PURCHASE ORDER TERMS & CONDITIONS

  1. COMPLETE CONTRACT: This Purchase Order (hereinafter, “PO” or “Contract”) and any attachments hereto constitutes the entire Contract between USA Millwork, LLC and its respective subsidiaries to include USA Millwork Atlanta, LLC; USA Millwork DC, LLC, USA Millwork Denver, LLC; USA Millwork Mission Bell, LLC; and USA Millwork Great Lakes, LLC; (hereinafter, “USA Millwork”) and the supplier identified on this Contract (hereinafter, “Supplier”). There are no other contracts, oral or written, pertaining to the work to be performed under this PO. This PO can be modified only by a contract in writing signed by the parties. By providing the supplies or materials to USA Millwork, the Supplier agrees to the terms and conditions of this Contract and its associated purchase order.
  2. ACCEPTANCE OF TERMS: This PO is expressly conditioned on Supplier's acceptance of all the terms and conditions set forth herein.  USA Millwork expressly objects to any additions, deletions or differences in the terms or conditions contained in Supplier's quotation, proposal, acknowledgment, or other document, whether such additions, deletions or differences materially alter this PO. This PO may be issued in addition to other duly signed USA Millwork agreements, exhibits and schedules incorporated therein (“Agreement”) made with respect to the subject matter of this PO. In the event of an inconsistency or conflict between the provisions of any Agreement and this PO, the inconsistency or conflict will be resolved by giving precedence in the following order:  (a) the Agreement; (b) the provisions appearing on the front and reverse side of this PO and (c) other provisions when attached and agreed to in writing by USA Millwork.
  3. PERFORMANCE: Time is of the essence in the performance of this PO. Supplier acknowledges that it knows, accepts, and agrees to meet required delivery date or dates and shall be solely responsible for the same. If the goods are not delivered or the services not provided in the manner and at the times specified, USA Millwork reserves the right without liability and in addition to its other rights and remedies to immediately 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 Supplier, and/or (b) purchase substitute goods and charge Supplier with any loss or additional costs USA Millwork incurs.  Supplier may deliver goods up to three (3) days prior to required delivery date.  Deliveries from Supplier prior to that must be agreed upon in writing by USA Millwork.  USA Millwork reserves the right to change the required delivery date up to two business prior to such date.  Supplier will promptly advise USA Millwork in writing of any delay in performance or circumstance in the execution, processing, or shipment of this order which may impair Supplier’s ability to meet the required delivery date(s) or which may otherwise impact the discharge of Supplier’s obligations under this Agreement including notice with regard to any goods placed under backorder, immediately upon when such delay is determined.  Supplier’s performance is not deemed completed until the goods or services have been accepted by USA Millwork.  Unless otherwise agreed to in writing, all goods shipped under this PO are to be shipped DDP USA Millwork’s facilities. Supplier acknowledges liability for damages to USA Millwork resulting from the Supplier’s failure to perform in a timely manner and USA Millwork shall recover all damages it may sustain as well as all costs, including attorney’s fees, which may arise from enforcement of this agreement or due to Supplier’s failure.Should Supplier’s performance, in whole or in part, be delayed, disrupted, or suspended for reasons beyond Supplier’s control and without its fault or negligence, Supplier’s sole remedy shall be a reasonable extension of time in which to complete its work, but only if: 1.) Supplier shall have timely notified USA Millwork in writing of the cause of the delay no later than two (2) business days from the event giving rise to the delay and 2.) a similar extension has been granted to USA Millwork by its customer(s) and/or project Owner(s).
  4. COMPETITIVE PRICING: If Supplier offers lower prices to another customer for like or lesser quantities of goods or services during the same period and under similar terms and conditions as Buyer, those prices will be made known and available to USA Millwork at the time of their availability to the customer. Prices will at least be competitive with industry prices and, if not, Supplier will use reasonable efforts to adjust its prices so that they are competitive.
  5. INSPECTION: All goods and services purchased hereunder are subject to inspection by USA Millwork 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 Supplier from responsibility to meet the requirements of this PO.  This includes defects that could not be reasonably discovered upon initial inspection, i.e., damage to the surface of a sheet of material of a part of a multi sheet delivery. In the event the goods or services do not meet the applicable specifications and instructions, Supplier will promptly re-perform the nonconforming services or provide replacement goods satisfactory to USA Millwork at Supplier’s sole expense.  If Supplier is unable to accomplish the foregoing, USA Millwork may procure such goods or services from another source and charge to Supplier’s account all costs, expenses and damages associated therewith.
  6. PAYMENT: Invoices must contain the following information: PO number, part numbers (if contained in the PO), 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 submitted hereunder will be paid Net 90 days after receipt of a correct invoice or acceptance of goods or services by USA Millwork, whichever occurs later, unless otherwise agreed upon in writing.  Any adjustments in Supplier’s invoices due to late performance, rejections, or other failure to comply with the requirements of this PO may be made by USA Millwork before payment.  Payment does not constitute final acceptance.  USA Millwork may offset against any payment hereunder any amount owed to USA Millwork by Supplier or its affiliates.  In order to release payment, a “Three Way Match” must occur.  Accounts Payable staff will review the quantities, prices, and terms to validate that what was listed on the purchase order matches the goods received (via the order receipt/packing slip) which matches what they are being charged as documented on the invoice).  If goods shipped or services performed do not match specifications and/or quantities listed on the PO, USA Millwork bears no obligation to pay for such goods or services.  Any failure in such matching may mean some or all payments to such Supplier will be held until discrepancy can be resolved.  USAM staff will make best efforts to resolve any discrepancies in a reasonable time period, in order to avoid unnecessarily delaying payment.
  7. CHANGES: USA Millwork may, by written notice to Supplier, 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.  For any reason, USA Millwork may also direct Supplier 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 USA Millwork to be necessary or desirable.  Except for delivery changes less than 90 days, 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 upon such agreement and approval by USA Millwork.  The Supplier agrees to provide a detailed labor (if applicable) and material breakdown in writing within three (3) business days from the date of any change directive.  Failure to make a timely claim shall constitute a waiver of any such claim.  If the value of the modification cannot be mutually agreed upon on the basis of unit prices or negotiated lump sum, then the value of such change will be as determined by USA Millwork and in accordance with allowable cost and/or time modifications as so provided to USA Millwork by USA Millwork’s customer(s) or project owner(s).
  8. CONFIDENTIAL INFORMATION: USA Millwork and Supplier acknowledge that in their course of dealings, Supplier may acquire from USA Millwork confidential and proprietary information about USA  Millwork, 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 USA Millwork will only be disclosed to Supplier’s employees, agents or consultants with a need to know and who are under a written obligation to keep the information confidential. Supplier will not disclose the Confidential Information to any third parties. Supplier 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 USA Millwork Confidential Information.
  9. TERMINATION: USA Millwork may terminate this PO in whole or in part at any time with and without cause.  Upon notice of termination, Supplier will inform USA Millwork 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 USA Millwork any goods or Work Product, which then exists.  USA Millwork will pay Supplier for goods or services accepted and performed through the effective date of termination provided that USA Millwork will not be obligated to pay more than the payment that would have been due had Supplier completed or provided the goods or services.  USA Millwork will have no further payment obligation in connection with any termination.
  10. SUBCONTRACTS AND ASSIGNMENTS: Supplier agrees to obtain USA Millwork's written approval before subcontracting this PO or any portion thereof.  This PO is not to be assigned or delegated by Supplier without the prior written consent of USA Millwork.
  11. LAWS AND REGULATIONS: All Supplier actions related directly or indirectly to the performance of this PO will comply with all applicable anti-corruption laws. Accordingly, Supplier will not offer, promise, or provide any payments, loans, gifts of money, or anything of value to secure an improper advantage or for a corrupt purpose as described in applicable law. Furthermore, Supplier warrants it shall be in full compliance with all applicable local, state, and Federal laws, ordinances, and regulations.
  12. INSURANCE: Supplier will secure and maintain insurance providing sufficient coverage to comply with its obligations and duty to indemnify as required under this and all PO’s with USA Millwork and its other business obligations.  Within five (5) days of receipt of a request from USA Millwork, Supplier agrees to provide USA Millwork with a certificate of insurance evidencing Supplier’s insurance coverages. USA Millwork’s failure to request or verify insurance coverage does not relieve Supplier from this obligation.
  13. PUBLICITY AND DISCLOSURE: Without securing the prior written consent of USA Millwork in each instance, Supplier will not use the name or logo of USA Millwork or USA Millwork’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.
  14. NON-WAIVER OF RIGHTS: The failure of USA Millwork to insist upon strict performance of any of the terms and conditions in this PO or to exercise any rights or remedies hereunder will not be construed as a waiver of its rights to assert any of the same or any other terms and conditions under this PO.


    REMEDIES:  Any rights and remedies specified under this PO are cumulative, non‑exclusive and in addition to any other rights and remedies available at law or in equity.

  15. 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.
  16. 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.
  17. CLAIMS AND DISPUTES: If any disputes arise between USA Millwork and Supplier regarding performance of the Contract, or any alleged change in the supplies, or payment for the Supplies, Supplier shall timely perform the disputed work and shall give written notice of a claim for additional compensation for the supplies prior to commencement of the disputed work; however, any such notice of claim must be provided within two (2) business days of the event giving rise to such claim.  Supplier’s failure to give timely written notice prior to commencement constitutes an agreement or accord by Supplier that it will receive no extra compensation for the disputed materials.
  18. ATTORNEY’S FEES: In the event an arbitration or any action at law or in equity shall be brought after mediation on account of any breach of this Contract, or to enforce or interpret any of the provisions of this Contract, the prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees, costs and/or monetary expenditures, which shall be fixed by the tribunal or court and be made a part of any award or judgment rendered; however, excluding those actions brought under the obligations detailed in Section 20 for which the Supplier is responsible.
  19. INDEPENDENT CONTRACTOR RELATIONSHIP: The status of the Supplier shall be that of an independent contractor. Nothing in this Contract should be construed to create a partnership, joint venture, agency, or employer-employee relationship between USA Millwork and the Supplier.
  20. INDEMNITY: To the fullest extent permitted by law, Supplier shall indemnify, defend, and hold harmless, USA Millwork, its employees, officers, directors, subsidiaries, and affiliated companies from and against any and all claims, related to defective, non-conforming or otherwise damaged materials tendered to USA Millwork or otherwise related to or flowing from this Contract in any way in whole or in part, including attorney’s fees incurred or suffered by USA Millwork arising out of Supplier’s performance of this Agreement or on account of any breach of the provisions or covenants of this agreement.  Further, Supplier shall bear all risk of loss pursuant to “Duty Delivery Paid per INCOTERMS, location: USA Millwork LLC, 16100 Jacqueline Court, Morgan Hill, CA 95037” under this Contract.
  21. RIGHTS OF SETOFF AND RIGHTS TO PROTECT AGAINST LIENS. In the event of any breach by the Supplier of any provision or obligation of this agreement, or in the event of the assertion by other parties of any claim or lien against USA Millwork or its projects arising out of Supplier’s performance of this agreement, USA Millwork shall have the right, but is not required, to retain out of any payments due or to become due to the Supplier, an amount sufficient to completely protect USA Millwork from any and all loss, damage, and costs, including attorney’s fees, until the situation has been remedied or adjusted by  the Supplier to the satisfaction of USA Millwork.  To the fullest extent allowed by law, the Supplier agrees to hold USA Millwork harmless from any and all liens of persons furnishing material or labor or appliances in connection with this agreement.  Supplier shall obtain a release, by payment, bonding over, or otherwise, of any mechanic’s or materialman’s lien(s) against the USA Millwork’s projects or customers, or property of the same, by any person claiming amounts due from Supplier in connection with this Agreement, which release shall be obtained within ten (10) days of demand thereof by USA Millwork. If, after completion of this agreement and final payment, any such lien or claim shall appear, Supplier shall completely indemnify USA Millwork, and its customers against any loss, damage and costs, including attorney’s fees, which may be suffered by reason thereof.  USA Millwork may also require of the Supplier satisfactory evidence as to the status of its accounts with any material supplier or labor account at any time.
  22. WARRANTY: Supplier warrants to USA Millwork that all materials and supplies furnished shall be new unless otherwise specified and shall be of good quality, free from faults, non-conformity and defects and in conformance with the specifications contained in the PO.  All supplies not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective.  Any supplies so deemed defective shall be immediately corrected by the Supplier at the Supplier’s sole expense.   However, Supplier shall not be obligated to indemnify or defend the Indemnified Parties for claims finally determined by a court of law or arbitrator to arise from the sole negligence or sole willful misconduct of the Indemnified Parties.  Unless otherwise prescribed in USA Millwork’s contract documents with the General Contractor for the specific project for which this PO was entered into, such warranty will remain in effect for a period of one (1) year from the date of USA Millwork’s work for the project Owner.
  23. CHOICE OF LAW AND VENUE: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to conflicts of law principles. The parties agree that in the event that any suit or proceeding is brought in connection with this Agreement, such suit or proceeding shall be brought in the appropriate state or federal courts located the State of Delaware, and the parties shall submit to the exclusive jurisdiction of such courts and waive any and all jurisdictional, venue and inconvenient forum objections to such courts.
  24. DISPUTE RESOLUTION: If a dispute arises out of this Contract or its breach, the Parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be resolved through direct discussions, the parties agree that any controversy or claim arising out of or relating to this agreement, or breach thereof shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (current edition), and judgment may be entered in any court having jurisdiction thereof.  As an alternative preceding arbitration, if agreed to by both parties, they may submit the dispute to mediation.  The mediation of the dispute shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association (current edition).