1. Payment Terms: DEC Associates is not a subcontractor and does not accept retention or withholding. An Upfront Deposit in the amount of 33% must accompany the signed Quotation / Purchase Order. The Upfront Deposit monies will be used to secure required raw materials for the project and necessary labor. If the Upfront Deposit does not accompany the signed Quotation/Purchase Order, no work, including preparation of shop drawings, will commence or be scheduled to commence until the Upfront Deposit is received and has cleared the bank from which it was drawn. All invoiced amounts are due and payable in full according to the payment terms and conditions agreed to. All invoices are due and payable in full net 30 days. Late payments will be subject to late fees equal to 1 ½ % per month on all late payments or the maximum amount allowed by law, whichever is less. The price quoted is based on payment in strict accordance with the payment terms. Should there be any delay in payment for any reason, the price shall be increased by 1 ½ % per month as referenced above. The Upfront Deposit will be applied to the final invoice.
2. Sales Tax. Sales tax is not included in the Purchase Order. In the event any local, State or Federal government or governmental agency imposes any sales, use or any other tax associated with the Purchase Order, the materials covered by the Purchase Order, or the delivery of materials contemplated by this Purchase Order, Buyer shall be responsible for the payment of any and all taxes. Notwithstanding any statutory or legal responsibility for Seller to collect or pay any taxes, Buyer’s responsibility for the payment of any tax is absolute.
3. Non-Responsibility for Installation. Seller and Buyer acknowledge that Seller is not an installer of the materials it manufacturers. Seller’s sole obligation under this Purchase Order shall be to manufacture and deliver the materials in accordance with the Scope of Work as shown on the specific contract documents referenced in the Quotation / Purchase Order.
4. Warranties. Seller makes no warranties express or implied including warranties as to merchantability or as to fitness for any particular use or purpose and shall not be liable for any loss or damage directly or indirectly arising from the use of such merchandise or for consequential or any other type damages.
5. Special Orders. If the goods ordered are to be specially manufactured to meet Buyer’s particular requirements or specifications and are not part of Seller’s standard trade line of merchandise, then Buyer agrees to defend, indemnify and hold seller free and harmless from and against any and all claims, demands, suits or other proceedings for any actual or alleged patent infringement whether U.S. or foreign patent or registration is involved.
6. Waiver of Consequential Damages:
Notwithstanding anything to the contrary in the Purchase Order, Special Provisions, or Purchase Order General Conditions, Contract Documents, Project Specifications, or any other document relating to the Project or materials, Buyer waives its right, if any, to consequential damages against Seller resulting from, or arising out of, any breach or delay in the performance of the terms and conditions contained in the Quotation / Purchase Order. Buyer also agrees to indemnify Seller, and hold Seller harmless from any and all claims, including defense costs and attorney’s fees arising out of or in any way related to this Quotation / Purchase Order or the material furnished hereunder, except those claims which have been adjudicated to be the sole responsibility of Seller, or caused by the sole negligence or willful misconduct of Seller.
7. Terms and Acceptance. If not signed by Buyer, this Quotation / Purchase Order becomes a contract when a signed copy is received by Seller or when shipment of all, or any portion of the goods described has been made. Except as stated in the immediately preceding sentence, it is a condition of this Quotation / Purchase Order that any provision printed or otherwise contained in any previous or contemporaneous purchase order issued by Buyer or acknowledgment hereof or thereof inconsistent or in addition to the terms and conditions herein stated and any alteration in this sales order contract shall have no force or effect and shall not constitute any part of this contract between Buyer and Seller.
8. Delays. This contract is subject to Seller’s ability to obtain the goods described from the manufacturer or supplier on or before the date required as specified on the first page of this sales order contract and seller shall not be liable for any delay in performance in the delivery or shipment of the goods or any part or portion thereof when such delay is from cause or causes beyond Seller’s control. In the event the review of shop drawings or requests for information are delayed, Seller shall not be responsible for any delay damages.
9. Risk of Loss. The risk of loss of the goods shall pass to Buyer as soon as they are delivered to Buyer, the project jobsite, or at the place designated for pickup or delivery as set forth on the first page of this sales order contract and if no such address appears, then the risk of loss shall pass to Buyer as soon as the goods are ready for delivery and without regard to any notice thereof.
10. Additional Security. Seller shall have the right to demand additional security for the payment of all sums due or to become due under and pursuant to this sales order contract by personal guarantee, irrevocable letter of credit or surety bond upon ten (10) days written notice given at any time prior to receipt of payment in full.
11. Interest. If payment is not made as and when due, interest shall automatically be due and payable at the rate of 1 ½% per month or 18% per year on the unpaid principal balance. If such interest rate is greater than the maximum rate permitted by law, it shall be reduced and deemed to be and shall be the maximum rate permitted by law on an annualized basis.
12. Governing Law and Venue. Notwithstanding the location of the Project or delivery location, this Quotation / Purchase Order shall be governed and interpreted by California law. Seller and Buyer agree that venue for any dispute involving this Quotation / Purchase Order shall be in Orange County, California.
13. No Design or Engineering. DEC Associates is not an engineering company or architectural design firm and does not offer those services. Unless otherwise stated, DEC Associates’ standard specifications and tolerances apply.
14. Unfinished Items. All items are “unfinished” unless specified herein. DEC Associates is a material supplier of non-structural architectural shapes and forms built to specification.
15. Credit Information. Customers without prior credit history with DEC Associates will be required to provide credit history verification. All contracts will be subject to preliminary lien and/or UCC-1 security. Buyer, upon request, shall furnish Seller with accurate information regarding the Project Owner or Owners, Project Lender or Lenders, and all other information necessary to validly perfect Seller’s mechanic’s lien, stop notice and other applicable legal rights.
16. Substitution. Seller may substitute material which is equal in quality, capacity, durability, ease of maintenance, and ease of installation to the material originally specified.
17. Termination for Convenience. In the event the project owner, general contractor, or Buyer terminates the Prime Contract, any subcontract, or any Purchase Order for convenience, Seller shall be entitle to recover all costs and anticipated profit for the entire amount of this Quotation/Purchase Order.
18. Not Construed Against Either party. Notwithstanding the fact that the Terms and Conditions have been printed by DEC Associates, both Seller and buyer agree that they have each have negotiated and participated in the drafting of this Quotation / Purchase Order and the DEC Terms and Conditions dated May 31, 2009. Consequently, the parties agree that any ambiguity shall not be construed against either party because each party has participated in the construction of the agreement.
19. Attorney’s Fees:
In the event of litigation, mediation, arbitration or collection efforts / demands arising out of any dispute between Seller and Buyer regarding this Purchase Order, including disputes regarding payment or prompt payment, in addition to any other damages awarded by the court or arbitrator, the prevailing party in any such litigation or arbitration shall be entitled to an award of all attorney’s fees and expert fees incurred in good faith.