J. F. Ahern Co.
855 Morris Street, P.O. Box 1316
Fond du Lac, WI 54936-1316
(920) 921-9020 p • (920) 921-8632 f
www.jfahern.com

TERMS AND CONDITIONS OF PURCHASE

NOTE:

THIS OFFER TO PURCHASE BECOMES A CONTRACT ONLY WHEN ACKNOWLEDGED IN WRITING OR OTHERWISE ACCEPTED BY PURCHASER. THE FURNISHING OF ANY PRODUCT OR SERVICE OR THE ACCEPTANCE OF ANY PAYMENT MADE BY PURCHASER UNDER THIS OFFER CONSTITUTES AN UNQUALIFIED ACCEPTANCE BY SELLER OF THIS PURCHASE ORDER AND ALL OF THESE TERMS AND CONDITIONS OF PURCHASE. PURCHASER OBJECTS TO THE PRIOR OR SUBSEQUENT INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY SELLER IN ANY QUOTATION, PROPOSAL, ACKNOWLEDGMENT, INVOICE OR OTHER FORM, CORRESPONDENCE OR COMMUNICATION WHATSOEVER; AND A CONTRACT WILL RESULT ONLY ON THE BASIS OF THIS PURCHASE ORDER, INCLUDING THESE TERMS AND CONDITIONS OF PURCHASE. IF THIS ORDER RESPONDS TO SELLER’S QUOTATION OR PROPOSAL, SELLER AGREES THAT THE TERMS OF THIS PURCHASE ORDER, INCLUDING THESE TERMS AND CONDITIONS OF PURCHASE, SHALL SUPERSEDE ANY TERMS AND CONDITIONS CONTAINED IN THE QUOTATION OR PROPOSAL. PURCHASER’S ACCEPTANCE OF ANY QUOTATION OR PROPOSAL BY SELLER IS EXPRESSLY CONDITIONAL ON SELLER’S ASSENT TO THE ADDITIONAL AND DIFFERENT TERMS CONTAINED IN THIS PURCHASE ORDER, INCLUDING THESE TERMS AND CONDITIONS OF PURCHASE.

1. Time of delivery of this Purchase Order is of the essence, and Purchaser reserves the right to cancel, without cancellation charges, all or any part of this Purchase Order if not filled within the specified time. Exercise of such right of cancellation shall not be deemed a waiver of any other right reserved to the Purchaser herein, or by law, for any delay or failure to deliver as specified. If delivery is delayed by a force majeure event, Seller shall give written notice to Purchaser no later than five (5) days after such force majeure event and such notice shall include a description of the particulars and the estimated duration of the force majeure event. The time for Seller’s performance may be extended for a period equal to the time such performance is delayed, but such relief shall be conditioned upon Seller’s initial and continued satisfaction of notice, reporting, remedy and mitigation requirements of this Purchase Order. Under no circumstances shall Seller be entitled to an adjustment of the Purchase Order price by virtue of the force majeure event. For purposes of this Purchase Order, “Force Majeure Event” means any cause beyond the reasonable control of, not reasonably foreseeable by, and not due to the fault of the Seller, including, but not limited to, any act of God; act of civil or military authority; act of war; civil disturbance; severe inclement weather conditions atypical for the location and/or season; flood; or embargo. “Force Majeure Event” does not include (a) shortages or late delivery of materials, equipment, supplies or labor required for the manufacture of the material and/or equipment furnished under this Purchase Order, (b) the acts or omissions of Seller or its suppliers (except and only to the extent that such act or omission of such supplier would itself be excused as being a Force Majeure Event), (c) strikes or work stoppages, or (d) economic hardship. This Purchase Order is subject to liquidated damages as contained in the contract between the Purchaser and its customer. The Seller shall be liable for those liquidated damages shown to have been caused by the action, inaction or failure to perform in a timely manner the work required to have been performed by the Seller under this Purchase Order.

2. All material and/or equipment covered by this Purchase Order shall be subject to, at reasonable times, inspection and testing by Purchaser, or the Purchaser’s customer, before, during and after manufacture. Seller shall include in all suborders a statement providing for inspection rights by Purchaser or the Purchaser’s customer. Seller shall notify Purchaser at least three (3) business days prior to the performance of any factory tests or the occurrence of other events identified as witness and hold points set forth in this Purchase Order if the tests or events will occur in a facility located in North America. If the tests or events will occur in a facility located outside North America, then Seller shall notify Purchaser at least seven (7) business days prior to the occurrence of such tests or events. If Purchaser arrives at the Seller’s facility, or other location where inspection and/or testing will occur, and the material and/or equipment is not ready for inspection and/or testing, all increased costs incurred by Purchaser in the trip to such location shall be reimbursed by Seller.

3. The Seller agrees to comply with all federal, state and local regulations, laws, ordinances and enactments of whatever kind, applicable at the time of sale or which may become effective during the period of construction or fabrication, shipping and/or installation (if installation is included) of the materials comprised under this Purchase Order.

4. The price of this Purchase Order is not subject to change or surcharges of any kind resulting from the imposition now or in the future of any sales or use taxes or import/export duties unless expressly set forth herein. It is further agreed that, notwithstanding any contrary provision of the specifications, Seller shall not be entitled to any cost or price escalation except to the extent expressly set forth in this Purchase Order. If prices in effect at the date of acceptance of this Purchase Order are reduced prior to the date of delivery or performance, or if Seller lowers prices to other purchasers under similar conditions and in similar quantities before delivery, Seller agrees to afford to Purchaser the benefit of such reduction or lower prices. This Purchase Order may not be filled at a higher price than last quoted or charged without Purchaser’s prior written consent. If no price is specified, the price is to be the price of the last delivery to Purchaser.

5. In the event the contract of Purchaser with the Owner or another contractor is terminated, cancellation of this Purchase Order shall occur automatically, without cancellation charges, by the Seller, and no obligation of any description whatsoever shall exist on the part of the Purchaser toward the Seller. Furthermore, Purchaser shall have the right, at any time and at its sole discretion, to terminate this Purchase Order, in whole or in part, for its convenience, by giving written notice to Seller specifying the extent to which this Purchase Order is terminated and the effective date of such termination. Seller shall discontinue performance of the work under this Purchase Order to the extent that the notice so specifies, but shall continue to perform any portion of the work not terminated. If the Purchaser exercises its right to terminate without cause, Seller shall promptly assign to Purchaser, in form and in content satisfactory to Purchaser, Seller’s rights, title and interest to the goods purchased for or committed to the terminated work (whether completed or in progress) and to work-in-progress and completed work. Subject to Seller’s compliance with the above provisions, Seller shall recover from Purchaser, as complete, full and final settlement for such terminated work, a sum equal to its actual direct cost for the terminated work delivered as of the date of termination. Any payment to Seller for terminated work shall be less any amounts previously paid to Seller on account of such terminated work. Should termination without cause be preceded by a suspension of the work, the parties agree that any cost and schedule impacts associated with suspension will be excluded from any calculation of costs for termination hereunder. In no event shall Seller be entitled to any prospective, anticipated, or loss profits or any damages of any type with respect to the terminated portion of the work. If Purchaser terminates this Purchase Order for Seller’s default, Seller shall be responsible for all damages caused by its default, including, but not limited to, extra costs for Purchaser to procure material, expenses incurred in inspection, receipt, transportation, care, and custody of rejected goods, any charges, expenses, or commissions in connection with affecting cover, administrative costs, and attorneys’ fees.

6. The contract price appearing on this Purchase Order is final as to payment for the material covered by this Purchase Order, as defined by the enumerated specification paragraph numbers, with exceptions as noted, and there shall be no additions to or other modifications of such contract price, except as such modifications may result from actual change in the specifications or such reductions required by paragraph 4 above. If such changes become necessary, any alteration of the contract price shall be covered by separate order, which shall be issued to cover such changes. Seller shall not proceed with changes affecting contract price without specific authorization in WRITING from the Purchaser.

7. In the event that this Purchase Order specifies the installation of any materials or equipment or requires that employees of the Seller be present, do work, or make installations on the building or site for which the above materials, equipment or services are purchased, the Seller agrees as follows: (1) to pay all Federal and State taxes on the payroll of its employees under the terms of the various old age, unemployment or pension benefits now enacted or which may be enacted prior to completion of this Purchase Order; (2) to carry and pay for proper Workmen’s Compensation or Employer’s Liability insurance, property damage insurance and public liability insurance, and to hold the Purchaser harmless from all costs or damage arising out of actions to or caused by Seller’s employees; (3) to abide by and comply with all Federal and State laws and regulations concerning employment, wages and hours of employees engaged in the work, and agrees to defend and indemnify the Purchaser and save Purchaser harmless from all claims which may be made against it by an employee or employees or Governmental Agencies as a result of Seller’s failure to comply with such Federal and State laws and regulations; (4) Seller further agrees to defend, indemnify and save the Purchaser harmless from all claims or suits for damages arising from such work or installation.

8. Seller represents and warrants to Purchaser that all material and/or equipment rented, leased or purchased under this Purchase Order meets all standards of the Occupational Safety and Health Act of 1970 and Construction Safety Act of 1969, as amended, and of applicable State and Local laws and regulations pertaining to safety. The Seller agrees to defend, indemnify and hold Purchaser harmless of and from any loss, including but not limited to any fines, penalties and corrective measures Purchaser may sustain by reason of Seller’s failure to comply with said laws or regulations in connection with the design, manufacture and/or installation (if installation is included) of such equipment, materials and/or supplies purchased hereunder.

9. Seller represents and warrants that all material and/or equipment covered by this Purchase Order (a) conforms to the specifications, drawings, data, samples, or other descriptions furnished or specified by Purchaser; (b) are new, merchantable and free from defect in material, workmanship and design, and are fit for the intended purposes of the relevant project; and (c) are free of liens or claims by any third party. Material and/or equipment that are not in accordance with this Purchase Order may be rejected and returned by Purchaser at Seller’s risk and expense. Payment for non-conforming material and/or equipment shall not constitute acceptance thereof, or limit or impair Purchaser’s right to assert any legal or equitable right or remedy. No substitutions, alterations or modifications to the specified or approved materials and/or equipment of this Purchase Order will be allowed without the prior written consent of Purchaser. Seller shall promptly repair, replace or correct any material and/or equipment not conforming to the above warranties, without expense to Purchaser. If Seller fails to correct defects in or replace non-conforming material and/or equipment promptly, Purchaser may repair, replace or correct such goods and services and charge Seller for the cost incurred by Purchaser for doing so. Seller hereby waives the benefit of reliance on course of performance, course of dealing and trade usage in its performance under this Purchase Order.

10. All material and equipment furnished under this Purchase Order shall be subject to the approval of the Owner, architect, engineer, or any other party designated in the specifications, and Seller shall furnish the required submittal data and/or number of samples for said approval. In the event such approval is not obtained, this Purchase Order shall be deemed to be cancelled, with no liability on the part of either Purchaser or Seller. Seller agrees to be bound to the Purchaser by all terms of the agreement between the Purchaser, the Purchaser’s customer and the Owner. If the material, equipment or installation (if installation is included) does not meet the plans and specifications of the relevant project, Seller shall, upon receipt of notice, immediately replace the same, or remedy any deficiency, without expense to the Purchaser; and further, Seller shall pay to Purchaser all loss or damage resulting therefrom. Purchaser shall have the right to backcharge Seller for the costs that Purchaser incurs in performing any corrective work required to remedy the Seller’s non-performance. The backcharge may include, but is not limited to, engineering, labor, material, transportation, insurance, subcontracts, tools and equipment. In addition, an allowance of 25% of the direct cost will be added for Purchaser’s overhead, supervision and administrative costs.

11. To the fullest extent permitted by law, the Seller shall indemnify and hold harmless the Purchaser from and against all claims, damages, losses and expenses, including, but not limited to, reasonable attorneys’ fees, arising out of or resulting from the performance of the Purchase Order, but only to the extent caused by the negligent acts or omissions of the Seller, the Seller’s subcontractor, or anyone directly or indirectly employed by them. This indemnification extends to actual or alleged infringement of letters patent, or of any litigation based thereon covering any article purchased. The obligations of this paragraph shall not be construed to negate, abridge or reduce other rights or obligations of indemnity that would otherwise be available to the Purchaser.

12. If requested by Purchaser, Seller shall furnish all necessary lien waivers, affidavits or other documents required to keep the Owner’s premises free from liens or claims for liens arising out of the furnishing of the material or equipment herein, as payments are made from time to time under this Purchase Order.

13. Both parties to the Purchase Order have read and understand the same, and all previous orders, proposals, letters, oral or written promises and understandings, if any, relating to the subject matter of this Purchase Order, are either merged herein or, if inconsistent herewith, voided hereby.

14. In the event of Seller’s default of any of the terms or conditions set forth herein, the Seller agrees to pay all costs resulting therefrom, including but not limited to, reasonable attorneys’ fees and costs.

15. In addition to any right of setoff provided by law, all amounts due Seller or its affiliates under this or any other purchase order or contract shall be considered net of Seller’s indebtedness or obligation to Purchaser and its affiliates; and Purchaser may deduct any amount due or to become due from Seller and its affiliates from any sums due or to become due from Purchaser or its affiliates.

16. Purchaser retains the right at any reasonable time to send its authorized representatives to examine all pertinent documents and materials in the possession or under the control of Seller relating to any of Seller’s obligations under this Purchase Order or any payments requested by Seller pursuant to this Purchase Order. Seller shall maintain all pertinent books and records relating to this Purchase Order for a period of five (5) years after completion of services or delivery of products pursuant to this Purchase Order.

17. If any provision of this Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining conditions of this Purchase Order shall remain in full force and effect.

18. Notwithstanding any other provision in this Purchase Order, the parties agree that all disputes arising out of or related to this Purchase Order shall be resolved through litigation. The parties further agree that the sole and exclusive forum for such litigation shall be the Fond du Lac County, Wisconsin Circuit Court. If this venue is deemed unenforceable by a court of competent jurisdiction, the parties agree that the alternative venue shall be the Federal District Court for the Eastern District of Wisconsin, Green Bay Division.

19. Seller shall notify Purchaser, in writing, of any conflict in this Purchase Order for resolution by Purchaser. Purchaser shall resolve any conflict within this Purchase Order, in writing, in accordance with the following order of contract precedence: (a) drawings and technical documents; (b) the Purchase Order pages preceding these terms and conditions of purchase; (c) these terms and conditions of purchase; and (d) the Seller’s proposal. If there is an irreconcilable conflict among the requirements of the items referenced in (a) through (d), above, the provision imposing the greater duty or obligation on the Seller shall govern.

20. Seller shall provide Purchaser evidence of insurance coverage consistent with the following checklist of insurance requirements. The Seller’s certificate shall be filed with the Purchaser prior to commencement of the work described in the Purchase Order. The certificate of insurance shall contain a provision that coverage afforded under the policies will not be cancelled, materially changed, or allowed to expire until at least thirty (30) days’ prior written notice has been given to Purchaser. In addition to the preceding requirements, any Seller delivering materials to Purchaser’s shop sites or job sites must provide evidence of the required insurance coverage prior to commencement of the delivery of the materials described in the Purchase Order.

J. F. Ahern Co. Vendor Insurance Requirements

Please be advised that all vendors must meet the following insurance requirements.

The Certificate of Insurance must be prepared on a standard “Acord”
Form 25-S and include the following:

1.      Certificate Holder: J. F. Ahern Co., P.O. Box 1316, Fond du Lac, WI 54936-1316
2.      Description of coverage, including policy numbers, limits, expiration dates, insurers and required policy extensions.
3.      J. F. Ahern Co. is an additional insured for general liability.
4.      Authorized signature and date.

General Liability Insurance
* Policy must be issued on an Occurrence basis
* Waiver of Subrogation is required and must be stated on certificate.

Rev 7/2011