CET Version 2022P.1
C.E. THURSTON & SONS INC. (“CET”) VENDOR TERMS AND CONDITIONS
1. PARTIES. For purposes of this document and any related purchase order issued by C. E. Thurston & Sons, Inc., “Buyer” means C. E. Thurston & Sons, Inc., a Virginia Corporation, and “Seller” means the vendor or supplier receiving this document or any related or attached purchase order from Buyer.
2. OFFER AND ACCEPTANCE. The Buyer’s purchase order is the Buyer’s offer to Seller for the purchase of the goods or materials (“Products”) described in the Buyer’s purchase order (which together with this document comprise the “Order”). Each Order is made conditional on Seller’s assent to all its terms and provisions. Such assent shall be deemed provided when Seller commences delivery of the Products or takes any other action acknowledging the Order. Any such action shall constitute Seller’s acceptance of Buyer’s offer and constitute a firm contract for the sale, supply and provision of the Products solely on the terms and provisions set forth in the Order. Seller’s acceptance of the Order is subject to and governed by the terms and conditions stated in the Order, including this document, which cumulatively comprise the complete and exclusive statement of the terms of agreement between Seller and Buyer. No modification of the Order shall bind Buyer unless it is agreed to in writing and signed by Buyer’s duly authorized representative. All inconsistent or additional terms and provisions printed or otherwise contained in any acknowledgment, quotation, invoice or other writing sent by Seller in connection with the Order are objected to by Buyer, and no such terms or provisions will constitute part of the agreement for the purchase and sale of the Products unless expressly and specifically agreed in writing by the Buyer in the Order.
3. CHANGES. At any time and without notice to any party other than Seller, Buyer may make reasonable changes within the general scope of the Order to any one or more of the following: (a) the quantities of or specifications for Products ordered; (b) methods of shipment or packing; (c) inspection standards; (d) the schedule and place of delivery or performance; and (e) any other requirement of the Order: If any such change is ordered by Buyer, an equitable adjustment may be made to any price, time of performance or other provision of the Order required to be adjusted to give effect to such change. Any claim by Seller for an equitable adjustment shall be asserted in writing and received by Buyer within seven (7) days from the date Seller receives or has knowledge of the change order or such claim shall be deemed waived. Buyer shall have the right to examine or cause its agents to examine all books and records of Seller pertinent to any such claim upon Buyer’s request within a reasonable time. Failure of the parties to agree on any adjustment to be made under this provision shall not excuse Seller from proceeding with performance under the Order as changed.
4. PACKING AND SHIPPING. Except as otherwise stated in writing by Buyer in connection with the Order: (a) all Products shall be packed and shipped by Seller in accordance with Buyer’s instructions (if any) and good commercial practice, so as to assure that no damage will result from handling, weather or transportation; (b) all Products shall be shipped F.O.B., the destination designated in the Order; (c) no packing or shipping charges are authorized without Buyer’s prior written approval, and Seller shall be responsible for all packaging, shipping and transportation charges; (d) a detailed packing slip or equivalent document must accompany every shipment of Products; and (e) Buyer’s purchase order number must appear on each such document and each shipping container. All Products shipped must conform exactly to the Order, and substitution will not be permitted without Buyer’s prior written approval.
5. DELIVERY. Seller shall deliver all Products strictly according to the schedule specified or referred to in the Order. Products shipped in advance of schedule without Buyer’s prior written approval may be returned to Seller at Seller’s expense. Upon any failure of Seller to deliver as agreed, Buyer may cancel the Order in whole or in part and be relieved of all liability for any undelivered Products in addition to any other rights or remedies.
6. RISK OF LOSS. Risk of any loss or damage to the Products shall pass from Seller to Buyer upon delivery of Products to Buyer in conformance with the provisions of the Order. Passing of title to Buyer in connection with such delivery shall not constitute acceptance of the Products by Buyer or relieve Seller of any of its obligations under the Order.
7. INVOICES AND PAYMENT. Separate invoices shall be issued for each shipment of Products and otherwise in accordance with the requirements of the Order. Unless otherwise specifically provided in the Order, no invoice for any Products shall be issued prior to delivery of such Products. Except as expressly stated in the Order, Buyer shall not be required to make partial or progress payments and the Order shall not be considered complete and subject to payment until all items required in the Order have been received and found to be as ordered. Payment due dates and dates relating to discount periods shall be computed from the later of the date when any Products are received or the date on which Buyer receives a correct invoice for them. No interest or service charges shall accrue in connection with any amount payable by Buyer except as expressly stated in the Order. Except as otherwise specifically provided in the Order, all prices set forth in the Order include all taxes, assessments or duties lawfully assessed in respect of the Products covered by the Order.
8. INSPECTION, ACCEPTANCE AND REJECTION. (a) All Products to be delivered shall be subject to inspection and testing by Buyer at all reasonable times and places, including the period and place of manufacture or performance. Seller shall provide and maintain (or cause to be provided and maintained) inspection and quality control procedures acceptable to Buyer, and Buyer and its agents shall have access to all areas on the premises of Seller and its subcontractors in which Products are being manufactured or performed. Seller shall furnish to Buyer’s designated inspectors all information and data reasonably required to perform their inspections. All Products shall be subject to final inspection, testing and acceptance by Buyer at destination, notwithstanding any prior payment or inspection. Buyer shall accept or give notice of rejection of Products delivered within a reasonable time after receipt of such Products. No inspection by Buyer prior to acceptance shall release Seller from its responsibility for nonconformity of any Products with the requirements of the Order, and acceptance by Buyer shall not waive any rights Buyer might otherwise have with respect to any nonconformity.
(b) If Buyer determines that any Products delivered do not conform to the requirements of the Order, Buyer shall notify Seller of such determination and, in addition to all other available remedies, shall have the right to do any or all of the following: (i) hold nonconforming Products for a reasonable period pending a determination to accept or reject any or all of them; (ii) return nonconforming Products to Seller for replacement or correction at Buyer’s option; (iii) accept nonconforming Products, subject to an equitable price reduction; (iv) replace or correct nonconforming Products and charge Seller the cost incurred in doing so; (v) recover by offset or otherwise any and all expenses, costs, losses and damage paid, including, but not limited to, all consequential damages, incurred or suffered by Buyer as a result of such holding, return, replacement, correction or rejection of nonconforming Products; and/or (vi) terminate the Order in whole or part.
(c) Inspection and/or acceptance of any Products by Buyer shall not be deemed to alter or affect the obligations of Seller or the rights of Buyer under applicable warranties. Buyer’s failure to inspect any Products shall neither relieve Seller from responsibility for conformity of the same with the Order, nor impose any responsibility on Buyer for such conformity.
(d) Counterfeit items or parts are strictly prohibited. Substitutions are only allowed with written consent.
9. WARRANTIES. (a) Seller warrants that all Products when delivered will: (i) conform to the requirements of the Order and all drawings, specifications, descriptions, samples and prototypes furnished or approved by Buyer; (ii) be free from defects in materials and workmanship; (iii) be merchantable, and, if furnished for a particular purpose known to Seller, fit for such purpose; and (iv) be free from defects in design to the extent they are not manufactured to detailed design specifications furnished by Buyer.
(b) Acceptance of any Products by Buyer shall not alter or affect the obligations of Seller or the rights of Buyer under these or any other applicable warranties. Without affecting any other rights or remedies available to Buyer, Seller shall, if Buyer shall request, promptly correct at no cost to Buyer any failure of any Products to comply with any applicable warranty. If Seller fails to make any requested, correction, Buyer may make such correction and Seller shall be liable to Buyer for any cost incurred.
10. TIMELY PERFORMANCE. Time is of the essence with regard to all aspects of Seller’s performance under the Order. If at any time it appears to Seller that it may not meet any required delivery or performance dates or deadlines for any reason, Seller shall immediately notify Buyer of the reasons for and estimated duration of the delay, and shall exert its best efforts to avoid or minimize the delay to the maximum extent possible. Buyer’s rights under this provision are in addition to all other available rights and remedies, including those arising, from any late delivery or performance by Seller.
11. ENFORCEMENT EXPENSES. Seller agrees to pay all of Buyer’s expenses incurred in enforcing Seller’s obligations under the Order, including reasonable attorneys’ fees, plus costs and disbursements, including expert witness fees, if, after Seller’s breach of the Order, enforcement is placed in the hands of an attorney or if Buyer finds it necessary to secure the services or advice of an attorney with regard to Buyer’s rights under the Order.
12. INSURANCE AND INDEMNITY. (a) Seller shall procure and maintain comprehensive general liability and product liability insurance and such other insurance with respect to the Products as Buyer may from time to time require, with such limits as are customarily maintained in Seller’s industry and adequate to protect Buyer from loss or liability (or with such other limits as may be specifically required by the Order). Such insurance coverage shall name Buyer as an additional insured. No such required insurance shall be cancelled, nor coverage under any required insurance reduced, except upon at lease thirty (30) days’ advance written notice to Buyer of such cancellation or reduction. Promptly after any request by Buyer, Seller shall have its insurer furnish Buyer a certificate of insurance evidencing its compliance with the foregoing requirements.
(b) Except to the extent any of the same are caused directly by the gross negligence of Buyer, Seller shall defend, indemnity and hold harmless Buyer, its parent, subsidiary and affiliate companies, and their respective successors, assigns, agents, employees, officers, directors and customers, and users of the Products, from and against any and all claims, losses, damages (including consequential damages) liabilities, costs, expenses (including reasonable attorney’s fees and expert witness fees) and disbursements arising out of: (i) any acts or omissions of Seller, in connection with the Order; (ii) any failure of Seller to perform its obligations under the Order; (iii) breach of any warranty of Seller contained in the Order; or (iv) all claims and proceedings alleging infringement of any United States or foreign patent, copyright or other proprietary right by or in connection with any of the Products.
13. TERMINATION AND SUSPENSION. Buyer may terminate or suspend the Order, in whole or in part without liability to Seller, if: (a) any Product is not delivered or performed by the time required under the Order; (b) Seller breaches any provision of or fails to perform any of its obligations under the Order; (c) Seller is or becomes insolvent or unable to pay its debts as they become due; (d) any bankruptcy or insolvency proceeding is commenced by or against Seller; or (e) application is made for appointment of a receiver or custodian for Seller or any of Seller’s property, or for an assignment for the benefit of Seller’s creditors. Any termination or suspension by Buyer shall be without prejudice to any claims for damages or other rights of Buyer against Seller.
14. LIENS. (a) Submission of any invoice shall constitute Seller’s warranty that all labor and material for the Products covered by such invoice have been paid for and, accordingly, that there are no outstanding liens for such labor and materials. If any lien, claim or action with respect to any of the Products or any other property of Buyer, arises or, in Buyer’s reasonable judgement is likely to arise, out of any nonpayment or other act or omission by Seller, Buyer may retain the amount it deems necessary to obtain the release or settlement of such lien, claim or action from amounts otherwise due to Seller hereunder, until such lien, claim or action is released or settled to Buyer’s satisfaction, or Buyer may pay any party asserting such claim, action or lien directly and deduct such payments from amounts due to Seller.
(b) Seller waives and relinquishes all liens and claims which Seller now has or may hereafter have arising out of the Order or performance of its obligations under the Order.
15. ASSIGNMENT AND DELEGATION. Seller shall not assign, delegate or subcontract the Order or any work or obligations under it without Buyer’s written consent. Any consent by Buyer to any delegation or subcontracting by Seller shall not in any way be construed to relieve Seller of any responsibility for full performance under the Order. Seller shall inform Buyer in writing prior to any assignment of rights to monies due or to become due to Seller under the Order.
16. COMPLIANCE WITH LAWS. Seller warrants that the Products and all of Seller’s and its employees’, agents’, representatives’, and subcontractors’ actions in connection with the Order have complied and will comply with all applicable federal, state and local laws, rules, regulations and orders, including, but not limited to, the Robinson‑Patman Act, the Fair Labor Standards Act, the Service Contract Act, the Occupational Safety and Health Act, Equal Employment Opportunity and Affirmative Action statutes and regulations, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, Civil Rights Act of 1991, Americans with Disabilities Act and related environmental statutes and regulations. All Products provided pursuant to the Order must meet or exceed the standards of all applicable governmental regulations.
17. SUCCESSORS AND JOINT PARTIES. The Order shall be binding on Seller and Buyer and their respective legal representatives, successors and assigns, and shall inure to the benefit of Seller and Buyer and Buyer’s legal representatives, successors and assign. If Seller is comprised of more than one legal entity, each such entity shall be jointly and severally liable to Buyer under the Order.
18. CONSISTENCY WITH OTHER CONTRACTS. Seller represents and warrants that: (a) there is no conflict between the Order or Seller’s obligation under any of its other obligations; (b) the Products furnished under the Order are and will at all times be covered by the most favorable commercial warranties Seller provides to any of its other customers for the same products and/or services purchased or ordered in the same or lesser quantities and under similar conditions of purchase; and (c) the price of the Products furnished under the Order does not exceed the price charged by Seller to any other customer for the same products and/or services in the same or lesser quantities and under similar conditions of purchase.
19. PUBLIC ANNOUNCEMENTS. Seller shall not advertise, publish or disclose any details of the Order, or the fact that Buyer has placed the order, without Buyer’s prior written consent, except as necessary to comply with any legally required provision of information to a governmental agency.
20. PATENTS AND COPYRIGHTS. (a) Seller will hold and save Buyer harmless from any demand which may be made on account of any patented invention used by Seller in executing the Order and will protect Buyer from any liability on account of the use thereof, by proper releases from patentees and by bond, if required by Buyer.
(b) Seller shall report to Buyer promptly and in reasonable written detail, each notice of claim of patent or copyright infringement related to the performance of the Order of which Seller has knowledge.
(c) In the event of any suit against the Owner and/or Buyer, or any claim against the Owner or Buyer made before suit has been instituted, on account of any alleged patent or copyright infringement arising out of the performance of the Order or out of the use or supply of any Products furnished hereunder, Seller shall (i) furnish the Owner and/or Buyer upon request, all evidence and information in the possession of Seller pertaining to such suit or claim and (ii) indemnify, defend and save the Owner and Buyer harmless from and against any and all liability, cost, damages and expense (including attorneys’ fees) incurred as a result of or arising out of any such suit or claim.
21. HAZARDOUS MATERIAL. Except with the prior written consent of Buyer, Seller shall not use any hazardous or toxic substances or materials in the course of furnishing the Products hereunder, and in any event, all materials required by the Order shall meet all applicable safety and health legal requirements, including without limitation the provision of a complete and accurate material safety data sheet when required by Buyer.
22. NOTICES. Notices and correspondence to Buyer from Seller relating to the Order must be addressed to Buyer at 1905 Westwood Ave., Richmond, Virginia 23227, or to such other address as Buyer may designate in writing from time to time, and notices and correspondences to Seller from Buyer may be addressed to Seller at its usual business or mailing address or to any address to which the Order is submitted.
23. NONWAIVER. Buyer’s failure at any time to enforce any provision of the Order shall not constitute a waiver of the same or any other provision, or prejudice Buyer’s right to enforce the same or any other provision at any subsequent time.
24. DISPUTES. Pending resolution of any dispute or litigation arising under or in relation to the Order, the parties shall proceed diligently with performance of their obligations under the Order. Seller’s performance under such circumstances shall be strictly in accordance with Buyer’s written instructions.
25. PARTIAL INVALIDITY. If any provision of the Order is or becomes illegal, invalid or unenforceable under present or future law, all other provisions shall nonetheless remain valid and enforceable.
26. PARAGRAPH HEADINGS. All paragraph headings herein are for convenience only and are in no way to be construed as a part of the Order or as a limitation of the scope of the particular section to which they refer.
27. GOVERNING LAW, VENUE AND LIMITATION PERIOD. The Order and the performance of the parties thereunder it shall be controlled and governed by the laws of the Commonwealth of Virginia. Any and all suits, claims, actions and causes of action, whether or not arising out of the Order, between the parties hereto shall only be brought in the Circuit Court of the City of Richmond, Virginia or the United States District Court for the Eastern District of Virginia. By acceptance of the Order, Seller irrevocably submits to the personal jurisdiction of such courts, which shall have the exclusive venue in any legal proceeding. Seller must file any suit, claim, action or cause of action against Buyer within one (1) year from the date when the suit, claim, action or cause of action accrued or same shall be waived and forever barred.