Terms & Conditions - Purchase

Mersino -Terms & Conditions of Purchase

The following Terms and Conditions shall govern all purchases of goods or services made by Mersino and/or any of its affiliates or subsidiaries (collectively, “Purchaser”) from a third party (“Seller”) and these Terms and Conditions shall supersede any other terms and conditions, unless expressly agreed by Purchaser and Seller (individually “Party” and collectively “Parties”) in writing, in which case, those other written terms and conditions shall prevail as agreed upon by the Parties in writing or to the extent those other written terms and conditions conflict with these Terms and Conditions. These Terms and Conditions are incorporated by reference into any purchase order or other orders that Purchaser issues or provides to Seller for goods or services (individually, “Purchase Order” or collectively, “Purchase Orders”) as if expressly set forth therein, and unless otherwise provided herein or agreed upon by the Parties in writing, any written acknowledgement of a Purchase Order or any performance or delivery of any goods or services by Seller constitutes acceptance of these Terms and Conditions by Seller. Acceptance or acknowledgement of a Purchaser Order constitutes acceptance and acknowledgement of these Terms and Conditions. Purchaser hereby objects to any terms or conditions that vary these Terms and Conditions, unless agreed upon by the Parties In writing. Any terms or conditions that vary these Terms and Conditions shall be of no force and effect.

1. Acceptance and Payment

Seller’s acknowledgement of a Purchase Order, delivery or performance of any goods or services shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any terms or conditions issued or proposed by Seller, which vary from these Terms and Conditions in any respect prohibited and rejected by Purchaser. Any such varying terms and conditions shall have no force and effect unless agreed upon in writing by the Parties. Seller acknowledges and agrees that payment of a Purchase Order by Purchaser to Seller is due sixty (60) days after Purchaser receives and accepts, as provided by these Terms and Conditions, the goods or services subject to a Purchase Order. Purchaser shall have the right to inspect or test the goods or services before accepting the goods or services. Purchaser shall have the right to reject or object to the goods or services for any reason, including, but not limited to, the goods or services being defective or nonconforming. In the event of such rejection or objection, Seller shall have the right to exercise any rights and remedies available to Purchaser under these Terms or Conditions and provide by law or otherwise. Payment for the goods or services delivered or performed shall not constitute acceptance thereof or waive Purchaser’s right to subsequently reject or object to the goods or the services. Nothing contained in these Terms and Conditions shall relieve or release Seller from its obligation to deliver or perform goods or services in accordance with these Terms and Conditions. Purchaser shall have no obligation to make any payment to Seller unless Seller, in Purchaser’s sole opinion, is in full compliance with all requirements of a Purchase Order and these Terms and Conditions. Unless otherwise required by law, Seller shall bear the risk of nonpayment by any owner, contractor, subcontractor, or any other entity or person higher than Purchaser in the party hierarchy for the project subject to a Purchase Order. It is expressly understood and agreed between Purchaser and Seller that receipt of payment attributable to the goods or services by Purchaser from any owner, contractor, subcontractor, or any other entity or person higher than Purchaser in the party hierarchy for the project subject to a Purchase Order is a condition precedent to Purchaser’s obligation to make, or Sellers right to receive, any payment provided or required under a Purchase Order and these Terms and Conditions. Seller shall promptly pay any person or entity that provides labor or material or goods or services to Seller relative to a Purchase Order in accordance with these Terms or Conditions and any applicable laws, rules, regulations, codes, or ordinances (or the like). Purchaser is authorized to: (i) withhold or deduct any payment provided or required under a Purchase Order and these Terms and Conditions, or any amount thereof, from any amount owed by Seller to Purchaser; (ii) make any payment to Seller and any person or entity that provides labor or material or goods or services to Seller relative to a Purchase Order by joint check; (iii) directly pay any person or entity that provides labor or material or goods or services to Seller relative to a Purchase Order with funds owed to Seller; and (iv) withhold or deduct any payment provided or required under a Purchase Order and these Terms and Conditions, or any amount thereof, which is, in Purchaser’s sole opinion and discretion, sufficient to compensate or reimburse Purchaser or any other entity or person for any breach by Seller of a Purchaser Order or these Terms and Conditions or for any other reason that Purchaser, in Purchaser’s sole opinion and discretion, deems necessary or warranted (or the like).

2. Delivery and Performance of Goods and Services

Purchaser’s delivery or performance of any goods and services and all items incidental to said delivery or performance shall be dependent upon, consistent with, and subject to said delivery or performance occurring by the required or specified delivery or performance date. The date required or specified for delivery or performance is the required or specified date that Purchaser provides Seller for said delivery or performance at Purchaser's required or specified destination, unless otherwise agreed upon by the Parties in writing. Purchaser reserves the right to refuse any goods or services and to cancel all or any part thereof if Seller fails to deliver all or any part of any goods or perform all or any part of any services in accordance with a Purchase Order or these Terms and Conditions. If Seller has any reason to believe delivery or performance of any goods or services will not meet the specified or required delivery or performance date, Seller shall inform Purchaser immediately. In such event, Purchaser may, at its sole option, require Seller to take any action that Purchaser, in its sole opinion, deems necessary or warranted (or the like) to expedite delivery or performance of any goods or services so any specified or required delivery or performance date is met, which Seller shall take at Seller’s expense and/or Purchaser may require Seller pay liquidated damages equal to four percent (4%) of the value of the Purchase Order per day for every day that delivery or performance is delayed and/or exceeds the specified or required delivery or performance date. Seller understands and agrees that said liquidated damages are not a penalty, but a true estimate of the anticipated damages that Purchaser will suffer or sustain as a result of any delay in delivery or performance; moreover, Seller shall be liable to Purchaser for, and shall defend, indemnify, and hold harmless Purchaser from, any fees and costs (including, but not limited to, attorney, consultant, or expert fees and costs) or damages or expenses of any form or amount that are asserted or assessed against or incurred by Purchaser because of Seller’s failure to deliver or perform all or any part of any goods or services in accordance with a Purchase Order or these Terms and Conditions.

3. Default, Suspension, and Termination

If, in Purchaser’s sole opinion, Seller (i) breaches any provision of a Purchase Order or these Terms and Conditions or becomes insolvent, files for bankruptcy, encounters or experience financial difficulties, has a receiver appointer over it, executes an assignment for the benefit of creditors, ceases operating or conducting business, or encounters or experiences any other situation that jeopardizes the proper prosecution of a Purchase Order or the proper prosecution of the delivery or performance of the goods or services (each of which is an “event of default”), Purchaser, in its sole discretion, may declare Seller in default and terminate or suspend a Purchase Order or delivery or performance of any goods or services or any part thereof upon written notice to Seller; said termination or suspension shall be considered for cause and Seller shall be liable for any damages or losses (or the like) incurred by Purchaser because of said event of default and/or said termination or suspension. In the event of such termination or suspension for cause, Seller shall not be entitled to any compensation or payment. If Purchaser wrongfully exercises the termination or suspension for cause option in this section of these Terms and Conditions, said termination or suspension shall be considered a termination or suspension for convenience. In the event of such termination or suspension for convenience, Seller shall only be entitled to compensation or payment for reasonable expenses that Sellers actually and necessarily incurred with respect to the prosecution of a Purchase Order until Seller received notice of said termination or suspension; said expenses shall not include overhead or profit, office expenses or legal expenses, or supervision costs or administration costs; moreover, said expenses shall be exclusive and Seller explicitly waives the right to any other remedy. Seller shall not be paid for any delivery or performance of any goods or service after receiving notice o of any termination or suspension or be entitled to any costs or expenses incurred by Seller or Seller’s subcontractors or suppliers (or any other person or entity that provided labor or material or goods or services to Seller relative to a Purchase Order) which could have reasonably been avoided or which relate to supplies or materials which can be used by Seller in Seller’s ordinary course of business. This section of these Terms and Conditions shall not restrict or limit any other right or remedy of Purchaser permitted by a Purchaser Order or these Terms and Conditions.

4. Confidential and Proprietary Information and Documentation

Seller shall consider all information and documentation furnished by Purchaser, in any form or manner including, but not limited to, prices and processes, client and customer lists, and trade secrets (or purported trade secrets), to be confidential and proprietary and shall not disclose any such information or documentation to any other entity or person or use such information or documentation f for any purpose other than the delivery or performance of the goods and services, unless Seller obtains written permission from Purchaser to do so. Unless otherwise agreed upon by the Parties in writing, no commercial, financial, or technical information or documentation disclosed in any form or manner by Seller to Purchaser shall be deemed confidential or proprietary and Seller shall have no rights or remedies against Purchaser with respect thereto.

5. Good and Services Warranty

Seller warrants that all goods or services furnished under a Purchase Order shall conform to all applicable specifications and standards and shall be new, of good quality, and free from defects. Seller shall be required to correct any defective goods or services or replace any nonconforming goods or services immediately, which Seller shall correct or replace at Seller’s expense. In the event that Seller fails to correct any defective goods or services or replace any nonconforming goods or services immediately, Purchaser may, after reasonable notice to Seller, correct or replace such goods and services and charge Seller for the cost incurred by Purchaser for said correction or replacement.

6. Price Warranty

Seller warrants that the price(s) for the goods or services are not less favorable than those currently extended to any other customer for same or similar goods or services. Seller further warrants that the price(s) for the goods or services include all expenses for the delivery or performance of the goods or services, including, but not limited to, duties, taxes, licenses, permits, storage fees and costs, insurance fees and costs, and fees and costs associated with shipping, packaging, labeling, boxing, and crating.

7. Force Majeure

Purchaser may delay delivery or performance of the goods or services (or acceptance of the same) for reasons beyond its control, including, but not limited to, acts of God, labor disputes or strikes, governmental actions or inactions or orders or regulations (or the like), emergencies, pandemics, epidemics, diseases, quarantines, unavailability or shortage of any of material, supply, or energy or issues with the source or production, fabrication, or distribution of the same, including, but not limited to, any supply chain issue(s).

8. Insurance

Seller shall, at its expense and at all times during the prosecution of a Purchase Order or the prosecution of the delivery or performance of the goods or services, maintain insurance coverage in amounts and with terms and conditions satisfactory to Purchaser for: worker’s compensation and employer’s liability insurance to fully protect against loss from personal injury, including death, to any of its employees; (ii) comprehensive general liability, auto liability, general liability (including product liability and completed operations liability), excess/umbrella liability insurance, and (iii) any other insurance required by Purchaser. Seller shall also, at its expense and at all times during the prosecution of a Purchase Order or the prosecution of the delivery or performance of the goods or services, maintain insurance coverage that fully insures the goods or the services from any damage or loss; the amount and terms and conditions of said insurance shall be satisfactory to Purchaser. Seller shall furnish certificates of insurance satisfactory to Purchaser that evidence the insurance required by these Terms and Conditions. Neither delivery or performance by Seller nor payment by Purchaser shall diminish Seller’s duty to maintain the insurance required by these Terms and Conditions.

9. Indemnification

To the fullest extent permitted by law, Seller shall defend, indemnify, and hold harmless Purchaser as well as its owners, officers, directors, managers, shareholders, members, employees, agents, insurers, sureties, and parent and affiliated companies (or the like), from any claims, suits, actions, demands, liabilities, fines, penalties, assessments, judgments, damages, losses, expenses, or fees or costs (including, but not limited to, attorney, consultant, or expert fees or costs) of any nature asserted or assessed against or incurred by Purchaser concerning or regarding or in any way relating to: (i) a Purchase Order or these Terms or Conditions or the breach thereof; (ii) the good or services and the delivery or performance thereof; (iii) any action or inaction of Seller or any person or entity prosecuting or performing work or duties (or the like), directly or indirectly, on behalf of Seller. Seller’s obligations hereunder shall apply to any claim or suit against Purchaser by any employee of Seller. Seller shall not assert, as a defense in any claim or suit by Purchaser to enforce Seller’s obligations hereunder, any defense or immunity provided under any worker’s compensation law or other law. Sellers's obligations hereunder shall not be limited by any other provision of a Purchase Order or these Terms and Conditions or by any law. Seller’s obligations hereunder shall survive the prosecution or termination of a Purchase Order. Any damages recoverable by Purchaser from Seller shall bear interest at the annual rate of eighteen percent (18%) or the highest rate allowed by law if lower.

10. Changes and Extras

Purchaser shall have the right, at any time and without invalidating a Purchase Order or these Terms and Conditions, to make or order any changes in the specifications and requirements for the goods and services or the delivery or performance of the goods or services, including, but not limited to, drawings, designs, specifications, materials, packaging, time and place of delivery and performance, and means and methods for delivery and performance. Seller agrees to accept and effectuate any such changes. Any changes and extras in the goods or services or delivery or performance of the same are only valid and enforceable upon written order by Purchaser to Seller and Seller shall be entitled to no compensation or extension with respect to any changes and extras in the goods or services or delivery or performance of the same performed before receipt of such written order. Any changes in price or time with respect to any changes and extras in the goods or services or delivery or performance of the same shall be agreed upon in writing by the Parties. Should the Parties be unable to agree on any price or time or any other item (e.g., amount, value, etc.) with respect to any changes and extras in the goods or services or delivery or performance of the same, Seller shall proceed with the delivery or performance of the goods or services as specified in writing by Purchaser without delay and the matter shall be resolved in accordance with the claim or dispute provisions provided in these Terms and Conditions.

11. Audit and Assurance Rights

Purchaser shall have the right, at any time and for any reason or no reason at all, to send its authorized representatives to examine Seller’s processes, facilities, systems, and materials relating to Seller’s obligations under a Purchase Order or these Terms and Conditions or relating to Seller’s charges to Purchaser. Purchaser shall also have the right, at any time and for anu reason or no reason at all, to request any assurances (e.g., commercial, financial, or technical) from Seller that Purchaser, in its sole discretion or opinion, deems necessary or warranted (or the like) to ensure the proper prosecution of a Purchase Order or the proper prosecution of the delivery or performance of the goods or services.

12. Independent Parties

Seller and Purchaser are independent contracting parties and nothing in a Purchase Order or these terms and conditions shall be deemed to make either party the partner of the other party or to create any relationship of partner or the existence of any partnership; moreover, nothing in a Purchase Order or these Terms and Conditions shall be deemed to make either party an employee or agent of the other party for any purpose, nor grant either party with any authority to assume or create any obligation or liability on behalf of the other party. The relationship created by a Purchase Order or these Terms and Conditions is solely independent or solely contractual in nature.

13. Assignments and Subcontracts

Seller shall not assign or subcontract any portion or part of a Purchase Order without the prior written approval of Purchaser. Any assignment or subcontract without prior written approval of Purchaser shall be void and enforceable. Purchaser reserves the right to review any proposed assignment or subcontract and any related documents prior to approving any proposed assignment or subcontract by Seller.

14. Waiver

Purchaser’s failure to demand any performance of any of these Terms or Conditions or to exercise or enforce any right, remedy, or privilege shall not constitute a waiver to subsequently demand said performance or exercise or enforce said right, remedy, or privilege, nor shall said failure constitute a waiver to subsequently demand or exercise or enforce any of these Terms or Conditions.

15. Limitation on Purchaser’s Liability

In no event shall Purchaser be liable to Seller for any indirect, special, or consequential damages concerning or regarding or in any way relating to a Purchase Order or these Terms or Conditions or the goods or services and the delivery or performance thereof, regardless of fault or negligence. Purchaser shall also not be liable to Seller for any overhead or profit, office expenses or legal expenses, supervision costs or administration costs.

16. Compliance with Laws

Seller agrees that all goods and services and delivery and performance of the same shall fully comply with all laws, rules, regulations, codes, ordinances (or the like) of any authority or governmental body (i.e., local, municipal, state, or federal) having jurisdiction, including, but not limited to, all local, municipal, state, and federal worker safety, labor, civil right(s), hazardous material(s), and environmental laws. Seller shall also comply with all applicable specifications and requirements (e.g., manufacturer specifications or requirements) and industry best practices and procedures. Seller shall defend, indemnify, and hold harmless Purchaser from any losses, damages, expenses (including but not limited to attorneys', consultants' and experts’ fees), claims, suits, actions, demands, liabilities, fines, penalties, assessments, judgments, damages, losses expenses, or fees or costs (including, but not limited to, attorney, consultant, or expert fees or costs) of any nature asserted or assessed against or incurred by Purchaser because of Seller’s failure to comply with said laws, rules, regulations, codes, or ordinances and any said specifications and requirements and industry best practices and procedures.

17. Governing Law; Venue and Forum

Any Purchase Order shall be governed by the laws of the State of Michigan and construed, interpreted, and enforced in accordance with the laws of the State of Michigan, notwithstanding its choice of law principles or any other rule, regulation, or principle that would result in the application of any other state’s law. The venue or forum for any legal action or proceeding (i.e., mediation, arbitration, or litigation) regarding or concerning any Purchase Order shall be the State of Michigan. The Parties acknowledge and agree that the State of Michigan is a convenient forum or venue for any such legal action or proceeding and waive any defense regarding or concerning forum or venue being inconvenient and waive any objection to personal jurisdiction in the State of Michigan.

18. Notice Requirements

Any notice required to either Party under a Purchase Order or these Terms and Conditions shall be reduced to writing and shall be deemed effective if sent to the Party by approved commercial express mail (e.g., Federal Express) or certified mail ( return receipt requested with required postage prepaid) to the address(es) for the Party stated on the Purchase Order or by email if an email address for the Party is provided by the Party and is stated on the Purchase Order.

19. Claims and Disputes

Any disputes between Purchaser and Seller regarding, concerning, or arising out of the performance or non-performance of a Purchase Order or these Terms and Conditions shall be decided, at Purchaser’s sole discretion, by arbitration according to the Construction Industry Arbitration Rules of the American Arbitration Association and judgment may be entered upon the award of the arbitrator(s) in a court of competent jurisdiction. If Purchaser does not elect arbitration, any dispute regarding, concerning, or arising out of the performance or non-performance of a Purchase Order or these Terms and Conditions shall be decided in a court of competent jurisdiction. In any dispute, whether decided by arbitration or litigation, Purchaser shall be entitled to recover, and Seller shall be obligated to pay the fees and costs, including, but not limited to, attorney, consultant, and expert fees and costs, incurred by Purchaser in such proceeding.

20. Severability

Each term, provision, and condition of a Purchase Order or these Terms and Conditions is intended to be severable. If any term, provision, or condition of a Purchase Order or these Terms and Conditions shall be prohibited by, invalidated under, or deemed void, voidable, unenforceable, unreasonable, or invalid by applicable law, a court of competent jurisdiction, or otherwise, such ruling shall not affect the validity of the remainder of a Purchase Order or these Terms and Conditions.

21. Counterparts

A Purchase Order may be executed in any number of counterparts and any copies, facsimiles, or electronics transmissions or scans shall be treated as originals.

22. Successors and Assigns

A Purchase Order and these Terms and Conditions shall be binding upon and inure to the benefit of the Parties’ successors, assigns, heirs, agents, and representatives.

23. Authority

The undersigned each warrant and represent that they have the authority to enter into, execute, and be legally bound by the Purchase Order and these Terms and Conditions.

24. Informed Execution

The Parties each warrant and represent that they have been given the opportunity to review and the Purchase Order and these Terms and Conditions and discuss the terms, provisions, and conditions of the Purchase Order and these Terms and Conditions with their respective attorneys and have executed the Purchase Order and these Terms and Conditions this Agreement voluntarily and without coercion, duress, or oppression.

25. Entire Agreement

The individual Purchase Order and these Terms and Conditions constitute the entire and integrated individual agreement between the Parties with respect to the subject matter of the individual Purchase Order (i.e., the goods and services subject to the individual Purchase Order)and supersedes any prior negotiations, representations, understandings, and agreements, whether oral or written, between Purchaser and Seller regarding the subject matter of the individual Purchas Order (i.e., the goods and services subject to the individual Purchase Order). The individual Purchase Order and these Terms and Conditions may only be amended or modified by a written amendment or modification signed by both Purchaser and Seller.