Sales and Service
- Agreement. Unless otherwise agreed in a written document signed by the General Manager of BuildingPoint West, LLC (“BuildingPoint”), these Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, technology and parts) (“Goods”) and services (“Services”) from BuildingPoint by any individual or entity that purchases such Goods or Services from BuildingPoint (“Client”). BuildingPoint hereby rejects the terms of any purchase order or other document submitted by Client, unless the document is signed by the General Manager of BuildingPoint. The placing of an order with BuildingPoint or the receipt or acceptance of Goods or Services by Client constitutes Client’s acceptance of these Terms exactly as written.
- Order and Delivery of Goods or Services. All orders for Goods or Services are subject to credit approval and final acceptance by BuildingPoint in its sole discretion. If Client requests partial shipment of its order for Goods or Services, payment for the partial order must be made pursuant to Section 6 below. Client acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. BuildingPoint will use commercially reasonable efforts to meet estimated delivery dates and shall keep Client advised of the status of delivery, but BuildingPoint shall have no liability for any loss associated with delay in the delivery of Goods. In addition, BuildingPoint shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
- Cancellation. Client may cancel all or part of any purchase order for Goods once a purchase order is issued to BuildingPoint only if written notice of cancellation is received by BuildingPoint at least thirty (30) days before the scheduled delivery date of the Goods. In such instance, Client shall pay for any special work or customization performed by BuildingPoint or its suppliers prior to BuildingPoint’s receipt of the written cancellation notice.
- Returns. Returns require prior written authorization from BuildingPoint. No returns, except for Goods needing repair, will be accepted unless Client notifies BuildingPoint of its request to return within seven (7) days of Client’s receipt of Goods, and BuildingPoint receives the returned Goods within thirty (30) days from Client’s receipt of Goods. Any returned Goods must be new and in resalable condition. Returns must be shipped pre-paid by Client, unless otherwise approved in writing by the General Manager of BuildingPoint. BuildingPoint is not responsible for damage in shipment. Client must enclose a packing slip or note containing its name, address, phone number, and description of the reason for the return. All returns are subject to a minimum 15% restocking charge.
- Pricing. Unless otherwise set forth on a written quote issued by BuildingPoint (“Quote”), the price for Goods shall be BuildingPoint’s list price for such Goods on the date such Goods are delivered to Client. Unless otherwise set forth on a Quote, the labor rates for Services shall be BuildingPoint’s standard labor rates for the applicable type of Service (field rates, shop rates, mine rates or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Client will promptly pay to BuildingPoint any taxes that BuildingPoint is required to collect with respect to the purchase of Goods or Services, including, but not limited to, value added, personal property, sales, use, and similar taxes (“Taxes”). For any Taxes from which Client claims exemption, Client shall provide BuildingPoint with properly completed exemption certificates and any documentation needed to validate the exemption. If Client fails to provide an appropriate exemption certificate and supporting documentation, as determined by BuildingPoint, Client will remain liable for all such Taxes and will indemnify BuildingPoint for any liability related to the same. Pricing and risk of loss for purchased Goods is FOB BuildingPoint’s site, unless purchased Goods are shipped to Client directly from the manufacturer, in which case pricing and risk of loss is FOB factory. Any claims for shortages, damages, or delays in shipment must be made by Client directly to the carrier.
- Payment Terms. For Clients with an open credit account with BuildingPoint, payments are due Net 30 from date of invoice. For Clients who do not have an open credit account with BuildingPoint, payment is due upon delivery of Goods or completion of Services. BuildingPoint may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. If Client fails to pay for Goods or Services as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay BuildingPoint all reasonable attorneys’ fees and collection costs incurred by BuildingPoint. In addition to any other right of set-off or recoupment BuildingPoint has under applicable law, Client agrees that, with respect to any amounts due from Client or Client’s affiliates to BuildingPoint or BuildingPoint’s affiliates, BuildingPoint and its affiliates may set-off such amounts against any amounts owing to Client or Client’s affiliates. If Client requests customization of Goods, Client agrees to pay all parts and labor costs BuildingPoint incurs in customizing the Goods, regardless of whether or not Client completes the purchase of the customized Goods. Client must pick up its equipment from BuildingPoint’s facility within two (2) business days after notification from BuildingPoint of completion of Services. If Client’s equipment is not picked up within two (2) business days after such notification, Client will be liable for storage charges of up to $300.00 per day from the date of completion of Services until Client’s equipment is picked up. Pursuant to A.R.S. § 33-1023, BuildingPoint may sell Client’s equipment if such equipment remains in BuildingPoint’s possession after thirty (30) days and any amounts owed remain unpaid.
- Title and Security Interest. BuildingPoint retains title to the Goods until Client performs all of its obligations under these Terms. BuildingPoint retains a security interest in the Goods, including all accessions to and replacements of them, to secure performance of all Client’s obligations under these Terms. If Client fails to perform its payment obligations pursuant to this Agreement, in addition to all other remedies allowed at law or in equity, BuildingPoint and its agents may, without notice or legal process, enter into any job, building, or place where the Goods may be, and repossess the Goods.
(a) New Goods. If Client is purchasing new Goods from BuildingPoint, Client acknowledges that (i) BuildingPoint is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, BuildingPoint will pass through to Client the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions and exclusions set forth therein. In certain circumstances, Client may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Client at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product. BuildingPoint’s liability during the applicable manufacturer’s warranty period is limited to servicing any Goods returned to BuildingPoint by Client for that purpose, and to replacing any defective part, whether the defective part is returned or not, all in accordance with and subject to the manufacturer’s warranty. The warranties described herein apply only to Client and are non-transferable; BuildingPoint shall have no liability to Client’s successors, assigns, or subsequent purchasers. Warranty repaired Goods will be returned to Client by pre-paid surface transportation, unless Client specifically authorizes return by air shipment and agrees to pay the cost.
(b) Used Goods. If Client is purchasing used Goods from BuildingPoint, such Goods shall be sold in “AS IS, WHERE IS, WITH ALL FAULTS” condition, unless otherwise expressly set forth in a bill of sale signed by the General Manager of BuildingPoint.
(c) Services. If Client is purchasing Services from BuildingPoint, the Services will be completed in a good and workmanlike manner and will meet the manufacturer’s specifications at the time the Services are completed. BuildingPoint makes no further warranty, express or implied, with respect to Services once the Goods on which the Services have been performed have been accepted by Client. If the replacement parts used by BuildingPoint in connection with the provision of Services include a manufacturer’s warranty, BuildingPoint will pass such warranty through to Client to the extent permitted by the terms of the manufacturer’s warranty. BuildingPoint’s warranty for Services will be voided in the event of any of the following: misuse or abuse of Goods by Client, subsequent repairs performed by Client or vendors other than BuildingPoint, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer’s standards, or failure to maintain fluid levels recommended by the manufacturer), or damage due to theft, vandalism or casualty.
(d) WARRANTY DISCLAIMER. BuildingPoint makes no warranty, express or implied, with respect to any Goods or Services other than the foregoing warranties, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose or any implied warranties that may arise from the course of dealing between the parties. To the maximum extent permitted by law, all such warranties are hereby disclaimed by BuildingPoint and waived by Client.
- Specifications. BuildingPoint reserves the right to change specifications of or discontinue Goods at any time. BuildingPoint has no obligation to retain previous specifications or to incorporate modifications on Goods previously sold.
- Use of Data. Client must treat as confidential all drawings and data submitted by BuildingPoint pertaining to price, size, and design. Client may not give or show such drawings or data to others under any circumstances, unless specifically approved by the General Manager of BuildingPoint in writing. All such drawings and data remain the property of BuildingPoint.
- Indemnification. Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent acts or omissions, subject to the limitations set forth in Section 12 below.
- Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, BuildingPoint’s maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to BuildingPoint for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Goods and/or Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services or delivery of the Goods to Client.
- Privacy Statement. Client consents to the collection, use, retention, and disclosure of information by BuildingPoint and its parent, subsidiary and affiliated entities (collectively, “BuildingPoint Entities”) in accordance with BuildingPoint’s Privacy Statement, which is found at https://buildingpoint.wpengine.com/privacy-policy/ (as such statement may be revised from time to time), and agrees that such information may be accessed by the BuildingPoint Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
- Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Maricopa County, Arizona.
- General Provisions. Client may not assign Client’s rights or obligations hereunder without BuildingPoint’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and BuildingPoint. BuildingPoint is an EEO/Affirmative Action Employer. Client warrants that the invoiced Goods or Services will be used for business or agricultural purposes and not for personal, family or household purposes.
1. Agreement. Unless otherwise agreed in a written document signed by the General Manager of BuildingPoint West, LLC(“BPW”), these Rental Terms and Conditions (“Terms”) govern the rental of all equipment from BPW (“Equipment”) by any individual or entity that rents such Equipment from BPW (“Client”) and are incorporated into each of Client’s Rental Agreements for Equipment from BPW (each, a “Rental Agreement”). BPW hereby rejects the terms of any purchase order, rental agreement or other document submitted by Client, unless the document is signed by the General Manager of BPW. The issuance of a purchase order for rental of Equipment from BPW, or the receipt, acknowledgement or acceptance of Equipment for rental by Client constitutes Client’s acceptance of these Terms exactly as written. BPW reserves the right, in its sole discretion, to modify or replace any of these Terms at any time, and such modifications or replacements shall apply to all rentals of Equipment from BPW after the date of such modification or replacement. It is Client’s responsibility to review the Terms each time Client rents Equipment from BPW.
2. Title. BPW is and shall remain the owner of the Equipment. Client will not acquire any equity or ownership interest in the Equipment by making rental payments or performing repairs. Client will not place any liens on the Equipment and will not allow third parties to encumber BPW’s title to the Equipment. Rental rates, in compliance with A.R.S. § 44.1799.41, include an amount sufficient to cover personal property tax due in connection with the Equipment.
3. Rental Term and Rental Period. As to each piece of Equipment, the “Rental Term” is the time period for which Client has ordered such Equipment, as specified on the Rental Agreement. As to each piece of Equipment, the “Rental Period” is the time period that commences on the delivery of the Equipment to Client and ends upon its return to BPW’s premises. Client shall pay rent on the Equipment at the rates set forth on the Rental Agreement for the entire Rental Period (and during repairs to Equipment returned to BPW in a damaged or excessively worn condition as described in Section 7 below). No allowances will be made for Saturdays, Sundays, holidays, transit time, or for any period Equipment is not in actual use.
4. Payment Terms. For Clients with an open credit account with BPW, payments are due Net 30 from date of invoice. For Clients who do not have an open credit account with BPW, payment is due upon delivery of Equipment. BPW may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Equipment, until receipt of payment. If Client fails to pay for Equipment as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay BPW all reasonable attorneys’ fees and collection costs incurred by BPW. In addition to any other right of set-off or recoupment BPW has under applicable law, Client agrees that, with respect to any amounts due from Client or Client’s affiliates to BPW or BPW’s affiliates, BPW and its affiliates may set-off such amounts against any amounts owing to Client or Client’s affiliates.
5. Disclaimer of Warranties. By receiving the Equipment, Client acknowledges the Equipment to be in good, safe and serviceable condition, and Client accepts the Equipment “AS IS” regardless of defects, latent or otherwise. BPW makes no warranty, express or implied, with respect to the Equipment, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. To the maximum extent permitted by law, all such warranties are hereby disclaimed by BPW and waived by Client. Client’s sole remedy shall be the termination of the rental charges at the time of failure or discovery of defect, provided Client returns the Equipment to BPW’s premises within 24 hours of the failure or discovery of defect.
6. Return of Equipment. Upon expiration of the Rental Term set forth in the Rental Agreement (unless BPW agrees in writing to an extension) or upon demand from BPW prior to expiration of the Rental Term, Client shall return the Equipment to BPW’s premises during BPW’s regular business hours. Client shall be liable for all damages to, or loss of, the Equipment occurring because it was not returned within BPW’s regular business hours. If the Rental Agreement for the Equipment states that BPW will pick up the Equipment, Client will be responsible for all loss or damage to the Equipment until BPW actually picks up the Equipment.
7. Damaged Equipment; Reasonable Wear and Tear: If the Equipment is returned in a damaged or excessively worn condition, Client shall pay BPW the reasonable cost of repair and also shall pay rental on the Equipment at the regular rental rate until repairs have been completed. Reasonable wear and tear means only the normal deterioration of the Equipment caused by ordinary and reasonable use. Repairs to the Equipment must be made by BPW. Client shall not repair Equipment or engage a third party to perform the repairs.
8. Insurance. Client shall maintain reasonable insurance, including physical damage insurance, on the Equipment at all times.
9. Limitation of Liability; Indemnification. In no event shall BPW be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity for any special, incidental, indirect, punitive, exemplary, or consequential damages, including but not limited to lost profits, downtime or loss of third party contracts, regardless of whether or not BPW is advised of the possibility of such damages. In addition, BPW’s maximum aggregate liability for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to BPW for rental of the Equipment to which such liability relates. Client shall indemnify, defend and hold harmless BPW, its affiliated companies, and their respective owners, officers and employees, for, from and against any and all threatened or actual claims, losses, liabilities, damages, costs or expenses (including attorneys’ fees, expert witness fees, costs and expenses) of any nature whatsoever arising out of or related to: the operation, possession, use, failure or maintenance of the Equipment while on rent to Client; the breach of any provision of these Terms by Client; personal injury, death or property damage or loss of any nature whatsoever arising from or related to the Equipment while on rent to Client; the negligence or willful misconduct of Client; any violation by Client of applicable laws; and claims by Client’s employees related to the Equipment.
10. Default. Client is in default if (a) Client fails to pay any installment of rent or other payment to BPW when due; (b) Client fails to return the Equipment at the end of the Rental Term or upon demand; (c) Client fails to perform or observe any condition of this or any other agreement with BPW; (d) Client ceases doing business as a going concern, makes an assignment for the benefit of creditors, files a petition in bankruptcy or consents to or acquiesces in the appointment of a trustee, receiver or liquidator of all or any substantial part of its assets or properties; (e) Client abuses, neglects or attempts to remove, sell, transfer, encumber, part with possession of or sublease the Equipment or any item thereof; or (f) BPW in good faith deems itself insecure.
11. Remedies; Retaking of Equipment. BPW reserves all rights and remedies available at law or under contract in the event of a default by Client under these Terms or a Rental Agreement and may, at its option, demand that Client immediately deliver the Equipment to BPW’s premises at Client’s expense. If the Equipment is not returned at the end of the Rental Term or for any reason it becomes necessary for BPW to retake the Equipment to protect it from loss or damage, BPW and its agents may, without notice or legal process, enter into any job, building, or place where the Equipment may be and repossess same by using all force necessary to do so. In the event of default, Client waives all rights to a prior judicial hearing, any further right to possession of the Equipment and all claims for injuries, damages or loss arising out of the repossession of the Equipment. Client shall pay all costs and expenses incurred by BPW in retaking the Equipment.
12. Compliance with Laws and Regulations; Hazardous Materials. Client shall not abuse, harm or improperly operate the Equipment. Client, at its sole expense, shall comply with all laws and regulations applying to the use, operation or possession of the Equipment. Client warrants and represents that it shall return the Equipment free from all toxic, hazardous or regulated materials, as those terms may be defined in applicable federal, state and local regulations and laws. Client shall indemnify, defend and hold BPW harmless from any loss, claim or damage that may arise out of Client’s breach of these representations and warranties.
13. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict of law provisions. The parties agree that the exclusive jurisdiction and venue for any proceedings at law or in equity will be in the state or federal courts located in Maricopa County, Arizona.
14. Privacy Statement. Client consents to the collection, use, retention and disclosure of information by BPW and its parent, subsidiary and affiliated entities (collectively, “BPW Entities”) in accordance with BPW’s Privacy Statement, which is posted at https://buildingpoint.wpengine.com (as such statement may be revised from time to time), and agrees that such information may be accessed by the BPW Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
15. Miscellaneous. Client may not assign Client’s rights or obligations hereunder without BPW’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and BPW. BPW is an EEO/Affirmative Action Employer.
1. BuildingPoint West, LLC (“BPW”) is issuing a Purchase Order to the vendor identified thereon (“Vendor”) to purchase certain goods and/or services as more particularly described thereon (the “G&S”). These Purchase Order Terms and Conditions (“Terms”) govern, and are an essential part of, the Purchase Order between BPW and Vendor. For ease of reference, the Purchase Order and the Terms are collectively referred to herein as the “PO.”
2. The PO governs the rights and liabilities of BPW and Vendor and is the sole and exclusive agreement of the parties with respect to the G&S (unless a separate agreement relating specifically to the G&S is executed by the General Manager of BPW). BPW hereby rejects the terms of any document submitted by Vendor; these Terms may not be modified by any document issued by Vendor or by the parties’ course of dealing, custom or usage, but only by an agreement signed by the General Manager of BPW. These Terms shall apply even where BPW accepts delivery of G&S without reservation, having knowledge of conflicting or deviating Vendor terms and conditions. Acknowledgement, acceptance, shipment or performance of any part of the PO by Vendor constitutes acceptance of the entire PO, including these Terms, exactly as written.
3. If the PO is for procurement of ongoing G&S from Vendor over a period of time, these Terms shall apply to all such G&S and invoices for such G&S shall be submitted to BPW not more frequently than once every thirty days. Payment terms for undisputed amounts are net thirty days from BPW’s acceptance of the G&S or receipt of invoice, whichever is later. BPW shall have the right to terminate the PO, or any portion thereof, without cause on ten days’ notice. The applicable PO number must appear on all invoices, packages and correspondence pertaining to the PO. Whether or not separately stated on Vendor’s invoice or on the PO, Vendor shall be responsible for remitting to the appropriate taxing authority any state or local transaction privilege tax and/or sales tax related to the G&S provided by Vendor. Any other federal, state, or local taxes of any type assessed on Vendor due to the provision of the G&S shall be the sole responsibility of Vendor.
4. Vendor must pack all goods delivered pursuant to the PO in accordance with good commercial practices. Unless otherwise specifically provided on the PO, Vendor must ship goods in the most cost-effective manner, FOB BPW’s designated delivery point. Time is of the essence with respect to delivery or completion of the G&S, as applicable. If the G&S are not delivered or completed by the date stated in the PO, BPW will have all rights and remedies available at law and in equity.
5. All G&S are subject to inspection, testing, approval and acceptance by BPW within a reasonable time after delivery or performance. BPW’s payment of an invoice shall not constitute acceptance of the applicable G&S, and BPW’s inspection, testing, approval, acceptance or use of the G&S shall not affect Vendor’s obligations and warranties herein. BPW may reject any G&S that are, in BPW’s judgment, defective and/or do not conform to the terms or specifications of the PO. If G&S are non-conforming, BPW will have all rights and remedies available at law and in equity.
6. Vendor shall not invoice BPW for any charges in excess of those set forth on the PO. BPW may request changes, additions, or deletions to the PO by notice to Vendor. If such changes, additions or deletions would require additional charges or alter the delivery or completion schedule, Vendor must obtain prior written approval from BPW before proceeding with the changes or BPW will have no obligation to pay such additional charges or accept such schedule alterations. BPW shall have the right to audit Vendor records related to the G&S Vendor is providing to BPW.
7. Vendor warrants to BPW, its successors, assigns, employees, agents and clients, that all G&S will: (a) conform to the terms of the PO and all applicable samples, drawings, standards, specifications, performance criteria and other descriptions; (b) be merchantable, safe and appropriate for the purpose for which such G&S are normally used; (c) not infringe upon the rights of any third parties; (d) comply with all applicable federal, state and local laws and regulations; (e) not be subject to any liens, encumbrances, security interests, or other third party claims (Vendor must deliver written lien releases if requested by BPW); (f) be new (unless otherwise noted on the PO); and (g) with respect to services, be performed diligently, in a good and workmanlike manner in accordance with the highest standards in Vendor’s trade or industry.
8. Before commencing work for BPW, Vendor must obtain, and must maintain in effect, workers’ compensation insurance (in accordance with applicable law), employer’s liability insurance (not less than $1,000,000 per person, per accident), automobile liability insurance (owned, non-owned and hired, with a combined single limit of $1,000,000), and general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate), all in accordance with BPW’s standard insurance requirements. Vendor’s required policies shall be primary, and any insurance maintained by BPW shall be excess and non-contributory. Vendor must provide an insurance certificate to BPW evidencing all of the foregoing before commencing work for BPW. Additionally, Vendor’s required policies must be endorsed to name BPW parties as additional insureds and to include waivers of subrogation, and such endorsements shall be provided to BPW along with the insurance certificate. BPW’s standard insurance requirements do not limit or qualify the liabilities, obligations, warranties or indemnities of Vendor hereunder.
9. Vendor shall defend, indemnify, and hold harmless BPW, its subsidiaries and affiliated companies, and their respective owners, officers, directors, employees and agents for, from and against all claims, liabilities, losses, demands, penalties, forfeitures, suits, damages, judgments, costs and expenses, including attorneys’ fees, expert witness fees and costs arising out of or related to the PO, the G&S or the Vendor’s actions or inactions related to the same. In no event shall BPW be liable for any special, incidental, indirect, punitive, exemplary or consequential damages, regardless of whether or not BPW was advised of the possibility of such damages.
10. In the event of any breach of the PO by Vendor, BPW shall have all rights and remedies available at law and in equity in addition to any rights or remedies specifically described herein, including but not limited to one or more of the following: (a) BPW may reject non-conforming G&S, and Vendor shall refund the price of such non-conforming G&S and all costs related thereto; (b) BPW may require Vendor to replace or correct any such non-conforming G&S at no additional cost to BPW; (c) BPW may replace any non-conforming G&S from another source, and/or take corrective action with respect to any non-conforming G&S, and obtain reimbursement from Vendor for all costs incurred by BPW in connection therewith; and (d) BPW may terminate the PO.
11. All information BPW provides to Vendor that is not available to the general public, all specifications and documents prepared by Vendor in connection the PO, and all other non-public information that Vendor obtains as a result of the PO constitute confidential information of BPW. Without prior written consent by a General Manager of BPW, Vendor shall not (a) disclose or use BPW’s confidential information for any purpose other than performing the PO; (b) announce, publicize or discuss with third parties the subject matter of the PO; or (c) include BPW’s name or trademarks in any marketing materials. All specifications, drawings, schematics, technical information, data, tools, test equipment, and other materials furnished by BPW to Vendor shall remain BPW’s property. All specifications, drawings, schematics, technical information, data, tools, test equipment, goods and other materials, and work product and intellectual property rights in all of the foregoing, generated in whole or in part by Vendor in relation to the PO (“Property Rights”), will be considered work for hire and will constitute BPW’s sole and exclusive property, whether delivered by Vendor to BPW or not, and shall be provided to BPW immediately upon request. If any Property Rights are not considered works for hire owned by BPW by operation of law, Vendor hereby assigns all right, title, and interest in such Property Rights, including, but not limited to, all copyrights in such Property Rights, to BPW.
12. Unless exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the contractor and subcontractor shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
13. Vendor must abide by all BPW’s rules and regulations while on BPW’s premises and while fulfilling its obligations under the PO, including, but not limited to, all rules and regulations related to safety, health and hazardous materials. Prior to bringing any hazardous materials onto BPW’s premises, Vendor shall provide written notice to BPW and provide BPW with material safety data sheets and any other documentation reasonably requested by BPW.
14. The PO is to be construed and interpreted in accordance with Arizona law, without giving effect to its conflict of law provisions. Vendor irrevocably consents to exclusive jurisdiction and venue in Maricopa County, Arizona. The PO shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted. Vendor shall not assign or subcontract the PO, or any portion thereof, without the prior written approval of the General Manager of BPW, and such approval may be withheld in BPW’s sole and absolute discretion. Any attempted assignment or subcontract in violation of the foregoing shall be void and of no force and effect. Vendor acknowledges and agrees that it is an independent contractor with respect to BPW and that its employees, representatives and any permitted subcontractors are not agents or employees of BPW, regardless of where they perform services. If any provision of the PO is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the validity of the remaining provisions. If BPW fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder, such failure shall not constitute a waiver of such term, condition, right or privilege. No provision of the PO may be waived or modified, except in a writing signed by the General Manager of BPW. The PO is non-exclusive; BPW reserves the right to obtain like goods and/or services from other sources.
BPW is an EEO/Affirmative Action Employer.
BPW is committed to working with and providing reasonable accommodation to individuals with disabilities. If, because of a medical condition or disability, you need a reasonable accommodation for any part of the employment process, please e-mail firstname.lastname@example.org or call (480) 633-5440 and let us know the nature of your request and your contact information.