HAVENPARK PURCHASE ORDER: TERMS AND CONDITIONS
These Terms and Conditions:
1. General-Definitions. These Terms and Conditions (“Terms and Conditions”) are incorporated into, are part of, and shall govern this purchase order (“Purchase Order”) issued by Havenpark Communities, LLC, or any Havenpark-affiliated company (collectively, “Havenpark”) to any contractor, subcontractor, vendor, or supplier (collectively, “Supplier”) relating to Havenpark’s purchase of goods, services, or other items (collectively, “Work’) from Supplier. Havenpark and Supplier are jointly the “Parties.” All materials, equipment, and goods that are part of Supplier’s Work shall be referred to as “Materials”; all services and labor that are part of Supplier’s Work shall be referred to as “Services”; and “Work” shall consist of Supplier’s Materials and Services. Havenpark’s rights and remedies herein are in addition to all other remedies at law or in equity.
2. Acceptance. Supplier shall be deemed to have accepted, and shall be bound by, these Terms and Conditions when Supplier executes and returns to Havenpark a copy of the Purchase Order or otherwise accepts the Purchase Order in writing or verbally; when Supplier commences manufacturing, fabricating, or purchasing parts for any of the Materials, commences any Services, or otherwise commences any activity in furtherance of the Work, set forth in the Purchase Order; or when Supplier receives the Purchase Order and does not object to the provisions of the Purchase Order, including these Terms and Conditions, within ten (10) days of the date of the Purchase Order. However, if the Purchase Order is not signed and returned unmodified to Havenpark within ten (10) days of the date of the Purchase Order, it may be deemed voidable at the option of Havenpark. This Purchase Order shall not be amended or modified except in a writing signed by both Parties.
Supplier’s Work:
3. The Work. Supplier expressly warrants that all Materials shall be new, be without defects, of merchantable quality, fit for Havenpark’s intended purposes, and conform to the drawings, specifications, data, samples, requitements, and other descriptions furnished or incorporated into the Purchase Order. Supplier expressly warrants that all Services shall be performed in a good and workmanlike manner, within the applicable standard of care, of merchantable quality, and fit for Havenpark’s intended purposes. These express warranties regarding the Work are in addition to, and not in lieu of, any implied or other warranties applicable to the Work.
4. Shipping. Supplier shall strictly comply with any shipping instructions provided by Havenpark. Supplier shall provide Havenpark with twenty-four (24) hours’ notice prior to the delivery of any Materials. All shipping and freight costs shall be borne by Supplier. All risk of loss and damage shall be borne by and remain with the Supplier until the Materials are accepted by Havenpark and physically incorporated into Havenpark’s property and project.
5. Materials. All shipments of Materials shall be subject to final inspection by Havenpark upon receipt. Upon reasonable request, shipments shall be accompanied by detailed delivery tickets to assist Havenpark in its inspection. Should Havenpark discover any damage or shortfalls in the Materials, Havenpark shall report them to Supplier. Havenpark retains the right to reject and refuse acceptance of any Materials that are not in accordance with the Purchase Order. Havenpark may deduct from any amount owed to Supplier under a Purchase Order the reasonable cost of re-inspecting Materials so rejected. Materials not accepted due to nonconformance with the Purchase Order shall, at Havenpark’s sole option, be (a) returned to Supplier at Supplier’s expense; (b) held by Havenpark for an equitable reduction in price; or (c) repaired or replaced at Supplier’s expense to Havenpark’s satisfaction, with such repair or replacement commencing within 48 hours after demand. Acceptance by Havenpark shall not constitute acceptance as to latent or hidden defects not subject to discovery upon reasonable inspection, and payment for any Materials shall not constitute acceptance of any Materials found out of compliance with the Purchase Order.
6. Manufacturer Warranties. All manufacturer warranties for Supplier’s furnished Materials shall be and are hereby assigned from Supplier to Havenpark. Supplier shall advise and assist Havenpark regarding any necessary registration requirements in regard to any manufacturer warranties.
7. Services. For any Services or other Work not in conformance with the Purchase Order or any warranties hereunder, Havenpark may, at its sole option, (a) demand that Supplier repair and remedy the nonconforming Work at Supplier’s expense within 48 hours after such demand; or (b) repair and remedy the nonconforming Work itself or through retention of a third-party contractor and deduct the repair/remediation costs from the Contract Sum.
8. Information. Supplier shall fully and timely provide Havenpark with all information, requirements, reports, and data necessary for performance of the Work; Havenpark shall be entitled to rely upon the accuracy and completeness thereof; and errors and omissions therein shall constitute a breach by Supplier.
9. Miscellaneous. Supplier is performing Work as an independent contractor, and neither Supplier nor any of Supplier’s employees shall be considered employees of Havenpark for any purpose. Havenpark has no obligation to utilize Supplier for any type or quantity of work outside of the Work expressly set forth in the Purchase Order. Supplier shall be solely responsible for compliance with all compensation, unemployment compensation, occupational health and safety, or similar statutes related to the work of its employees. Havenpark shall not supervise, direct, control, or have authority over Supplier or any contractor or consultant hired by Supplier, nor shall Havenpark have authority over or be responsible for the means, methods, techniques, sequences, progress of work, safety rules or precautions, or procedures of construction selected or used by Supplier or any such contractor or consultant. Supplier shall comply with all federal, state, and local laws, codes, and ordinances, including tax laws, at its own cost.
Payment-Related Terms:
10. Contract Sum – Payments. Supplier shall perform all Work in exchange for payment from Havenpark, pursuant to the terms herein, in the amount of the contract sum expressly set forth in the Purchase Order, or if no definite amount is noted, at the rate(s) expressly set forth in the Purchase Order (“Contract Sum”). Except for payment of the Contract Sum, Havenpark has not liability for any expense or loss incurred by Supplier relating to or resulting from the Work. If and as permitted or required by Havenpark, Supplier may submit progress invoices, no more frequent than on a monthly basis, but in all events shall only submit invoices for Work properly performed and shall submit invoices within thirty (30) days of Work performed. Supplier shall not bill for any stored Materials that are not yet delivered and fully incorporated. Subject to receipt of lien waivers as requested by Havenpark and subject to the other terms herein, Havenpark shall pay invoices within thirty (30) days from receipt. Havenpark shall have no liability to pay any invoices submitted by Supplier more than sixty (60) days following the performance of the invoiced Work.
11. Competitive Pricing. Supplier warrants the Contract Sum is not in excess of prices charged to similar customers for similar Materials and Services. During the term of the Purchase Order, if Supplier reduces its prices on any materials and/or services that are identical to the Materials and Services hereunder, Supplier shall automatically reduce the unit price or other price on the Materials and Services not yet furnished by such same amount or percentage.
12. Payments Held in Trust. To the extent any portion of Havenpark’s payment to Supplier is intended for Supplier’s suppliers/subcontractors, Supplier shall hold those payments in trust for its suppliers/subcontractors and pay them first from any payment received from Havenpark.
13. Lien Waiver. Supplier expressly waives any right to file a mechanic’s lien related to its Work, and shall require an identical advance lien waiver from its suppliers/subcontractors. In the event Supplier or its suppliers/subcontractors file a mechanic’s lien related to Supplier’s Work, then (a) within ten (10) days of the filing of such lien, Supplier must cause the lien to be removed or discharged from Havenpark’s property, and (b) Supplier agrees to indemnify, defend, and hold harmless Havenpark for all costs, including reasonable attorneys’ fees, incurred to remove such mechanic’s lien.
14. Grounds for Withholding. Havenpark is entitled to withhold payment, in a reasonable amount as solely determined by Havenpark, on any progress or final invoice from Supplier if: (a) the invoiced Work has not been fully or properly performed; (b) Havenpark has requested, but not received, lien waivers, in a form approved by Havenpark, from Supplier or its suppliers/subcontractors; (c) Supplier has failed to pay, or reasonable doubt exists by Havenpark regarding Supplier’s duty to pay, its suppliers/subcontractors for the Work; (d) reasonable doubt exists by Havenpark that the Work can be completed for the unpaid balance of Contract Sum and/or completed on schedule; (e) the real or personal property of Havenpark has been damaged arising out of Supplier’s Work; (f) Havenpark has incurred costs or damages, or anticipates doing so, due to Supplier’s Work, actions, or omissions; and/or (g) Supplier is in breach of the Purchase Order. Finally, Havenpark may withhold payment if Supplier’s work for Havenpark under a separate purchase order or on a separate project has not been fully or properly performed or Havenpark has a basis to withhold payment for such other work.
15. Changes. Havenpark has the right to order changes in the Work (including, but not limited to, changes in quantity or the place or method of shipping), and such change shall not invalidate the Purchase Order. In the event Supplier believes such Havenpark-ordered change, or any other event or circumstance, entitles Supplier to an increase in the Contract Sum or additional time to perform the Work, then Supplier shall provide to Havenpark, for its consideration, a written claim for additional compensation or time within (a) two business days of such ordered change or the event/circumstance or (b) prior to the commencement of the applicable work, whichever is earlier. Failure of Supplier to abide by this provision equates to a waiver of Supplier’s right to maintain such a claim, and no additional compensation or time will be provided by Havenpark without a fully executed change order.
Rights and Remedies:
16. Waiver. Supplier expressly waives any claim for incidental, indirect, or consequential damages from Havenpark related to or alleged to arise in connection with Work performed under a Purchase Order. Upon receipt of the final payment under a Purchase Order, Supplier waives any and all claims against Havenpark related to the Purchase Order or its related Work arising under any legal or equitable theory whatsoever
17. Havenpark Information. Unless otherwise expressly set forth in writing by Havenpark, (a) all documents, reports, plans, and tangible work products prepared, or provided to Supplier, by Havenpark are instruments of service (“Instruments of Service”) for which Havenpark retains the ownership and property interest (including the copyright and right of reuse), and (b) Supplier has limited license to use the Instruments of Service only for the Work.
18. Suspension-Termination. Havenpark may at any time terminate a Purchase Order for its own convenience, in which event Havenpark shall pay Supplier for Work properly provided prior to the date of termination; Havenpark shall not be liable to Supplier for any unrealized profit as of or after such date. Havenpark may also order Supplier to suspend or delay its performance under a Purchase Order, in which event Supplier shall immediately suspend or delay its Work without entitlement to additional compensation related to such suspension or delay.
19. Indemnification. Supplier shall indemnify, protect, defend (at its expense and with counsel reasonably acceptable to Havenpark), and hold harmless Havenpark as well as its respective affiliate companies, officers, managers, members, employees, and other agents, from and against all claims, losses, causes of actions, judgments, attorneys’ fees, costs, compensatory damages, expenses, or other damages (hereinafter referred to together as “Claims”), to the extent the Claims are caused by the negligent or intentional/willful action or inaction/omission, any contractual breach, or any other violation of law by Supplier or Supplier’s employees, independent contractors, or other persons/entities for whose acts Supplier is responsible.
20. Dispute Resolution. The Purchase Order shall be governed by the laws of the State of Utah without regard to laws governing conflicts of law. All claims, controversies, and disputes arising out of or relating to the Purchase Order or Work shall be subject and submitted to arbitration, administered by the American Arbitration Association, in Utah County, Utah with the award rendered by the arbitrator being final and with judgment being entered upon it by any court having jurisdiction thereof; provided however, at Havenpark’s sole election, Havenpark may submit any claim, controversy, or dispute to litigation in the state or federal courts in and for Utah County, Utah with the matter heard by a judge and not a jury, and in such event, the Parties consent to personal jurisdiction in Utah. IN ALL CASES, BOTH PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ALL RIGHT TO A TRIAL BY JURY. To the extent Havenpark must enforce the terms of the Purchase Order in any proceeding or action, or must defend itself in any proceeding or action involving Supplier, Havenpark is entitled to recover its reasonable attorney fees and costs (including court, expert/consultant, appeal, and judgment execution costs) from Supplier in the event Havenpark is the prevailing party.
21. Miscellaneous. Time is of the essence under this Purchase Order. Supplier has not offered to or given any Havenpark employee or agent any gratuity to influence such person or secure any business from Havenpark. Supplier shall not assign any rights hereunder without Havenpark’s written consent. If any provision of the Purchase Order is declared invalid or unenforceable, the remaining provisions shall remain in full effect. Either Party’s failure to insist on performance hereunder, or to exercise any right hereunder, shall not thereafter waive any such term or right hereunder. The Purchase Order, including these Terms and Conditions, constitute the entire, integrated agreement between the Parties related to the subject matter thereof, and expressly supersedes any prior negotiations, representations, or agreements, whether oral or written. This Purchase Order may be amended or modified only in a writing signed by both Parties; likewise, to the extent these Terms and Conditions conflict with or are otherwise inconsistent with the terms of any written or verbal agreement between the Parties, these Terms & Conditions supersede and override the terms of any such other agreement including, without limitation, any provision purporting to limit or waive Supplier’s liability to Havenpark.