1. Acceptance. This PO is expressly conditioned on Seller's acceptance of all the terms and conditions set forth herein. This PO and any incorporated document constitute the entire agreement between Penhall and Seller, and additions, deletions or modifications contained in any quotation, proposal, acknowledgment or other document prepared by Seller are expressly excluded. In the event of an inconsistency or conflict between the provisions of any Subcontract or Master Agreement and this PO, the terms and conditions of the Subcontract or Master Agreement will govern and take precedence over these terms and conditions.
2. Performance. Time is of the essence in the performance of this PO and if the goods are not delivered or the services not provided in the manner and at the times specified, Penhall reserves the right, in addition to its other rights and remedies, to take either or both of the following actions: (a) direct expedited delivery of the goods or performance of services, with any difference in cost caused by such change paid by Seller, and/or (b) purchase substitute goods and charge Seller with any loss or additional costs Penhall incurs. Seller will promptly advise Penhall of any delay in performance, including notice with regard to any goods placed under backorder. Seller’s performance is not deemed completed until the goods or services have been accepted by Penhall. All goods shipped under this PO are to be shipped FOB Penhall’s branch location specified in the PO.
3. Inspection. All goods and services purchased hereunder are subject to inspection by Penhall at all reasonable times and places notwithstanding the terms of payment, and in any event, prior to final acceptance. No inspection made prior to final acceptance will relieve Seller from responsibility for failure to meet the requirements of this PO. In the event the goods or services do not meet the applicable specifications and instructions, Seller will promptly re-perform the nonconforming services or provide replacement goods satisfactory to Penhall at Seller's sole expense. If Seller is unable to accomplish the foregoing, Penhall may procure such goods or services from another source and charge to Seller’s account all costs, expenses and damages associated therewith.
4. Payment. Invoices must contain the following information: PO number, part numbers, description of services, prices, extended totals and attach all supporting documentation, if any. To the extent applicable, all invoices must include any tax amounts, listed separately. Invoices must be sent to firstname.lastname@example.org. Invoices without a valid PO or other required information will be rejected. Invoices will be paid by ACH or check sixty (60) days after receipt of an approved invoice. Invoices may be paid net forty-five (45) days by credit card, with credit card fees to be paid by Seller. Any adjustments in Seller's invoices due to late performance, rejections or other failure to comply with the requirements of this PO may be made by Penhall before payment. Payment does not constitute final acceptance. Penhall may offset against any payment hereunder any amount owed to Penhall by Seller or its affiliates.
5. Changes. Penhall may, by written notice to Seller make changes to any one or more of the following: (a) specifications for services or goods, (b) quantity, and (c) place and/or time of performance. Penhall may also direct Seller to suspend in whole or in part the provision of goods or the performance of services hereunder permanently or for such period of time as may be determined by Penhall to be necessary or desirable. If any such change or suspension causes an increase or decrease in the cost or time required for the performance of services or provision of goods hereunder, an adjustment may be made in the price or delivery schedule, or both, and the PO will be modified in accordance with Section 22. Any claim for adjustment by Seller will be deemed waived unless asserted in writing within ten (10) days from receipt by Seller of the notice of change.
6. Warranty. Seller expressly warrants that the goods or services provided under this PO will be performed in accordance with Penhall’s specifications and instructions. Seller further warrants that the goods and services will be merchantable, non-infringing, free from defects and fit and sufficient for the purpose intended. Services will be performed with the highest degree of skill and judgment exercised by recognized professionals performing the same or similar services. These warranties are in addition to all other warranties, express, implied or statutory. Payment for, inspection of, or receipt of the goods or services does not constitute a waiver of any breach of foregoing warranties. In the event of any breach of the foregoing warranty, Seller will, at its own expense and at Penhall’s option either: (a) provide replacement goods satisfactory to Penhall, (b) re-perform the nonconforming services to the satisfaction of Penhall, or (c) refund to Penhall the total amount paid for such goods or services. Seller will extend all warranties it receives from its suppliers to Penhall and to Penhall's customers.
7. Supplier Code of Conduct. Penhall’s Supplier Code of Conduct, published on Penhall’s website at: https://www.penhall.com/supplier-code-of-conduct/ is incorporated herein, and Supplier agrees to comply with such Code of Conduct.
8. Confidential Information. Penhall and Seller acknowledge that in their course of dealings, Seller may acquire from Penhall confidential and proprietary information about Penhall, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the “Confidential Information”). The confidential information of Penhall will only be disclosed to Seller’s employees, agents or consultants with a need to know and who are under a written obligation to keep the information confidential. Seller will not disclose the Confidential Information to any third parties. Seller will use the same degree of care but no less than a reasonable degree of care that it uses with regard to its own confidential information to prevent the disclosure of Penhall Confidential Information.
9. Termination For Convenience. Penhall may terminate this PO in whole or in part at any time and without cause. Upon notice of termination, Seller will inform Penhall of the extent to which it has completed its performance under this PO as of the date of the notice and collect and deliver to Penhall any goods or Work Product, as defined in Section 11, which then exists. Penhall will pay Seller for goods or services accepted and performed through the effective date of termination provided that Penhall will not be obligated to pay more than the payment that would have been due had Seller completed or provided the goods or services. Penhall will have no further payment obligation in connection with any termination.
10. Indemnification. Seller will indemnify, defend and hold Penhall, its officers, employees, agents and customers (the “Indemnified Parties”) harmless from and against any and all losses, liabilities, costs, claims, damages and expenses (including attorneys’ fees and costs) arising out of or relating to the provision of goods and services pursuant to this PO or Seller’s breach of any term or provision of this PO. Such indemnification obligations shall apply regardless of the acts or omissions of the Indemnified Parties, including negligence.
11. Consequential Damages. In no event shall party be liable for, and each waives its rights against the other with respect to special, indirect or consequential damages of any nature whatsoever, including, without limitation, loss of profit or revenues, in any way arising out of or in any way related to the Work.
12. Relationship of the Parties. Seller is an independent contractor and nothing contained in this PO will be deemed or construed to create a partnership, joint venture, agency or other relationship other than that of supplier and customer. Seller is solely responsible for payment of all compensation owed to its employees as well as employment related taxes. Any agreements or commitments entered into by Seller are not binding on Penhall and further Penhall assumes no liability with respect to any agreements or commitments entered into by Seller with its employees, agents, suppliers and the like.
13. Subcontracts and Assignment. This PO may not be subcontracted or assigned without Penhall’s prior written permission.
14. Compliance with Laws. Seller will comply with the applicable provisions of all federal, state or local laws or ordinances and all orders, rules and regulations issued thereunder.
15. Insurance. Seller will secure and maintain insurance providing in commercially reasonable amounts to comply with its obligations and duty to defend and indemnify as required under this PO. Within five (5) days of receipt of a request from Penhall, Seller agrees to provide Penhall with a certificate of insurance evidencing Seller’s insurance coverages, and naming Penhall as an additional insured with respect to all such coverages.
16. Publicity and Disclosure. Without securing the prior written consent of Penhall, Seller will not use the name or logo of Penhall or Penhall’s customer in any news release, public announcement, advertisement, or other form of publicity, or disclose any of the terms or subject matter of this PO to any third party except as may be required to perform this PO.
17. Severability. If any term contained in this PO is held or finally determined to be invalid, illegal or unenforceable in any respect, in whole or in part, such term will be severed from this PO, and the remaining terms contained herein will continue in full force and effect.
18. Interpretation. The captions and headings used in this PO are solely for the convenience of the Parties, and are not to be used in the interpretation of the text of this PO. Each Party has read and agreed to the specific language of this PO; no conflict, ambiguity, or doubtful interpretation will be construed against the drafter.
19. Governing Law; Jurisdiction. This PO is governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of law provisions. Seller agrees that the state and federal courts in Dallas County, Texas will have the exclusive jurisdiction and venue over any claims arising out of or related to this PO.