Standard Terms and Conditions
For Purchase Orders
1. Scope. Vendor acknowledges that COBRA has issued the Purchase Order because COBRA has entered into a contract with “Client” to construct of a portion of the “Project” identified on the Purchase Order, and that the materials furnished hereunder (the “Materials”) are intended for use in connection with and/or incorporation into the Project. If indicated on the Purchase Order, all Materials must be in compliance with Project plans, specifications, and the contract between COBRA and Client (collectively, the “Contract Documents”), all of which are incorporated herein insofar as they apply to the Materials. The Contract Documents take precedence in the event of an actual conflict with the Purchase Order.
2. Acceptance. Acceptance of the Purchase Order must be confirmed in writing within seven (7) days and is conditioned upon Vendor: (a) agreeing to furnish Materials at the price and quantity stated in the Purchase Order and in conformance with the Contract Documents; (b) assenting to these Terms and Conditions; and (c) binding itself to COBRA in the same manner as COBRA is bound to Client with respect to the Materials.
3. Payment. COBRA will pay Vendor the unpaid balance of the Purchase Order within five (5) business days after COBRA receives payment from Client for the same, unless other terms are stated on the Purchase Order. Notwithstanding the foregoing, COBRA’s receipt of payment from Client is an express condition precedent to Vendor’s right to receive payment from COBRA. COBRA may withhold payment otherwise due to protect COBRA from any costs, losses, damages, or liabilities, which in COBRA’s opinion it has incurred or it may incur as a result of to the Materials furnished by Vendor.
4. Timeliness. Time is of the essence in the Purchase Order. Failure to comply with the time requirements stated in the Contract Documents or in the Purchase Order constitutes a material breach by Vendor. Should Vendor fail to deliver suitable Materials as required, COBRA may, in addition to other legal remedies, attempt to purchase the Materials elsewhere and charge Vendor for any increase in price. Vendor is liable for all consequential damages and extra expenses, including liquidated damage, overtime, premium time, and extended overhead, that are incurred by or are assessed against COBRA as a result of Vendor’s delay in delivering the Materials.
5. Risk of Loss; Title; and Shipping. Vendor bears the risk or loss for the Materials until they are received by COBRA. Title to the Materials passes to COBRA upon the earlier of receipt of the Materials or when Vendor is paid. Unless otherwise stated on the Purchase Order, Vendor shall ship the Materials F.O.B. the Job Site via responsible carriers and procure suitable insurance to protect against loss during transit. If COBRA is responsible for freight charges, Vendor shall confirm rates prior to shipping.
6. Defective or Nonconforming Goods. Vendor is liable for all damages caused by providing defective or nonconforming Materials. COBRA reserves the right to inspect the Materials on or after the date on which they are furnished and may reject Materials that are not in conformance with the Purchase Order or the Contract Documents. In the event COBRA receives Materials with defects or nonconformities that are not apparent on initial examination, but later prove to be defective, nonconforming, or unacceptable, COBRA reserves the right to reject the Materials at a later time and require Vendor to replace them. Payment does not constitute acceptance of the Materials or a waiver of any claim by COBRA. Materials rejected or supplied in excess of quantities called for in the Purchase Order will be returned to Vendor at its expense.
7. Shop Drawings and Submittals. Vendor shall submit in a timely manner all shop drawings and submittals with respect to the Materials furnished as required by the Contract Documents and for approval prior to delivery. By submitting shop drawings and samples, Vendor warrants that it has (1) performed all required testing, (2) checked and coordinated each shop drawing and sample with the requirements of the Contract Documents, and (3) has concluded the Materials will satisfy the Contract Documents. Notwithstanding the dimensions in the Contract Documents, Vendor shall take and/or verify with COBRA all measurements necessary to ensure that the Materials match, fit, and are compatible with the Project and other contiguous work; Vendor is responsible for all damages, including reworking or providing new Materials, resulting from its failure to take and/or verify such measurements.
8. Liens. Vendor will save and keep the Project and the lands upon which it is situated free from liens related to the Purchase Order. If, following ten (10) days’ notice from COBRA, Vendor fails to remove any such lien by posting a bond or otherwise, COBRA may retain sufficient funds, out of any money due or thereafter to become due Vendor under the Purchase Order or any other agreement between COBRA and Vendor, to satisfy said lien(s) and reimburse COBRA for any costs in doing so. When requested by COBRA and as a condition precedent to payment, Vendor shall provide, in a form satisfactory to COBRA, partial or final lien claim waivers and affidavits from Vendor applicable to the Materials for which Vendor seeks payment. Vendor’s signature on periodic lien and claim waivers constitutes an agreement by Vendor to defend, indemnify, and hold harmless COBRA, Client, their respective sureties, the Project Owner, and the Project from any claim which arises out of or is related to labor, services, material, or equipment covered by the applicable lien and claim waiver.
- Vendor warrants the Materials are: (a) merchantable, (b) of good quality, (c) free from faults and defects, (d) fit and sufficient for the purpose intended, (e) free and clear of all liens, security interests, or other encumbrance, (f) not subject to a third party’s claim of infringement, including patent and trademark rights, and (g) in conformance with all requirements of the Purchase Order and the Contract Documents. The warranties in this paragraph are in addition to any other right, warranty, or remedy imposed by law or the Contract Documents and will survive delivery, inspection, payment, or acceptance of the Project.
- Vendor is responsible for satisfying any warranty obligations in the Contract Documents related to the Materials. Specified warranties/guarantees for materials shall be made out to either Owner or COBRA, at Cobra’s option. If no guarantee or warranty applicable to the Materials is required in the Contract Documents, then Vendor’s warranty as described herein shall extend for a minimum period of two (2) years from completion of the Project. At COBRA’s election, Vendor shall replace promptly and without charge to COBRA (a) any defective Materials that fail to conform to the requirements of the applicable Contract Documents, and (b) all other work damaged or destroyed thereby.
- Vendor shall defend, indemnify, and hold harmless COBRA and its affiliates, officers, directors, and employees from and against all claims, damages, losses and expenses, including attorney’s fees, arising out of or resulting from: (a) defects in the Materials; (b) Vendor’s failure to perform its obligations under the Purchase Order, the Contract Documents, and these Terms and Conditions; (c) accidents attributable to Vendor; and (d) damages caused by Vendor. However, if negligence is an element of the claim or damages, then: (a) Vendor’s obligations under this paragraph do not apply where the damages were caused by the sole negligence of the indemnitee(s); and (b) in the case of concurrent negligence of Vendor and an indemnitee(s), Vendor’s obligation under this paragraph applies only to the extent of its own negligence. With respect to the Materials furnished by Vendor, the duration and extent of Vendor’s obligation to COBRA under this paragraph is equal to COBRA’s obligation to Client under the Contract Documents.
- Vendor shall pay all royalties and licensee fees associated with the Materials and shall defend, indemnity and hold harmless COBRA, Client, Owner, and any of their respective officers, directors, or employees from and against suits, demands, claims, losses, costs, or expenses related to patent, trademark, or copyright infringement associated with the Materials.
11. Termination for Cause. If Vendor fails to furnish the Materials in accordance with the Purchase Order and in a timely manner, COBRA may declare Vendor in default. If Vendor fails to cure such default within three (3) days after receiving written notice of such default, COBRA may, without prejudice to any other right or remedy, terminate the Purchase Order. In the event of such termination, Vendor is entitled to no further payment except as provided in this paragraph. In the event the unpaid balance of the Purchase Order, after deduction of all claims that COBRA may have against Vendor, exceeds the total cost of procuring suitable replacement materials, COBRA will pay said excess to Vendor in accordance with Paragraph 3. In the event the total costs of procuring suitable replacement materials exceeds any unpaid balance, Vendor shall promptly pay such difference to COBRA.
12. Termination for Convenience. COBRA reserves the right to terminate all or a portion of the Purchase Order for COBRA’s convenience. In the event of a termination for convenience, Vendor shall immediately stop all deliveries and fabrication of Materials. Vendor will be paid for Materials that have been furnished or incorporated into the Project to the extent COBRA receives payment from Client or Owner for the same. COBRA is not liable to Vendor for any other costs or amounts, including prospective profits, unabsorbed overhead, re-stocking, or similar charges unless COBRA receives payment for the same.
13. Dispute Resolution.
- In the event there is a dispute or claim made by a third party against COBRA related to the Materials, Vendor agrees to participate and be bound to the same dispute resolution procedure and forum as COBRA is bound under the terms of the Contract Documents. If Vendor does not participate, COBRA may settle such claims pertaining to the Materials as COBRA, acting in good faith, deems appropriate, and Vendor shall reimburse COBRA for the settlement amount and all its costs, including reasonably attorneys’ fees.
- Disputes or claims between COBRA and Vendor, not involving other parties, will be resolved through arbitration, in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, unless the parties agree otherwise. The prevailing party in any arbitration or litigation is entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees. The venue for any such arbitration will be in Spokane County, Washington. For the purposes of this paragraph, Vendor irrevocably submits to personal jurisdiction in Spokane County, Washington.
14. Confidential Information. All non-public, confidential or proprietary information of COBRA, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by COBRA to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Purchas Order is confidential, solely for the use of performing the Purchase Order and may not be disclosed or copied unless authorized by COBRA in writing. Upon COBRA’s request, Vendor shall promptly return all documents and other materials received from COBRA. COBRA may seek injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party.
15. Affirmative Action and Equal Employment Opportuntiy. COBRA is an equal opportunity employer and does not discriminate on the basis of race, gender, ethnicity, national origin, religion, sexual orientation, age, gender identity, marital or parental status, veteran status, disability, or other protected classifications. On federal projects, Vendor may qualify as a subcontractor, in which case the following provisions will apply to Vendor.
- Vendor shall comply with Laws and orders prohibiting discrimination on the basis of race, gender, ethnicity, national origin, religion, sexual orientation, age, gender identity, marital or parental status, veteran status, disability, or other protected classifications. Vendor shall comply with any applicable requirements of and Executive Order 11246 (as amended) and its implementing regulations at 41 CFR 60-1, 2, 3 and 4, which prohibit discrimination based on race, gender, ethnicity, national, origin, or religion and require affirmative action and Equal Employment Opportunity reporting to promote equal opportunity. The equal opportunity clauses required by 41 CFR 60-1.4 are hereby incorporated by reference.
- Vendor shall abide by the following regulations as though it is a subcontractor:
- 41 CFR 60-300.5(a) – This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
- 41 CFR 60-741.5(a) – This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
16. General Provisions.
- Relationship. Vendor is an independent contractor and nothing contained herein is to be construed as creating an agency or employment relationship between COBRA and Vendor.
- Compliance with Law. Vendor warrants it is in compliance with and will comply with all applicable laws, regulations, and ordinances and has and will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order.
- Safety. Should Vendor’s presence at the Project site be necessary, Vendor shall procure all insurance required by the Contract Documents and abide by COBRA’s Safety Program and Site Specific Safety Plan, copies of which will be made available if necessary.
- Governing Law. All matters arising out of or relating to the Purchase Order will be governed by and construed in accordance with the internal laws of the State of Washington without giving effect to its conflict of law provisions.
- Assignment. Vendor may not assign the Purchase Order in whole or in part without the prior written consent of COBRA. All assignees must agree to these Terms and Conditions.
- Notice. All required notices, requests, claims, or demands must be in writing and delivered in person, by first class or certified mail, by facsimile, or by electronic mail to the address listed on the face of the Purchase Order. Notice so given is effective upon receipt or 3 days after mailing, whichever occurs first.
- Final Agreement. The Purchase Order and these Terms and Conditions constitute the entire agreement between Vendor and Cobra and supersede all prior agreements and understandings, including without limitation any price quotes or terms proposed by Vendor. No amendment or variation to the Purchase Order or these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of COBRA. Terms and conditions on Vendor’s invoice, bills of lading, order acknowledgements, or other forms are objected to and rejected as material alterations to these Terms and Conditions.
- Severability. In the event a court or arbitrator declares one or more of these Terms and Conditions void, illegal, or unenforceable, the offending provision will be struck and the remaining provisions will remain enforceable.
END OF TERMS AND CONDITIONS