Vendor Terms and Conditions

TERMS AND CONDITIONS

These terms and conditions (“Terms”) govern the purchase of Materials and Services by Vortex Industries, LLC, DBA Vortex Doors of Tampa or its affiliated entities (“Vortex”) from the Vendor named on the attached purchase order (“Purchase Order” and collectively with these Terms, the “Agreement”). These Terms are also incorporated into any master services agreement or other written contract in place between Vortex and the Vendor for providing materials or services to Vortex.  By signing this Purchase Order or by providing the Materials or performing the Services described in the Purchase Order, Vendor agrees as follows:

1. Delivery of Materials and Performance of Services.
   1. Vendor shall sell and deliver to Vortex the materials (“Materials”) in the quantities and within the time frame specified in the Purchase Order (“Delivery Date”). If Vendor fails to deliver the Materials in full on the Delivery Date, Vortex may terminate this Agreement immediately by providing written notice to Vendor and Vendor shall indemnify Vortex against any losses, claims, damages, and reasonable costs and expenses directly attributable to Vendor’s failure to deliver the Materials on the Delivery Date.
   2. Vendor shall deliver all Materials to the address specified in the Purchase Order (“Delivery Point”) during Vortex’s normal business hours or as otherwise instructed by Vortex. Vendor shall pack all Materials for shipment according to Vortex’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Materials are delivered in undamaged condition. Vendor must provide Vortex prior written notice if it requires Vortex to return any packaging material. Any return of such packaging material shall be made at Vendor’s risk of loss and expense.
   3. Vendor shall provide the services (“Services”) to Vortex as described and in accordance with the dates or schedule set forth on the Purchase Order and in accordance with the terms and conditions set forth in these Terms.
   4. Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder and the timely delivery of the Materials and Services.
   5. Title and risk of loss passes to Vortex upon delivery and acceptance of the Materials at the Delivery Point.
   6. Vendor shall cooperate with Vortex and the owner of the site where Materials and Services are being provided, shall not interfere with any work being performed by Vortex or any business of the owner, and shall take appropriate precautions at all times to protect the personnel and property of Vortex and the owner from harm.
2. Payment
   Vortex shall pay Vendor at the price and on the payment terms set forth in the Purchase Order upon final acceptance of the Materials or Services by Vortex and issusance of an invoice by Vendor in accordance with these Terms.  No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Vortex. All payments hereunder must be in US dollars and made by [METHOD OF PAYMENT]. Without prejudice to any other right or remedy it may have, Vortex reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Vortex to Vendor.
3. Warranties
   1. All Materials provided by Vendor shall be brand new; authentic and not counterfeit; conform to specifications; free of defects in design, workmanship, or materials; conveyed to Vortex with good title free and clear of all security interests, lies, or claims by third parties; suitable for their intended use; procured or manufactured in accordance with applicable laws; and properly tested. This warranty shall survive delivery, inspection, acceptance or payment of or for the Materials.
   2. Vendor warrants to Vortex that it shall perform the Services using sufficient personnel with the proper skills, experience and qualifications and in a professional and workmanlike manner in accordance with best industry practices.
   3. The warranties set forth in this Section 3 are cumulative and in addition to any other warranty provided by law or equity, including but not limited to any warranties by the manufacturer of any Materials sold by Vendor. Any applicable statute of limitations runs from the date of Vortex’s discovery of the noncompliance of the Materials or Services with the foregoing warranties. If Vortex gives Vendor notice of noncompliance pursuant to this Section, Vendor shall, at its own cost and expense, [promptly/within [NUMBER] days] (i) replace or repair the defective or nonconforming Materials and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Materials to Vendor and the delivery of repaired or replacement Materials to Vortex, and, if applicable, (ii) repair or re-perform the applicable Services.
4. Vendors Obligations Regarding Services
   Vendors shall:
   1. Perform all Services with first class workmanship and attention to detail in accordance with best industry practices and in compliance with all applicable laws and all policies or practices of Vendor or the owner of the site where the Services are performed concerning workplace safety and personal conduct.
   2. Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Vendor in providing the Services in such form as Vortex shall approve.
   3. Ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Vortex;
   4. Be solely responsible for hiring, training, assigning, supervising, compensating, disciplining, and fulfilling all legal obligations as the employer of the employees of Vendor who will perform any Services. Vortex shall have no such authority or responsibility with respect to any employees of Vendor, and shall not be considered a joint employer of Vendor’s employees; and
   5. Keep and maintain any Vortex equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Vortex’s written instructions or authorization.
5. Inspection and Rejection
   Vortex shall have the right to inspect the Materials on or after the Delivery Date.  Vortex, at its sole option, may inspect all or a sample of the Materials or Services, and may reject all or any part of the Materials or Services that are nonconforming or defective by notifying Vendor promptly after receipt of the Materials or performance of the Services.  If Vortex rejects any portion of the Materials or Services, Vortex has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety; (b) reject the Materials and Services and require Vendor to supply conforming Materials or Services without additional compensation; (c) accept the Materials and Services at a reasonably reduced price or (c) withhold payment until Vendor has remedied the non-conformity. If Vortex requires replacement of the Materials, Vendor shall, at its expense, [promptly/within [NUMBER] days] replace the nonconforming or defective Materials and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Materials and the delivery of replacement Materials. If Vendor fails to timely deliver replacement Materials, Vortex may replace them with Materials from a third party and charge Vendor the cost thereof and terminate this Agreement for cause pursuant to Section 9. Any inspection or other action by Vortex under this Section shall not reduce or otherwise affect Vendor’s obligations under the Agreement, and Vortex shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
6. Change Orders.
   Vortex may at any time, by written instructions and/or drawings issued to Vendor (each a “Change Order”), order changes to the Services. Vendor shall within [NUMBER] days of receipt of a Change Order submit to Vortex a firm cost proposal for the Change Order. If Vortex accepts such cost proposal, Vendor shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in the Vendor’s compensation or the performance deadlines under this Agreement.
7. Cooperation.
   If Vendor is providing Materials to Vortex, Vendor shall keep Vortex informed as to the status of the Purchase Order and the delivery of the Materials. If Vendor is providing Services to Vortex, Vendor shall designate an authorized representative who shall be present on site and shall keep Vortex informed at all times as to the progress of the Services.
8. Legal Compliance.
   Vendor represents that, prior to providing any Materials or Services and at all times during term of this Agreement, shall maintain all licenses and permits required by law for Vendor to provide the Materials or perform the Services, and that Vendor will comply with all applicable laws in carrying out this Purchase Order.
9. Termination.
   In addition to any remedies that may be provided under these Terms, Vortex may terminate this Agreement at any time immediately upon written to the Vendor in the event of a material breach of this Agreement.  To the extent allowed by law, if Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, Vortex may terminate this Agreement upon written notice to Vendor.  If Vortex terminates the Agreement for any reason, Vendor’s sole and exclusive remedy is payment for the Materials and Services accepted by Vortex prior to the termination.
10. Insurance.
    During the term of this Agreement and for a period of two years thereafter, Vendor shall maintain general and product liability insurance in commercially reasonable amounts during the period Vendor provides Materials or Services under this Purchase Order.  If Vendor is providing Services to Vortex, Vendor shall also maintain workers compensation insurance for all of its employees as required by law, and general liability insurance of at least $1 million dollars per occurrence and $2 million dollars annual aggregate for premises and operations, products and completed operations; contractual liability; and construction activities. Upon Vortex’s request, Vendor shall provide Vortex with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in these Terms.
11. Indemnification.
    Vendor shall defend, indemnify, and hold harmless Vortex and its directors, officers, shareholders and employees from any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs arising from or relating to any breach of this Agreement by Vendor or any willful, reckless, or negligent act or omission by Vendor.
12. Waiver.
    No waiver by Vortex of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Vortex. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13. Confidentiality.
    Vendor shall use any confidential information provided by Vortex solely for proper purposes in performing this Purchase Order. Upon Vortex’s request, Vendor shall promptly return all documents and other materials received from Vortex. Vortex shall be entitled to injunctive relief for any violation of this Section.
14. Force Majeure.
    No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) strikes, labor stoppages or slowdowns or other industrial disturbances; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within [NUMBER] days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of [NUMBER] consecutive days following written notice given by it under this Section 14, the other party may thereafter terminate this Agreement upon [NUMBER] days’ written notice.
15. Assignment.
    Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Vortex. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. Vortex may at any time assign or transfer any or all of its rights or obligations under this Agreement without Vendor’s prior written consent to any affiliate or to any person acquiring all or substantially all of Vortex’s assets.
16. Relationship of the Parties.
    The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  Nothing in this Agreement shall create any contractual rights between Vendor and the owner of any site on which Materials or Services are delivered or performed.  Vendor shall not communicate with owner except as necessary to carry out the terms of this Agreement and shall keep Vortex informed of all such communications.
17. Successors.
    This Agreement shall inure to the benefit of and be binding upon the successors to any of the parties.
18. Arbitration.
    Any dispute or controversy arising from or relating to the formation, performance, or breach of this Agreement shall be resolved through binding arbitration in Orange County, California, under the auspices of the American Arbitration Association (AAA) or such other provider as the parties may mutually agree, pursuant to the then current AAA rules for commercial disputes.
19. Attorney’s Fees.
    The prevailing party in any legal dispute between the parties shall recover its attorneys’ fees, arbitrator’s fees, and costs.
20. Governing Law.
    All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
21. Amendment.
    These Terms can be amended or modified only in a written document signed by authorized representatives of all parties.
22. Other Agreements.
    The terms of any master services or other written agreement in place between Vortex and Vendor for materials or services similar to those provided under this Agreement are incorporated into this Agreement.  In the event of any direct conflict between such agreement(s) and this Agreement, the other agreement(s) shall be controlling.
23. Survival.
    Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Confidentiality, Governing Law, Arbitration and Survival.
24. Miscellaneous.
    This Agreement (and any master services or other written agreement incorporated herein) constitute the complete agreement of the parties, and supersedes all other agreements concerning the same subject matter whether oral or written, express or implied.  Both parties acknowledge that in entering into this Agreement, they have not relied on promise or representation by the other party except for the express terms of this Agreement.