HP Hood LLC Goods Services Terms and Conditions

1. Purchaser’s Offer and Vendor/Contractor’s Acceptance: This Purchase Order constitutes an offer by HP Hood LLC ("Purchaser") to the vendor of goods and/or services (“Vendor/Contractor”) according to the description, instructions and conditions set forth in this Purchase Order. Vendor/Contractor shall be bound by this Purchase Order and its terms and conditions when either it accepts this Purchase Order by written acknowledgement, it delivers to Purchaser any of the goods or commences the services, or it performs any other act constituting legal acceptance. Unless specifically accepted in writing, Purchaser hereby expressly objects to and rejects any different or additional provisions. No additional or different provisions which have not been accepted in writing by Purchaser shall be deemed to be a part of this Purchase Order.

2. Shipping: Vendor/Contractor shall properly and carefully package any goods to be shipped hereunder to minimize risk of damage in transit. Packing slips must accompany the shipment. Invoices, packing slips and containers must be clearly marked and bear the Purchase Order number, description of the item(s) and complete shipping information including any person’s name which appears on the “ship to” instructions. Purchaser shall have the right at any time to specify the carrier or method of transportation. Goods shipped pursuant to this Purchase Order are f.o.b. Purchaser's dock and must be shipped to assure arrival at "ship to" point free of damage and deterioration. Notwithstanding anything in the forgoing to the contrary, title to and risk of loss of the goods shall pass to Purchaser only upon receipt of the same by Purchaser, and any rightful rejection or revocation of any goods by Purchaser shall immediately shift the risk of loss of such goods, wherever located, to Vendor/Contractor. All containers, pallets, drums, carboys or like packaging materials to be returned to Vendor/Contractor, must be shipped by Vendor/Contractor on a no charge or consignment basis.

3. Scope of the Work: If applicable, Vendor/Contractor, as promptly and as economically as practicable, shall perform all necessary engineering services, shall procure, order and furnish all of the required materials, labor and equipment, and perform all of the services necessary for the successful completion of the work set forth in the Purchase Order, or in any accompanying change order executed hereunder, and in any specifications, drawings, project schedule or other descriptive data that may be referred to therein (the “Work”). The Purchase Order, these Terms, all change orders, specifications, project schedule, drawings and other documents referred to in the Purchase Order or any change order are collectively referred to hereinafter as the “Contract”).

4. Payment: Unless otherwise provided in the Purchase Order or any relevant change order, payment shall be made on the following basis: (a) 90% payment for Work performed in any month will be made on or before the 30th day of the following month provided that Vendor/Contractor supports any invoice submitted for payment with such data substantiating his claim for payment as Purchaser may require; (b) the remaining 10% will be retained by Purchaser until all Work, if any, is completed and the period allowed for filing any liens has elapsed, except that the remaining 10% will be withheld only until the Work is completed if at such time Vendor/Contractor has delivered to the Purchaser a complete release of all liens arising out of this contract, or receipts covering in full all labor and materials for which a lien could be filed, or a bond satisfactory to Purchaser indemnifying Purchaser against any lien arising out of Vendor/Contractor’s performance of the Work hereunder. If there is no Work to be completed under the Purchase Order, payment shall be made on or before the 30th day following delivery of the goods to Purchaser.

5. Changes, Alterations and Modifications: Purchaser may at any time by a written change order modify the extent of the work. If such change causes an increase or decrease in costs or time required for performing the Work, Vendor/Contractor shall so advise Purchaser in writing and an equitable adjustment of the sum paid to Vendor/Contractor hereunder shall be made except that any claim for adjustment by Vendor/Contractor shall be deemed waived if not asserted in writing within thirty (30) days from the date Vendor/Contractor receives written notice of the change.

6. Time of Completion of Work: Vendor/Contractor shall commence any Work hereunder immediately and shall complete all Work in accordance with the terms of this Contract. If Vendor/Contractor is delayed in the completion of the Work by labor strikes, lockouts, fire, unavoidable casualties, or other causes beyond the control of Vendor/Contractor and without its fault or negligence, then the time for completion of said Work may be extended by a written notice of extension signed by the Purchaser.

7. Title: Vendor/Contractor warrants to Purchaser good title (free and clear from all liens, encumbrances, claims, and other defects in title) to any goods or equipment supplied under the Contract.

8. Insurance: All Vendors/Contractors providing services and/or products pursuant to these Terms And Conditions shall maintain the following insurance coverages and related provisions at all times during the provision of such services/products:

  • Statutory Workers’ Compensation and Employer’s Liability with total limits of not less than $500,000 each accident/each disease. The policy(ies) providing such coverage shall contain a waiver of subrogation provision which waives the insurer’s right of subrogation against Purchaser.
  • Commercial General Liability with total limits of not less than $5,000,000 per occurrence. The policy(ies) providing such coverage must be written on an occurrence form, include Products and Completed Operations coverages, name Purchaser as an additional insured, and contain a waiver of subrogation provision which waives the insurer’s right of subrogation against Purchaser.
  • Commercial Automobile Liability with total limits of not less than $2,000,000 (combined single limit) each accident or loss and providing coverage for all owned, hired and non-owned vehicle exposures. The policy(ies) providing such coverage shall name Purchaser as an additional insured.

In addition to all other insurance requirements in this Section 8, any Vendor/Contractor providing professional consulting, architectural, and/or engineering services shall also maintain Professional Liability coverage with total limits of not less than $2,000,000 each act/error/omission.

Vendor/Contractor may satisfy all total coverage limit requirements through a combination of primary, excess and/or Umbrella Liability policies, provided such combinations extend coverages that are the same or greater/broader in amount and scope.

If any services are to be provided by subcontractors of the Vendor/Contractor, then Vendor/Contractor shall require each such subcontractor to maintain the same coverages (inclusive of minimum limit amounts) and related provisions as required of Vendor/Contractor in this Section 8.

Prior to Vendor’s/Contractor’s and/or its subcontractor’s access to Purchaser’s premises (and further at the request of Purchaser or its representative), Vendor/Contractor shall provide Purchaser with certificates of insurance evidencing Vendor’s/Contractor’s and/or its subcontractor’s insurance coverages and related provisions as required herein and shall provide Purchaser with advance written notice of cancellation of its, or its subcontractor’s, coverages as required herein. All certificates of insurance and coverage cancellation notices must be sent to HP Hood LLC, Attn. Risk Management Dept., Six Kimball Lane, Lynnfield, MA 01940.

Any exceptions to the requirements as set forth in this Section 8 must be approved in writing by Purchaser’s Risk Management Dept.

9. Subcontracts for Work: Vendor/Contractor shall not subcontract Work hereunder without the prior written consent of Purchaser and any such subcontract without written consent of Purchaser shall be null and void. Notwithstanding any consent by Purchaser to a proposed subcontract, Vendor/Contractor shall remain responsible for all subcontracted Work and shall be fully responsible to Purchaser and defend, indemnify and hold Purchaser harmless from and against any and all acts or omissions of its subcontractors, their agents, representatives and employees undertaken in connection with the contract. Vendor/Contractor shall incorporate in every subcontract the subcontractor’s agreement to be bound to terms and conditions materially and substantially comparable to those contained herein.

10. Waiver of Claims, Liens, etc.: Vendor/Contractor on behalf of itself and its subcontractors, material men and workmen hereby expressly waives and agrees to indemnify and save harmless Purchaser from all attachments, claims and liens against Purchaser and Purchaser’s owned or rented property by reason of labor or equipment furnished for any Work hereunder.

11. Compliance with Applicable Laws: Before commencing the performance of any Work under these Terms, Vendor/Contractor shall supply all necessary building permits for the erection of permanent structures and all other permits and licenses as necessary for the Work and before and during the progress of Work give all notices and comply with all laws, ordinances, rules and regulations relating to the performance of the Work.

12. Vendor/Contractor’s Guarantee: In addition to any other express or implied warranties, Vendor/Contractor guarantees to Purchaser that all Work performed and goods and equipment supplied hereunder shall be in accordance with the specifications and other related documents and free from defects of any kind, nature or description on completion of the Work and for a period of one (1) year thereafter. Vendor/Contractor agrees to promptly remedy and cure any such defect(s) and any damages caused thereby at its own sole cost and expense upon written request to do so from Purchaser. Repaired or replaced Work shall carry the same guaranty as the original Work for a period of at least one (1) year following completion of the repair or replacement. Vendor/Contractor further warrants that all goods and/or equipment (i) will be fit and sufficient for the purpose intended; (ii) will be merchantable, of good quality and workmanship and free from defect; and (iii) will be properly labeled and in conformity with all federal, state or municipal laws, rules and regulation.

13. Indemnification: Vendor/Contractor agrees to indemnify, defend and hold harmless the Purchaser from and against all claims, damages, actions, liabilities, loss, damages, cost or expense (including reasonable attorneys’ fees) arising out of or in connection with (a) any breach by Vendor/Contractor of the terms of this Contract, (b) the acts or omissions of Vendor/Contractor, its agents, employees, independent contractors or others in fulfillment of these Contract terms, and (c) any defect(s) in any Work performed hereunder.

14. Compliance with Purchaser’s Rules and Procedures; Cleaning Up: In the performance of any Work, Vendor/Contractor shall comply with the Purchaser’s manufacturing facilities’ rules, procedures, policies, good manufacturing practices, safety rules and practices and vendor safety policies in connection with the performance of work at Purchaser’s premises. Vendor/Contractor shall at all times keep the premises free from accumulations of waste material or rubbish caused by its employees or the work hereunder, and at the completion of the work, it shall remove from the Premises all rubbish, implements, and surplus materials and shall leave the premises broom clean.

15. Hazard Communications: Vendor/Contractor acknowledges that it has been informed of hazardous chemicals present at Purchaser’s plant, the location of all MSDS’s for such chemicals and measures it may take to lessen the possibility of exposure. Vendor/Contractor shall be responsible for the safety of all personnel on the work and others who may be affected thereby, and shall take all necessary precautions to protect such persons from injury in work areas.

16. Assignment: None of the sums due or to become due, nor any of the Work to be performed under this Contract shall be assigned without the prior consent of Purchaser.

17. Termination: (a) Anything in this Contract to the contrary notwithstanding; if Vendor/Contractor should so fail to make progress as to endanger performance of this Contract in accordance with its terms or if it should fail to make prompt payment to subcontractors or for material or labor, or violate any laws, ordinances or regulations, then Purchaser may immediately terminate this Contract in whole or in part upon written notice to Vendor/Contractor and proceed to complete the work, in which event Vendor/Contractor shall be liable for any resulting excess cost to Purchaser. (b) In addition to the provisions of paragraph (a), Purchaser shall have the right to terminate this Contract without cause at any time upon five (5) days written notice to Vendor/Contractor, but in that event, Purchaser shall pay Vendor/Contractor for all Work satisfactorily completed under the Contract prior to the effective date of termination, and in no event shall the Purchaser be liable for any consequential or incidental damages or anticipatory profit.

18. Taxes: Vendor/Contractor agrees that its proposal includes all applicable federal, state and local taxes in effect at the date of this Contract. Vendor/Contractor further agrees to indemnify Purchaser for any taxes subsequently assessed under this Contract, which Vendor/Purchaser failed to include in its pricing or failed to pay in full.

19. Independent Contractor: Vendor/Contractor shall act as an independent contractor throughout the performance of any Work. Vendor/Contractor shall not represent, nor shall Vendor/Contractor have any authority to bind or otherwise obligate Purchaser.

20. OSHA Compliance: All equipment provided under this Contract shall comply with OSHA standards. Vendor/Contractor shall notify Purchaser of any safety defects that are discovered prior to and after installation of this equipment. During the warrantee period, the Vendor/Contractor shall correct any such deficiencies at no cost to Purchaser. After the warrantee period, the Vendor/Contractor shall assist Purchaser in correcting any such deficiencies.

21. Miscellaneous: (a) Written notice under this Contract shall be deemed to have been served when delivered in person or sent by certified mail, overnight delivery service providing for a receipt or telegram to either of the parties hereto at their then current address. (b) Failure of either party to enforce any provision of this Contract shall not be deemed a waiver of such provision or of subsequent failures to comply with such provision or a waiver of the party’s right to enforce that provision in the future or to enforce any other provision of the Contract. (c) This Contract contains all the terms, conditions and provisions pertaining to the work and may not be altered or amended in any way whatsoever, except by a writing signed by both parties. (d) The headings of this Contract have been inserted for convenience only and are to be ignored in construing any of the provisions herein. (e) This Contract shall be governed by the laws of the Commonwealth of Massachusetts governing contracts executed in and to be wholly performed therein without regard to Massachusetts’ choice of law or conflicts of law provisions.

22. Arbitration: If at any time a controversy between Purchaser and Vendor/Contractor arises as to the meaning or operation of this Contract or any component thereof, such controversy shall be submitted to arbitration by either party in the City of Boston before a single arbitrator to be mutually agreed by the parties. If the parties are unable to agree, then the President of the Boston branch of the American Arbitration Association shall appoint the arbitrator. Proceedings shall be conducted in accordance with the rules of the American Arbitration Association or any successor organization. The decision of the arbitrator shall be binding on the parties and judgment on any award may be entered in any court having jurisdiction thereof. The costs of the arbitration shall be borne equally by the parties, however, unless otherwise provided herein, each party shall be responsible for its own attorney and expert fees.