1. Empire Southwest, LLC (“Empire”) is issuing a Purchase Order to the vendor identified thereon (“Vendor”) to purchase certain goods and/or services as more particularly described thereon (the “G&S”). These Purchase Order Terms and Conditions (“Terms”) govern, and are an essential part of, the Purchase Order between Empire and Vendor. For ease of reference, the Purchase Order and the Terms are collectively referred to herein as the “PO.”
2. The PO governs the rights and liabilities of Empire and Vendor and is the sole and exclusive agreement of the parties with respect to the G&S (unless a separate agreement relating specifically to the G&S is executed by a vice president of Empire). Empire hereby rejects the terms of any document submitted by Vendor; these Terms may not be modified by any document issued by Vendor or by the parties’ course of dealing, custom or usage, but only by an agreement signed by a vice president of Empire. These Terms shall apply even where Empire accepts delivery of G&S without reservation, having knowledge of conflicting or deviating Vendor terms and conditions. Acknowledgement, acceptance, shipment or performance of any part of the PO by Vendor constitutes acceptance of the entire PO, including these Terms, exactly as written.
3. If the PO is for procurement of ongoing G&S from Vendor over a period of time, these Terms shall apply to all such G&S and invoices for such G&S shall be submitted to Empire not more frequently than once every thirty days. Payment terms for undisputed amounts are net thirty days from Empire’s acceptance of the G&S or receipt of invoice, whichever is later. Empire shall have the right to terminate the PO, or any portion thereof, without cause on ten days’ notice. The applicable PO number must appear on all invoices, packages and correspondence pertaining to the PO. Whether or not separately stated on Vendor’s invoice or on the PO, Vendor shall be responsible for remitting to the appropriate taxing authority any state or local transaction privilege tax and/or sales tax related to the G&S provided by Vendor. Any other federal, state, or local taxes of any type assessed on Vendor due to the provision of the G&S shall be the sole responsibility of Vendor.
4. Vendor must pack all goods delivered pursuant to the PO in accordance with good commercial practices. Unless otherwise specifically provided on the PO, Vendor must ship goods in the most cost-effective manner, FOB Empire’s designated delivery point. Time is of the essence with respect to delivery or completion of the G&S, as applicable. If the G&S are not delivered or completed by the date stated in the PO, Empire will have all rights and remedies available at law and in equity.
5. All G&S are subject to inspection, testing, approval and acceptance by Empire within a reasonable time after delivery or performance. Empire’s payment of an invoice shall not constitute acceptance of the applicable G&S, and Empire's inspection, testing, approval, acceptance or use of the G&S shall not affect Vendor's obligations and warranties herein. Empire may reject any G&S that are, in Empire's judgment, defective and/or do not conform to the terms or specifications of the PO. If G&S are non-conforming, Empire will have all rights and remedies available at law and in equity.
6. Vendor shall not invoice Empire for any charges in excess of those set forth on the PO. Empire may request changes, additions, or deletions to the PO by notice to Vendor. If such changes, additions or deletions would require additional charges or alter the delivery or completion schedule, Vendor must obtain prior written approval from Empire before proceeding with the changes or Empire will have no obligation to pay such additional charges or accept such schedule alterations. Empire shall have the right to audit Vendor records related to the G&S Vendor is providing to Empire.
7. Vendor warrants to Empire, its successors, assigns, employees, agents and clients, that all G&S will: (a) conform to the terms of the PO and all applicable samples, drawings, standards, specifications, performance criteria and other descriptions; (b) be merchantable, safe and appropriate for the purpose for which such G&S are normally used; (c) not infringe upon the rights of any third parties; (d) comply with all applicable federal, state and local laws and regulations, including, the requirements of the U.S. Foreign Corrupt Practices Act of 1977 (FCPA); (e) not be subject to any liens, encumbrances, security interests, or other third party claims (Vendor must deliver written lien releases if requested by Empire); (f) be new (unless otherwise noted on the PO); and (g) with respect to services, be performed diligently, in a good and workmanlike manner in accordance with the highest standards in Vendor’s trade or industry.
8. Before commencing work for Empire, Vendor must obtain, and must maintain in effect, workers’ compensation insurance (in accordance with applicable law), employer’s liability insurance (not less than $1,000,000 per person, per accident), automobile liability insurance (owned, non-owned and hired, with a combined single limit of $1,000,000), and general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate), all in accordance with Empire’s standard insurance requirements. Vendor’s required policies shall be primary, and any insurance maintained by Empire shall be excess and non-contributory. Vendor must provide an insurance certificate to Empire evidencing all of the foregoing before commencing work for Empire. Additionally, Vendor’s required policies must be endorsed to name Empire parties as additional insureds and to include waivers of subrogation, and such endorsements shall be provided to Empire along with the insurance certificate. Empire’s standard insurance requirements do not limit or qualify the liabilities, obligations, warranties or indemnities of Vendor hereunder.
9. Vendor shall defend, indemnify, and hold harmless Empire, its subsidiaries and affiliated companies, and their respective owners, officers, directors, employees and agents for, from and against all claims, liabilities, losses, demands, penalties, forfeitures, suits, damages, judgments, costs and expenses, including attorneys’ fees, expert witness fees and costs arising out of or related to the PO, the G&S or the Vendor’s actions or inactions related to the same. In no event shall Empire be liable for any special, incidental, indirect, punitive, exemplary or consequential damages, regardless of whether or not Empire was advised of the possibility of such damages.
10. In the event of any breach of the PO by Vendor, Empire shall have all rights and remedies available at law and in equity in addition to any rights or remedies specifically described herein, including but not limited to one or more of the following: (a) Empire may reject non-conforming G&S, and Vendor shall refund the price of such non-conforming G&S and all costs related thereto; (b) Empire may require Vendor to replace or correct any such non-conforming G&S at no additional cost to Empire; (c) Empire may replace any non-conforming G&S from another source, and/or take corrective action with respect to any non-conforming G&S, and obtain reimbursement from Vendor for all costs incurred by Empire in connection therewith; and (d) Empire may terminate the PO.
11. All information Empire provides to Vendor that is not available to the general public, all specifications and documents prepared by Vendor in connection the PO, and all other non-public information that Vendor obtains as a result of the PO constitute confidential information of Empire. Without prior written consent by a vice president of Empire, Vendor shall not (a) disclose or use Empire’s confidential information for any purpose other than performing the PO; (b) announce, publicize or discuss with third parties the subject matter of the PO; or (c) include Empire’s name or trademarks in any marketing materials. All specifications, drawings, schematics, technical information, data, tools, test equipment, and other materials furnished by Empire to Vendor shall remain Empire’s property. All specifications, drawings, schematics, technical information, data, tools, test equipment, goods and other materials, and work product and intellectual property rights in all of the foregoing, generated in whole or in part by Vendor in relation to the PO (“Property Rights”), will be considered work for hire and will constitute Empire’s sole and exclusive property, whether delivered by Vendor to Empire or not, and shall be provided to Empire immediately upon request. If any Property Rights are not considered works for hire owned by Empire by operation of law, Vendor hereby assigns all right, title, and interest in such Property Rights, including, but not limited to, all copyrights in such Property Rights, to Empire.
12. Unless exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the contractor and subcontractor shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
13. Vendor must abide by all Empire's rules and regulations while on Empire’s premises and while fulfilling its obligations under the PO, including, but not limited to, all rules and regulations related to safety, health and hazardous materials. Prior to bringing any hazardous materials onto Empire’s premises, Vendor shall provide written notice to Empire and provide Empire with material safety data sheets and any other documentation reasonably requested by Empire.
14. The PO is to be construed and interpreted in accordance with Arizona law, without giving effect to its conflict of law provisions. Vendor irrevocably consents to exclusive jurisdiction and venue in Maricopa County, Arizona. The PO shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted. Vendor shall not assign or subcontract the PO, or any portion thereof, without the prior written approval of a vice president of Empire, and such approval may be withheld in Empire’s sole and absolute discretion. Any attempted assignment or subcontract in violation of the foregoing shall be void and of no force and effect. Vendor acknowledges and agrees that it is an independent contractor with respect to Empire and that its employees, representatives and any permitted subcontractors are not agents or employees of Empire, regardless of where they perform services. If any provision of the PO is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the validity of the remaining provisions. If Empire fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder, such failure shall not constitute a waiver of such term, condition, right or privilege. No provision of the PO may be waived or modified, except in a writing signed by a vice president of Empire. The PO is non-exclusive; Empire reserves the right to obtain like goods and/or services from other sources.
Empire Southwest is an EEO/Affirmative Action Employer.
Empire is committed to working with and providing reasonable accommodation to individuals with disabilities. If, because of a medical condition or disability, you need a reasonable accommodation for any part of the employment process, please e-mail firstname.lastname@example.org or call (480) 633-5440 and let us know the nature of your request and your contact information.