STANDARD TERMS AND CONDITIONS
“INTREN” or “Contractor” shall mean INTREN, LLC, an Illinois Limited Liability Company. “Vendor” or “Subcontractor” or “Vendor/Subcontractor” shall mean the person or entity performing services hereunder. The “Parties” shall mean both INTREN and Vendor/Subcontractor.
“Services” or “Scope of Work” shall mean any and all labor, materials, equipment, goods, and expertise necessary to complete the work and/or items required and described by and in any Agreement or Purchase Order (“Agreement” or “P.O.”), and any requirements from an underlying contract signed by INTREN and shared with Vendor/Subcontractor.
“Goods” or “Materials” shall mean the tangible item(s), either in the form of an article, commodity, material, merchandise, supplies or wares required to fulfill the demand of this P.O.
“Job Location” shall mean the location at which Services are to be performed, or Goods, Materials, or Equipment are to be delivered, as more fully described on the face of this P.O.
“Project Documents” shall mean the plans, drawings, specifications, and other conditions applicable to the Goods, Materials, Equipment, or Services required hereunder; to be enforceable against Vendor or Subcontractor, such Project Documents will be referenced on the face of this P.O. and will be attached hereto and/or made available to Vendor/Subcontractor at INTREN’s offices.
“Owner/Lessor” shall mean the owner of the Job Location and the entity that authorized lease of the Job Location to INTREN, in circumstances where INTREN does not own the Job Location.
ACCEPTANCE OF OFFER. This P.O. constitutes INTREN’s offer to Vendor/Subcontractor and becomes a binding contract, on the terms set forth herein, when accepted by the Vendor/Subcontractor either by written acknowledgement or by the commencement of performance of the P.O. No attachment(s), revision(s) or condition(s) stated by Vendor/Subcontractor in response shall be binding upon INTREN unless expressly accepted in writing by INTREN.
CHANGES. Changes in the Scope of Work, Goods, price, extent of Services, or other requirements or terms of this P.O., including but not limited to the type, grade, quality or quantity, shall be legally binding only if in writing, executed by an authorized representative of INTREN.
INDEPENDENT CONTRACTOR. It is understood and agreed that Vendor/Subcontractor is an independent contractor, and that this P.O. is not an offer of or order for employment. Relative to Services and Scope of Work, the manner, means, and methods of performing and completing this P.O. are entirely under the direction and control of Vendor/Subcontractor.
COMPENSATION. Vendor/Subcontractor’s entire compensation hereunder, and the method of computing the same, is specified on the face of this P.O. or on attachments specifically incorporated herein, or Change Orders incorporated as provided in the Agreement, and shall be paid in accordance with the Agreement. It is specifically agreed that the Price stated on the face of the P.O. for all Services includes delivery F.O.B. to the place of destination designated on the face of this P.O. No charges will be allowed for packing, crating, freight, express, or special handling, unless specified. All prices stated are net, and include any and all applicable Federal, State and Local taxes unless stated otherwise, and shall remain in effect during the completion of this P.O. without escalation unless stated otherwise. Vendor/Subcontractor shall not be entitled to any compensation or payment for any Services regarding which claimed defect or default remains outstanding.
INVOICES. Vendor/Subcontractor shall submit invoices as follows: a) a separate invoice shall be issued for each purchase order and delivery thereunder; and b) each invoice shall include the P.O. number and/or Job number with specificity; and c) each invoice shall be accompanied by a Bill of Lading of express receipt. Should invoices be subject to cash discount, then the discount period will be calculated from the date the invoice is received by INTREN.
COMPLIANCE WITH LAWS. Vendor/Subcontractor agrees to comply with all applicable Federal, State and Local laws, governmental regulations, and rules now or hereafter enacted including, without limitation, those relating to the performance of Services as described herein, as well as all applicable requirements of the Fair Labor Standards Act, as amended (including all regulations and orders of the Department of Labor issued thereunder), and all applicable requirements of the Occupational Safety and Health Act of 1970 (including all regulations issued thereunder). Any clause required to be included in this Order by any applicable Federal, State or Local law or administrative rule or regulation having the effect of law hereby is deemed to be expressly incorporated herein.
ENVIRONMENTAL COMPLIANCE. Without limiting the foregoing, Vendor/Subcontractor shall also be responsible for compliance with all “Environmental Laws” relating to the supply/performance of the Goods/Services including, but not limited to, Environmental Laws addressing any “Release or Spill” of a Hazardous Substance which occurs during the provisions of Services. For purposes of this Order, the following terms shall apply: “Environmental Laws” shall mean any and all federal, state, local, civil and criminal laws, statutes, ordinances, orders, codes, rules, regulations, environmental permits, and policies, relating to the protection of health and the environment, worker health and safety, and/or governing the handling, use, generation, treatment, storage, transportation, disposal, distribution, formulation, packaging, or labeling of Hazardous Substance(s); “Release or Spill” shall mean any "spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, migrating, escaping, releasing, leaching, dumping, or disposing into the environment); and “Hazardous Substance(s)” shall mean petroleum (including gasoline, crude oil or any crude oil fraction), waste, trash, garbage, industrial by-product, and chemical or hazardous substance of any nature, including, without limitation, radioactive materials, PCBs, asbestos, untreated sewerage, industrial process sludge and any other substance identified as a hazardous substance or waste in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (commonly known as “CERCLA”), as amended, the Superfund Amendment and Reauthorization Act (commonly known as “SARA”), the Resource Conservation and Recovery Act (commonly known as “RCRA”), or any other applicable federal, state, municipal or county legislation or ordinance. Vendor/Subcontractor shall provide notice to Intren within 24 hours of any Release or Spill of any Hazardous Substance(s), which occurs during the supply/performance of Goods/Services, and perform all necessary reporting, investigation and/or remediation in accordance with Environmental Laws. In addition to the requirements of any Environmental Laws, Vendor/Subcontractor shall further notify Intren within 7 days of any such Release or Spill event, as to the status of any investigation and/or remediation of the Release/Spill event. Notice, for purposes of this paragraph, shall be provided by telephone to INTREN, LLC Headquarters (815)923-2300 and also as required under the “Notices” section herein.
TAXES. Vendor/Subcontractor shall pay all taxes imposed by the Federal or any state or local government on payrolls or compensation of its employees and any other taxes, fees and changes on account of this P.O. and performance of the Services, unless otherwise specified herein.
TIME IS OF THE ESSENCE. Vendor/Subcontractor agrees to furnish all Services on or before the date specified on the face of this P.O., or as agreed upon between parties, or within a reasonable time if no date is so specified and further agrees to indemnify and hold harmless INTREN for any and all loss or damage which INTREN might sustain by reason of Vendor/Subcontractor’s failure to make timely performance or delivery.
ASSIGNMENT AND SUBCONTRACTING. Vendor/Subcontractor shall not assign or subcontract this P.O. or any part thereof without the prior written consent of INTREN. To the extent INTREN agrees to any assignment or subcontracting, Vendor/Subcontractor agrees to secure written agreement from any such permitted assignee or sub-subcontractor, agreeing to be bound by all the terms hereof, and other terms as required by INTREN as a condition of such agreement. INTREN may assign this P.O. by providing written notice to Vendor/Subcontractor.
FORCE MAJEURE. Neither Party shall be liable for any failure or delay in the performance of any obligation under this Order which delay or failure are due solely to due to events beyond such Party’s reasonable control including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, sabotage, riots, civil disorders, war, strikes, lockouts, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials, supplies or machinery, acts of God, or acts or regulations or priorities of the Federal, state or local government or branches or agencies thereof.
LIENS. Vendor/Subcontractor shall secure and provide lien releases as required by the law in the jurisdiction where this P.O. is performed and as required by or on behalf of any Owner/Lessor; INTREN may withhold payment due hereunder until such releases as are required are received. Vendor/Subcontractor shall defend, indemnify and hold harmless INTREN from and against any and all mechanics’ and other material lien claims made upon or claimed against the Project/Job Location as a result of the Services.
18202 W. Union Road
Union, Illinois 60180
Attention: Contracts Department
Notice to Vendor/Subcontractor shall be via email to the email address most commonly used by Vendor/Subcontractor, with a copy send in writing, delivered either certified mail, or by commercial overnight courier, or by hand delivery to Vendor/Subcontractor at the address listed on the face of the Agreement, attention the individual that Vendor/Subcontractor may designate from time to time via Notice as provided herein, and in the absence of such designation, to the person that executes this P.O.
SAFETY. Vendor/Subcontractor shall provide all protective devices and safety equipment needed by Vendor/Subcontractor or Vendor/Subcontractor’s employees to complete this P.O., and shall comply with all applicable laws, ordinances, rules, regulations, and orders of public authorities which exist for the purposes of safety of persons and property.
OWNERSHIP OF DOCUMENTS. Any plans, drawings, patterns, tool samples, specifications, memoranda, as- built drawings, or other similar items prepared or constructed as part of this P.O., shall be the sole and exclusive property of the INTREN and shall be delivered to INTREN immediately upon request.
INTELLECTUAL PROPERTY RIGHTS. To the extent the Work described involves use of INTREN Intellectual Property (trade secrets, trademarks, copyrights, or patentable subject matter), INTREN retains all right, title, and interest in and will remain the sole lawful owner of any such Intellectual Property disclosed to Vendor/Subcontractor or use of which is required by the Contract Documents or the Work. Vendor/Subcontractor acknowledges INTREN’s exclusive rights to its Intellectual Property and will not at any time do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of such right, title, and interest. The Parties further agree that if during the performance of the Work INTREN and/or Vendor/Subcontractor develop or conceive of any new Intellectual Property INTREN shall receive and retain all right, title, and interest and will remain the sole lawful owner of any such Intellectual Property. Notwithstanding the foregoing, if Vendor/Subcontractor materially contributed to the conception or development of specific Intellectual Property, Vendor/Subcontractor shall receive a paid up perpetual license to use that Intellectual Property. INTREN and Vendor/Subcontractor will use their best efforts to maintain the confidentiality and protection of INTREN’s Intellectual Property. If Vendor/Subcontractor becomes aware of any unauthorized use of INTREN’s Intellectual Property, Vendor/Subcontractor will notify INTREN immediately and cooperate with enforcement of INTREN’s rights. Vendor/Subcontractor agrees to reasonably cooperate with INTREN in any litigation or other formal action deemed reasonably necessary by INTREN to protect its rights relating to the use, disclosure, protection and maintenance of INTREN’s Intellectual Property. Vendor’s/Subcontractor’s failure to comply with any of the provisions of this Section is a material breach of this Agreement. In such event, INTREN may terminate the Agreement immediately upon written notice to Vendor/Subcontractor, notwithstanding anything to the contrary in this Agreement. Upon termination of this Agreement for any reason, Subcontractor shall return all documents or things incorporating INTREN’s Intellectual Property.
PATENTS. Except as hereinafter limited, Vendor/Subcontractor shall protect against and avoid claims, damages, judgments, expenses and loss arising from infringement or alleged infringement of any patent of the United States and expressly agrees that the Indemnification requirements shall apply to any claims made against INTREN for such infringement arising out of this P.O. Further, in the event that INTREN is enjoined from using any items delivered hereunder, Vendor/Subcontractor shall promptly either: (i) secure termination of the injunction and procure for INTREN the right to use such items without any obligation or liability, (ii) replace said items with non-infringing goods of modify same to become non-infringing, or (iii) remove said items and refund to INTREN the amount paid to Vendor/Subcontractor therefore. All corrective action hereunder shall be at Vendor/Subcontractor’s sole action and expense.
CONFIDENTIALITY. During the scope of the Project, the Parties may exchange Confidential Information. “Confidential Information” means all non-public information, whether oral, written, electronic or otherwise, that INTREN designates as being confidential or which, under the circumstances surrounding disclosure, should be understood to be treated as confidential, including but not limited to, any such information specifically identified by INTREN, BES Cyber Assets or BES Cyber System Information (as defined in NERC), and may also include information relating to INTREN’s respective businesses or operations, trade secrets, agreements, contracts, letters, research, product plans, products, service plans, services, customer lists and customers, markets, software, including source and object code, application programming interfaces (APIs) and software development kits (SDKs), prototypes, design plans, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, distribution and sales methods and systems, pricing information, sales and profit figures, financial information, any notes, analyses, compilations, studies, or other documents that contain or reflect in whole or in part any such information that is disclosed to Vendor/Subcontractor. Vendor/Subcontractor is bound by duties and obligations of confidentiality and agrees to hold all Confidential Information in strict confidence. Vendor/Subcontractor further agrees: (i) not to disclose the Confidential Information to any third party or person; (ii) not to use, directly or indirectly, any of the Confidential Information for any purpose other than in connection with such discussions or transactions with INTREN; and (iii) not to disclose the existence of the discussions or transactions to any third party or person. All Confidential Information remains the property of INTREN. The responsibilities set forth in this section shall survive the termination of this Agreement and Subcontractor’s duty to hold Confidential Information in confidence shall remain in effect (i) with respect to non-technical Confidential Information, for three (3) years after the date of the disclosure and (ii) with respect to technical Confidential Information, for perpetuity.
FINAL INSPECTION. All Services, Work, and Goods provided will be subject to final inspection and approval by INTREN and by others as provided in the Project Documents. Periodic payments by INTREN shall not be construed as approval of Services, Work, or Goods.
GUARANTEE. Vendor/Subcontractor warrants that Services will conform to plans, specifications, samples or other descriptions and shall be of good workmanship and quality, free of all defects and fit for the intended purpose. Payment by INTREN shall not constitute acceptance of non‐conforming Services. Upon receipt of non‐conforming Services, INTREN may, at its option, cancel the Agreement, obtain a refund from Vendor/Subcontractor, or require that Vendor/Subcontractor re‐perform such Services without charge to INTREN in a timely manner. Vendor/Subcontractor shall be liable for all costs incurred by INTREN resulting from Vendor/Subcontractor’s delivery of non‐conforming Services.
INDEMNIFICATION. To the fullest extent permitted by law, Vendor/Subcontractor shall defend, indemnify, and hold harmless, INTREN, Owner/Lessor, each of their respective direct and indirect parent company(ies), subsidiary(ies), related entity(ies), agents, officers, directors, partners, managers, members and employees from and against any and all suits, actions, claims, losses, demands, damages, costs and expenses, of any kind of nature whatsoever, including but not limited to reasonable attorney’s fees and expenses: (i) due or claimed to be due to Vendor/Subcontractor’s violation of any of the terms hereunder; and/or (ii) related to personal injury(ies), death, or damage to property of any persons, firms or corporation, which in any way arise out of Vendor/Subcontractor’s performance hereunder. NOTHING CONTAINED HEREIN SHALL BE INTERPRETED IN VIOLATION OF APPLICABLE LAW; IT IS THE INTENTION OF THE PARTIES TO COMPLY WITH ANY LIMITATIONS IMPOSED BY LAW, EVEN TO THE EXTENT THAT SUCH INTERPRETATION LIMITS THIS PROVISION AS WRITTEN.
A. In the absence of greater coverage(s) required by the Prime Contract or other Contract Documents, Vendor/Subcontractor shall secure, pay for, and maintain the following minimum insurance coverages during the life of this P.O., and shall provide INTREN with acceptable proof of such coverages: 1) Workman’s Compensation as required by the laws of the State applicable to performance under this Order; and 2) Employer’s Liability Insurance with limits of at least $1,000,000 per occurrence; and 3) where transportation for any portion of this Order is required, commercial automobile liability providing coverage for liability arising out of owned, hired, and non-owned vehicles with a minimum per occurrence limit of $1,000,000; and 4) where Services are required, Comprehensive General Liability Insurance written on a CG 00 01 10 01 (or its equivalent) coverage form, including but not limited to equivalent premises-operations liability, product-completed operations, broad form property damage, personal and advertising injury liability and contractual liability coverage covering all Services and work required and/or provided by Vendor and its agents and employees, with limits of liability not be less than $1,000,000 per occurrence for injury or death/$1,000,000 aggregate, and $1,000,000 per occurrence for property damage/$1,000,000 aggregate; and 5) Vendors involved in trucking and hauling and freight brokers and forwarders shall also secure and maintain the following coverages during the life of this Order, and shall provide INTREN with acceptable proof of such coverages: a) Motor Truck Cargo coverage with a minimum limit in the amount of the commodity being hauled, or as specifically indicated in any P.O. issued hereunder, whichever is greater, with a maximum deductible of $1,000 per occurrence or as specified in any P.O. issued hereunder, whichever is greater; b) any freight broker must maintain a Broker Bond in the minimum amount of $10,000; and c) any freight forwarder must maintain proper BMC 34 filing, and a minimum limit of $5,000 with the FMCSA, contingent auto liability and contingent cargo coverage in the amounts listed in this section.
B. Additional Insureds. All liability policies (including but not limited to Commercial General Liability, Automobile, Excess/Umbrella, Pollution, etc.) shall name INTREN, any property owner where the Services are performed, each of their respective direct and indirect parent company(ies), subsidiary(ies), related entity(ies), agents, officers, directors, partners, managers, members and employees (“Additional Insureds”) as additional insureds. All additional insured coverage provided to these Additional Insureds shall be written as primary and non-contributory basis.
C. Additional requirements. The required insurance policies shall also:
(i) Cross-liability. Contain standard cross-liability provisions (except workers’ compensation); and
(ii) Waiver of Subrogation. Provide waivers of subrogation in favor of all Additional Insureds on Automobile, Commercial General Liability, and Worker’s Compensation policies. If the policies of insurance require an endorsement to provide for continued coverage where there is such a waiver, the owners of such policies will cause them to be so endorsed; and
(iii) Non-Cancellation. All coverage(s) shall be maintained without interruption from the date of commencement of Vendor/Subcontractor’s Work under this P.O. to the date of final payment to Vendor/Subcontractor, and shall provide thirty (30) days prior written notice to INTREN and other Additional Insured(s) of any alteration or termination of coverage; and
(iv) Comply with any and all further and more stringent requirements as may be imposed on INTREN and/or Subcontractor by the Prime Contract.
ADDITIONAL TERMS APPLICABLE TO PURCHASE ORDERS FOR GOODS,
MATERIALS, OR EQUIPMENT ONLY [paragraphs (a) through (c)]
(a) ADVANCE DELIVERY NOTICE: Vendor agrees, as a condition to INTREN’S obligation to accept Goods, Materials, or Equipment, to give INTREN 48 hours advance notice of any direct shipment from the Vendor or from the manufacturer’s factory or warehouse.
(b) IDENTIFICATION: Each package shall be numbered and labeled with INTREN’S P.O. number, Project name, contents and weight (if in excess of seventy pounds) shall contain an itemized packing slip and shall be properly packed for shipment.
(c) QUANTITY: Items shipped in excess of the quantity designated in this P.O. may be returned at Vendor’s expense. Vendor agrees to allow INTREN to change designated quantities as INTREN deems necessary, prior to shipment, without penalty to INTREN.
ADDITIONAL TERMS APPLICABLE TO PURCHASE ORDERS
REQUIRING PROVISION OF SERVICES
SAFETY. Subcontractor shall provide all protective devices and safety equipment required for the safe performance of Subcontractor’s Scope of Work and Services, shall comply with all applicable laws, ordinances, rules, regulations, and orders of public authorities which exist for the purposes of safety of persons and property, and understands that it, and not INTREN, is responsible for determining the safe and effective manner, means, and methods of performing Services hereunder, relying upon its own skill and expertise, and not upon INTREN.
ATTORNEYS FEES AND COSTS UPON DEFAULT. In the event that suit or other legal process is initiated in an effort to enforce rights under this P.O., the prevailing Party in such legal process or suit shall have the right to recover from the other all reasonable attorney’s fees and costs and expenses incurred in the enforcement process, including but not limited to those provided by statute.
ARBITRATION. Any claim(s) or dispute(s) arising hereunder shall be submitted to Arbitration if demanded by INTREN, with a waiver by both Parties of any jury demand to the extent permitted by law, and the decision shall be final and binding, and judgment may be entered upon said decision, in accordance with the applicable laws of the court having jurisdiction thereof, and shall be enforceable in like manner.
NON-WAIVER. The failure of INTREN to enforce any of the terms of provisions of this P.O., or to exercise any right or privilege, at any time, shall not be construed as a waiver of any such terms, conditions, rights, or privileges available hereunder.
REMEDIES AND GOVERNING LAW. INTREN’s rights and remedies set forth herein shall not be exclusive and are in addition to any other rights and remedies provided by law. The interpretation and performance of this P.O. and the terms herein shall be governed and construed by the laws of the State in which performance is required, which shall mean the Job Location in the event of delivery or Services provided at such location.
SEVERABILITY. No partial invalidity of this P.O. shall effect the remainder hereof.
ENTIRE AGREEMENT. Without limitation on the foregoing, this Order and all attachments incorporated herein contain the entire agreement and understanding between INTREN and Vendor/Subcontractor as to the Goods, Services, Materials, or Equipment requested hereunder. No other prior or subsequent oral discussions or representations shall serve to affect or supplement the terms and requirements of this order, unless stated in writing and executed by both INTREN and Vendor/Subcontractor. For example, if the Parties have executed a Master Services Agreement, then the terms of the Master Services Agreement shall supersede in the event of a conflict.
PRIME CONTRACT (for Subcontractors performing services on Owner’s Job Location): Without limiting the circumstances under which these terms apply, Vendor/Subcontractor understands that for this P.O. there may exist an agreement between INTREN and its customer (hereinafter “Owner”), which agreement(s) shall collectively be referred to herein as the Prime Contract (“Prime Contract”). The Prime Contract is incorporated into this Purchase Order. Vendor/Subcontractor agrees to be bound to INTREN by all of the provisions of the Prime Contract applicable to the Scope of Work, and, insofar as the Scope of Work is concerned, to assume towards INTREN all of the duties, obligations, risks, and liabilities that INTREN has assumed under the Prime Contract, including, without limitation, all requirements relating to quality, quantity, insurance and timeliness of work.