the event giving rise to the claim payment occurred, shall be waived and Buyer shall have no further liability to Seller under the Order.

INSPECTION.  Goods purchased hereunder shall be subject to Buyer’s count, inspection, and testing at any reasonable time and from time to time before, during or after manufacture or delivery. Notwithstanding any payment that may be made, no Goods are to be deemed accepted until Buyer has had a reasonable opportunity to inspect and test them. Buyer’s inspection shall not constitute a waiver of the right to subsequent rejection by reason of any undiscovered patent or latent defect.

WITHHOLDING: Buyer reserves the right to withhold payment for any Goods that do not meet the specifications or are damaged/defective. Buyer will deduct from amount of invoice any excess costs resulting from Seller’s disregard of Buyer’s shipping instructions, if any. Seller shall be responsible for any costs or expenses incurred by or charged to Buyer in connection with the inspection, receipt, transportation and care and custody of defective Goods supplied under this order.

INDEMNITY: SELLER AGREES TO INDEMNIFY, DEFEND, AND HOLD BUYER HARMLESS ON ACCOUNT OF ANY CLAIMS OR DEMANDS WHATSOEVER THAT MAY BE MADE AGAINST BUYER ANY ACTION OR ACTIONS AT LAW OR IN EQUITY WHICH MAY BE BROUGHT AGAINST BUYER ON ACCOUNT OF ANY ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT BY REASON OF THE SALE OR USE OF THE MERCHANDISE SOLD HEREUNDER. SELLER FURTHER AGREES TO INDEMNIFY, DEFEND AT ITS EXPENSE, AND HOLD SELLER HARMLESS FROM ALL CLAIMS AND SUITS ASSERTED BY OR BOUGHT AGAINST BUYER RELATED TO ANY CLAIM INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DEATH AND PROPERTY DAMAGE ARISING OUT OF SELLER’S BREACH OF THIS ORDER, GOODS OR SERVICES SUPPLIED UNDER THIS ORDER OR FOR ANY ALLEGED DEFECTS IN MATERIAL, WORKMANSHIP OR DESIGN OF THE MERCHANDISE SOLD HEREUNDER.

INSURANCE: Seller shall maintain during the term of this Order, at its own expense, the following insurance in amounts reasonably acceptable to Buyer (including as set forth in a separate written agreement between the parties), but in no event less than the amounts set forth herein: (i) Workers’ Compensation insurance as required by law, employer’s liability insurance of at least $1,000,000 per occurrence, $2,000,000 aggregate, (ii) General Liability insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate, (iii) Automobile Liability insurance with combined single limits of $1,000,000, and (iv) umbrella coverage of at least $5,000,000 per occurrence, covering the foregoing insurances. Seller shall provide Buyer with a certificate of insurance evidencing that the required minimum coverage is in effect and that Buyer, its directors, officers, employees, agents and representatives are named as additional insureds, provide a waiver of subrogation clause in favor of the additional insureds (except with regard to Seller’s Worker’s Compensation insurance and employer’s liability coverage), and provide that all coverage provided by the Seller shall be primary. If the Seller is a manufacturer of Goods, then Seller agrees to maintain product liability insurance, in accordance with the requirements above, with insurers and minimum amounts reasonably acceptable to Buyer covering its interests as a Buyer of Seller’s Goods; it being understood that the maintenance of such product liability insurance coverage shall not be a satisfaction of Seller’s liability hereunder or in any way modify Seller’s indemnification obligations.

WARRANTIES: Seller warrants that all Goods provided pursuant to this Order, whether provided by Seller or a direct or indirect supplier of Seller, will be: (a) free of any claims or security interests of any nature, including without limitation title claims, and Seller will cause any lien or encumbrance asserted to be discharged, at its sole cost and expense, within thirty (30) days of its assertion (provided such liens do not arise out of Buyer’s failure to pay amounts not in dispute under this Order or an act or omission of Buyer); (b) new and of merchantable quality, not used, rebuilt or made of refurbished material unless approved in writing by Buyer; (c) free from all defects in design, workmanship and material; (d) fit for the particular purpose for which they are intended; and (e) provided in strict accordance with all specifications, samples, drawings, designs, descriptions or other requirements approved or adopted by Buyer. Seller further warrants that all Services will be performed in a competent and professional manner in accordance with the highest standards and best practices of Seller’s industry. Seller’s warranties shall extend to the Buyer and/or the Buyer’s customer for a period of at least twelve (12) months from the date of shipment to the ultimate end user, or twelve (12) months after completion of Services. ANY ATTEMPT BY SELLER TO LIMIT, DISCLAIM, OR RESTRICT ANY SUCH WARRANTIES OR ANY REMEDIES OF BUYER, BY ACKNOWLEDGMENT OR OTHERWISE, IN ACCEPTING OR PERFORMING THIS ORDER, SHALL BE NULL, VOID, AND INEFFECTIVE WITHOUT BUYER’S WRITTEN CONSENT. SELLER’S WARRANTIES SHALL RUN TO BUYER, ITS SUCCESSORS, ASSIGNS, CUSTOMERS AT ANY TIER, ULTIMATE USERS, AND JOINT USERS. Buyer has the right to reject or return the Goods at the Seller’s expense and to demand a full refund or replacement of the Goods within 60 calendar days of the good being delivered to the specified location. 

INDEPENDENT CONTRACTOR.  Each party and its agents and representatives are independent consultants in relation to the other party with respect to all matters arising under this Order.  Nothing in this Order shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties.

GOVERNING LAW.  The Order shall be governed and construed in accordance with the laws of Texas, excluding any conflict of law or other provision referencing the laws of another jurisdiction. Buyer and Seller each hereby submit to the exclusive jurisdiction of the federal and state courts located in Harris County.

ENTIRE AGREEMENT.  These Order constitutes the entire agreement between the Parties relating to the subject matter hereof, and supersedes all previous contracts, understandings and other agreements between the Parties including any other terms, document or form issued by or on behalf of Buyer, all of which are hereby rejected and deemed void and of no force or effect.