Terms and Conditions of Sale of ORR Protection Systems, Inc.

ORR Protection Systems, Inc.’s

Purchase Order Terms and Conditions

(V. 01.10.2022)

1. Acceptance. These Purchase Order Terms and Conditions (“Agreement”) shall be binding and applicable upon all Work (as defined below) purchased by ORR Protection Systems, Inc. (“ORR”) and performed by any recipient of an ORR Purchase Order (“Subcontractor”). It is specifically understood and agreed that the time and place for performance, the amount of payment, and the specific work to be performed by Subcontractor shall be determined by written notice in the form of a purchase order or other notice from ORR to Subcontractor which has been accepted by Subcontractor, or a bid or other proposal from Subcontractor accepted by ORR (each, a “Purchase Order”). Acceptance of a Purchase Order shall occur on the earlier of 1) Subcontractor’s written acceptance of the Purchase Order, 2) commencement of Work, or 3) five (5) business days after issuance of the Purchase Order, if Subcontractors has not rejected the same, in writing. In the event of a conflict between the terms and conditions of a Purchase Order and this Agreement, the terms and conditions of this Agreement shall govern. Any terms and conditions contained in Subcontractor’s response to a solicitation for a proposal, work orders, scope of work, purchase order acknowledgments or any other agreements that are inconsistent with terms and conditions contained in this Agreement are superseded and governed by this Agreement and shall not be effective or binding as to ORR. This Agreement contains the entire understanding between the parties, and all prior or contemporaneous promises, representations, agreements and understandings are expressly merged herein and superseded hereby.
2. Work. Subcontractor agrees that in exchange for the Price (defined below), it shall furnish all materials, supplies, equipment, labor and services necessary to perform and complete the work as detailed in the Purchase Order and as provided herein, including, without limitation, any related activity necessary to complete the scope of work reasonably inferable therefrom (collectively the “Work”), in a good, timely and workmanlike manner. It shall be the responsibility of Subcontractor to examine, review and understand the Purchase Order relating to the Work (including the services and materials to be provided by Subcontractor), and it shall further be the responsibility of Subcontractor to familiarize itself with all conditions which may affect the Work. In performing the Work and as applicable to the Work, Subcontractor agrees to assume and be bound to ORR by the same duties, obligations and responsibilities as ORR is to the general contractor and owner (collectively “Owner”) under the agreement between ORR and the Owner (the “Prime Contract”) of the applicable site where the Work will be performed (the “Work Site”). In the event of a conflict between this Subcontract and the Prime Contract, the provisions imposing the greater duty, obligation and responsibility on Subcontractor shall govern in all respects. Accordingly, Subcontractor agrees to be bound to ORR to perform the Work under the terms and conditions of the Prime Contract. Subcontractor further agrees that it shall cause any sub-subcontractor or other person performing Work or supplying materials pursuant to the Agreement to acknowledge and be bound by the relevant provisions of this Agreement to the extent of the sub-subcontractors’ work.
3. Price. ORR shall pay to Subcontractor, upon the terms and conditions herein, the amount set forth in the applicable Purchase Order, exclusive of any and all taxes associated with materials, which shall be the liability of Subcontractor (the “Price”).
4. Payment. Subcontractor shall submit its invoice for services upon completion of the Work. ORR shall not be obligated to pay invoices received beyond ninety (90) days from the date of completion of the Work. ORR shall pay the Price to Subcontractor within forty-five (45) days after the last of the following events:
   1. Completion of the Work by Subcontractor;
   2. Acceptance of the Work by Owner;
   3. Final payment by Owner to ORR under the Prime Contract on account of the Work;
   4. The furnishing of evidence satisfactory to ORR (i) that there are no claims, obligations or liens outstanding for labor, services, materials, equipment, taxes or other items performed, furnished or incurred in connection with the Work (pursuant to the lien release forms attached hereto) and (ii) such information, evidence and substantiation as ORR may require with respect to the nature and extent of all obligations incurred by Subcontractor in connection with the Work (if ORR is to reimburse Subcontractor for such costs); and
   5. Receipt of an invoice from Subcontractor to ORR.
5. Time. Time is of the essence in performance of this Agreement. Accordingly, Subcontractor shall: (a) begin the Work immediately upon ORR’s order to do so; (b) perform the Work promptly and in such order as ORR may direct and as will assure the timely completion of the entire project under the Prime Contract (the “Project”); and (c) perform the Work at all times by qualified and competent personnel under qualified supervision while utilizing appropriate materials, equipment, tools and other necessary items, to achieve and maintain a rate of appropriate progress to complete the Project. In the event Subcontractor fails to perform the Work in a timely manner, ORR shall be entitled to collect from Subcontractor, or withhold from payment to Subcontractor, all damages, costs, and overhead expenses associated with or caused by the delay in completion due to Subcontractor’s failure to perform. Additionally, in the event Subcontractor fails to perform the Work within the time frames of the Prime Contract, Subcontractor shall be liable to ORR for liquidated damages in the amount of $500 per day until Subcontractor achieves completion of the Work. Subcontractor and ORR agree that this liquidated damages provision is necessary because it is difficult to determine the amount of damages ORR will sustain in the event Subcontractor fails to achieve completion of the Work as required by this
6. Change Orders. ORR may, without invalidating this Agreement, order extra work or make changes by altering or amending the Work (and the applicable Purchase Order) to be performed. Subcontractor shall submit an itemized list of all costs and expenses associated with the extra or changed work and shall only commence such work upon written authorization by ORR. Upon such change or extra work, the Price shall be adjusted by ORR in its discretion accordingly.
7. Insurance Requirements. Upon the agreement between the parties regarding a Purchase Order, and prior to proceeding with any Work, the Subcontractor agrees to provide evidence of the following insurance coverage in force, which shall pertain to the Work to be performed under the Purchase Order.
   1. Workman’s Compensation Insurance:
               Part A: Statutory
            Part B: Employers Liability: $500,000 Any Accident 
                                                                $500,000 Any one Employee by Disease
                                                                $500,000 Policy Limit by Disease
   2. Comprehensive General Liability Insurance
                Limits of Liability: $1,000,000 Any Occurrence
                                  $2,000,000 General Aggregate
                                                $2,000,000 Per Project Aggregate
                                                $2,000,000 Products/Completed Operations Aggregate
                 All coverage under this General Liability policy will include: Contractual Obligations Coverage; Liability for the Operations of Subcontractors; Coverage for Consequential Damages;
             Coverage for Loss of Use of Premises or Property; Any Fellow Employee Exclusion shall be removed; Personal & Advertising Injury coverage shall not be impaired or excluded.
   3. Comprehensive Automobile Liability
                 Limits of Liability: $1,000,000 Any Accident
                 Coverage must apply to any Owned, Non-Owned, or Hired Vehicles
   4. Umbrella Liability
                 Limits of Liability: $2,000,000 Any Accident/Occurrence/Aggregate
                 Underlying policies and coverage: General Liability, Automobile Liability and Employers Liability.
   5. General Terms and Conditions: Owner and ORR to be named as Additional Insured’s on General Liability Policy, Owner and ORR to be named as Designated Insured’s on Automobile Liability Policy, Subcontractor waives all rights of recovery and all subrogation rights in favor of Owner and ORR. Insurance Policies shall so indicate by endorsement.
   6. Subcontractor’s policies shall be Primary and Non-Contributory with respect to any other insurance available to Owner and ORR.

8. Indemnification. To the fullest extent permitted by law, Subcontractor shall indemnify, defend, protect, and hold harmless ORR and all of its agents, employees, customers, independent contractors and subcontractors from any damage, deficiency, loss, cost, action, claim, judgment or expense, including without limitation, reasonable attorneys’ fees, arising from (a) any act, omission or willful misconduct of Subcontractor, its agents, employees, independent contractors, suppliers, subcontractors and representatives of its subcontractors; and (b) Subcontractor's breach of any provision of this Agreement.
9. Performance of Work. Subcontractor shall perform the Work under the direction and to the satisfaction of the Owner and ORR. Subcontractor shall notify and obtain the approval of ORR before the arrival of its employees or delivery of materials and equipment to the Work Site and before any changes in its employees at the Work Site for any reason. Subcontractor shall in a timely manner check and review the Prime Contract and notify ORR of any discrepancies or conflicts before performing the Work and Subcontractor shall be responsible for any extra costs resulting from its failure to do so.
10. Subcontractor's Compliance. Subcontractor shall, at its own expense, obtain all necessary licenses and permits pertaining to the Work, and comply with all applicable statutes, ordinances, rules, regulations and orders of any governmental or similar authority relating to the Work or the performance thereof, including, without limitation, those relating to safety, wages, discrimination and equal employment opportunities, including but not limited to abiding by the Equal Employment Opportunity Clause in Section 202 of Executive Order 11246, as amended, and the implementing rules and regulation of the Office of Federal Contract Compliance including 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 on the basis of protected veteran status or disability, prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Likewise, when applicable, Subcontractor agrees to comply with the provisions of 29 CFR Part 471, Appendix A to Subpart A.
11. Safety. Subcontractor agrees that it shall be responsible for the prevention of accidents and injuries to persons performing or in the vicinity of the Work. Subcontractor shall establish and implement safety measures, policies and standards required by Owner, ORR and any governmental authority. Subcontractor shall report immediately to ORR any safety related incident no matter how severe or insignificant in nature.
12. Employee Dress Code. The Subcontractor agrees to ensure that its agents, employees, independent contractors and subcontractors are appropriately dressed, and outfitted with any required safety equipment including, but not limited to, hard hats, safety glasses, safety shoes and other protective clothing as the conditions may warrant.
13. Clean Up. Upon completion of any portion of the Work, and upon final completion thereof, Subcontractor shall clean up all refuse and rubbish, created during performance of the Work, and promptly remove all material, tools, structures, etc., that may have been brought on to the premises or utilized by the Subcontractor. In the event of the failure of the Subcontractor to do so, ORR may, after reasonable notice to the Subcontractor, clean up the Work Site at the expense of the Subcontractor.
14. Warranties. Subcontractor warrants and guarantees the Work to the extent required by the Prime Contract. Subcontractor shall, at its expense and by reason of its express warranty herein, repair or remedy any faulty, defective, improper or non-conforming portions of the Work discovered within two (2) year of the date of acceptance of the Project by the Owner, or within such longer period as may be provided for in the Prime Contract. Subcontractor warrants that all materials furnished hereunder under shall meet the requirements of the Prime Contract and that such materials are merchantable and fit for the purposes for which they are to be used under the Prime Contract.
15. Limitation of Liability. ORR shall not be liable or responsible for loss or damage to the equipment, tools, facilities, scaffolds or other personal property owned, rented or used by Subcontractor, its agents, employees, independent contractors or subcontractors, in the performance of the Work. Subcontractor shall maintain such insurance and shall take such protective action, as it deems desirable with respect to such property. Except to the extent of any proceeds received by ORR for the benefit of Subcontractor under a policy of builder’s risk or fire insurance, ORR shall not be liable or responsible for any loss or damage related to the Work. Subcontractor shall be responsible for the correction or restoration of any such loss or damage to the Work, or to the work of ORR or any other subcontractor, resulting from the operations or activities of Subcontractor, or its agents, employees, independent contractors or subcontractors hereunder. Subcontractor shall take all reasonable precautions to protect the Work from loss or damage prior to acceptance by Owner. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL ORR BE LIABLE TO SUBCONTRACTOR OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Default of Subcontractor. Should Subcontractor at any time (a) breach this Agreement, a Purchase Order or its obligations pursuant to the Prime Contract; (b) cause stoppage or delay of or interference with the Project, or any portion thereof; or (c) become insolvent, then, in any such event, each of which shall constitute a default hereunder by Subcontractor, ORR shall, after giving Subcontractor written notice of default and forty-eight (48) hours within which to cure such default, have the right to exercise any one or more of the following remedies:
    1. Require that Subcontractor utilize, at its own expense, overtime labor (including Saturday and Sunday work), in additional shifts as necessary to overcome the consequences of any delay attributable to Subcontractor’s default; and/or
    2. Attempt to remedy the default by whatever means ORR may deem necessary or appropriate, including, without limitation, correcting, furnishing, performing or otherwise completing the Work, or any portion thereof, by itself or through others (utilizing where appropriate any materials and equipment previously purchased for that purpose by Subcontractor) and deducting the cost thereof (plus an allowance for administrative costs equal to twenty percent (20%) of such costs) from any monies due or that become due to Subcontractor hereunder.
17. Early Termination.
    1. Either party may immediately terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after receipt of written notice of such breach from the other party.
    2. If Owner terminates the Prime Contract, or stops the Work for a reason other than the sole default of ORR, ORR may immediately terminate this Agreement or stop the Work for the same reason, and Subcontractor’s rights and remedies, including payment of any unpaid and earned portion of the Price, shall be limited to the corresponding rights and remedies available to ORR under the Prime Contract.
18. Daily Log. Subcontractor shall maintain a daily log of the Work performed. This daily log shall be made available to ORR upon request. Daily logs shall only be required if the applicable Price is based on time & materials expended or utilized which shall contain at least the following information:
    1. Portion of the Work accomplished;
    2. Manpower and supervisory personnel on the Work;
    3. Changes in the Work and the particular reasons therefore; and
    4. Delays in the Work and the particular reasons therefore.
19. Substance Abuse Policy. Subcontractor acknowledges that it has reviewed ORR's Substance Abuse Policy (the “SAP”) and Subcontractor further acknowledges that it (i) has adopted the SAP as its own policy; (ii) will require its employees to comply with its SAP; (iii) will, upon request of ORR, have the employees of Subcontractor tested for the unlawful use of any drug or the use of alcohol in the circumstances determined by the SAP; and (iv) will take the appropriate action with its employees as specified by the SAP if any occasion or event occurs as specified therein during the Term.
20. Non-Solicitation. In consideration of this Agreement with ORR and in recognition of ORR’s need to protect its legitimate business interests, it is agreed that during the Term and for a period of two years after expiration or termination of this Agreement, for any reason, Subcontractor will not solicit or encourage any client, customer, supplier, licensee, licensor, or other business relation of ORR (each, a “Business Contact”) to terminate or diminish its relationship with ORR; or (ii) seek to persuade any such Business Contact to conduct business with any other person or entity, including Subcontractor, if such Business Contact conducts or could conduct such business with ORR.
21. Confidentiality.
    1. The term “Confidential Information” means nonpublic, proprietary, and confidential information (whether in writing, or in oral, graphic, electronic, or any other form) of ORR, its parent company, subsidiaries, and affiliates, and includes but is not limited to ORR’s financial records, customer lists, customer identities, customer requests, prices, and contracts as they exist from time to time, and the methods, inventions, process formulae, compositions, inventions, product specifications, prospective products including, without limitation, possible names, trademarks, trade dress, graphics, product markets or market segments, machines, manuals and blueprints, abstracts, prospectus documents, designs, schematic drawings, programs, software, code, research projects, analyses, and information received from others that ORR is obligated to treat as confidential, including the existence and nature of ORR’s relationships with others.
    2. Subcontractor recognizes and acknowledges that ORR’s Confidential Information is a valuable, special and unique asset of ORR. Subcontractor agrees to safeguard the Confidential Information of ORR. Subcontractor will not, while retained as a subcontractor by ORR or thereafter, disclose any such Confidential Information to any third person, company, association or entity, without the express written authorization of ORR. Subcontractor shall limit disclosure of any Confidential Information only to those employees having a need to know about the same to achieve the purpose of this Agreement and who are under an obligation to maintain the Confidential Information in confidence and to use it solely for the purpose describe herein. The Subcontractor does not have and shall not be deemed to have any right, title, or interest in the Confidential Information, whether under trade secrecy, copyright, patent, or related laws. Upon the termination of this Agreement, Subcontractor shall immediately return to Contactor all Confidential Information then in Subcontractor’s possession, including all photocopies or other duplications or compilations thereof, whether prepared by Subcontractor or others, or certify in writing that said Confidential Information has been destroyed. Subcontractor further recognizes and agrees that an integral part of his/her full and best efforts is his/her duty to honor any confidentiality agreement which ORR’s customers may require.
22. Injunctive Relief. A breach of the Non-Solicitation or Confidentiality provisions of this Agreement may result in substantial harm for which monetary damages alone might not provide adequate compensation. Therefore, the parties agree unconditionally and irrevocably that the non-breaching party shall be entitled to obtain protective orders, injunctive relief and other remedies available at law or in equity and that no bond or other surety shall be required in connection with any related proceeding for such relief.
23. Force Majeure. Neither party shall bear any liability whatsoever to the other for any failure to perform or delay caused by fire, earthquake, explosion, flood, hurricane, tornado, the elements, act of God or the actions of a public enemy, restrictions, limitations or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes or lockouts, inability to obtain necessary materials, goods, services, utilities or labor, pandemic or any other cause, whether similar or dissimilar to the foregoing, which is beyond the reasonable control of the applicable party, and any such failure or delay due to such cause shall not be deemed a breach of or default in the performance of this Agreement.
24. The provisions of the Agreement may be waived only by means of a writing that is signed by both parties. No delay or omission by either party to exercise any remedy or right accruing on default impairs any remedy or right under the Agreement. An express, written waiver by either party of any breach of any provision of the Agreement by the other party may not be deemed to be a waiver of the breach of any other provision or of any subsequent breach of the waived provision.
25. Assignment and Subcontracting. Subcontractor shall neither assign nor subcontract, entirely or in part, any of its rights and obligations contained in this Agreement, without the prior written consent of ORR.
26. Independent Contractor. Subcontractor is an independent contractor and not as an employee of ORR.   The Subcontractor agrees that ORR shall have no liability or responsibility for the withholding, collection or payment of any taxes, employment insurance premiums or contributions on any amounts paid by ORR to the Subcontractor. The Subcontractor also agrees to indemnify ORR from any and all claims in respect to the Subcontractor’s failure to withhold and/or remit any taxes, employment insurance premiums or contributions. The Subcontractor agrees that as an independent contractor, the Subcontractor will not be qualified to participate in or to receive any employee benefits that ORR may extend to its employees. The Subcontractor has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation for, in the name of or on behalf of ORR.
27. Severability - Amendments. If any one or more provisions of Agreement are held invalid, illegal, or unenforceable in any respect for any reason, the remaining provisions remain valid, binding, and effective as if the invalid, illegal, or unenforceable provisions had never been contained in Agreement. The terms and conditions of this Agreement prevail notwithstanding any variance in the Agreement whether prepared and submitted by ORR or Subcontractor. Modifications or amendments to the Agreement are valid only when made in a writing that is signed by both parties. Oral agreements purporting to modify or amend the Agreement are void and of no effect.
28. Choice of Law - Venue. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, without regard to its choice of law principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, the Agreement shall exclusively be brought against either of the parties in the courts of the Commonwealth of Kentucky, County of Jefferson, or, if it has or can acquire jurisdiction, in the United States District Court for the Western District of Kentucky, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
29. Entire Agreement. This Agreement, along with any applicable Purchase Orders, constitutes the entire agreement between the parties with respect to its subject matter. All previous negotiations, understandings, or written or oral agreements have been merged in the Agreement.
30. In addition to the provisions which, by their express terms, survive expiration or termination of the Agreement, the provisions of this Agreement that by their nature must survive the termination or expiration of this Agreement to protect the party in whose favor they run will survive the termination or expiration of this Agreement for any reason, including without limitation, obligations regarding confidentiality and indemnification.
31. Notices. All notices, consents, waivers, or other communications, except invoices, required under the Agreement must be sent by certified mail, return receipt requested, and will be deemed to have been given to ORR when mailed to ORR Protection Systems, Inc., 2100 Nelson Miller Parkway, Louisville, 40223, Attention: VP Sales, with copy to ORR Protection Systems, Inc., 2100 Nelson Miller Parkway, Louisville, KY 40223, Attention: General Counsel, and to Subcontractor at its last known address, or to other such address as designated in writing as the Notice Address for ORR or Subcontractor.