Lakewood Construction - Construction Management & Development Michigan

Terms & Conditions

These Terms and Conditions apply to all purchase orders (POs) issued by Lakewood Construction Company (Buyer) and supplier (Seller) for all goods and materials Seller supplies or performs. 

  1. Acceptance Seller’s written acceptance of any PO, order or shipment of any goods, or performance of any work or services shall constitute Seller’s acceptance of the PO. Buyer rejects any different, additional, or conflicting terms (Varying Terms) in any Seller document. If Seller conditions its acceptance of a PO on Buyer’s acceptance of any Varying Terms, Buyer expressly rejects such conditions. Buyer’s acceptance of delivery of any goods or services, or payment shall not constitute acceptance of Varying Terms. Seller shall acknowledge acceptance of the PO within 10 days of Buyer’s issuance. If Seller does not acknowledge in writing acceptance of the PO within ten 10 days of Buyer’s issuance, Buyer may cancel the PO without any obligation or liability to Seller. Buyer has no obligation to pay for partial deliveries until Seller delivers an unaltered acknowledgement of this PO. 
  2. Goods Seller shall furnish all goods and materials, incidental design, and services (collectively referred to as “Goods”) necessary to fully complete Seller’s obligations under the PO. Seller shall possess all licenses, permits, and registrations required to perform its duties under the PO. Seller shall furnish all Goods in strict compliance with the PO and Customer Contract and in a manner consistent with the knowledge and skill possessed by other sellers in the same profession under similar conditions, consistent with prudent industry practices. 
  3. Compliance Goods shall be manufactured, delivered, and performed in compliance with any law, ordinance, order, standard, and regulation, including those related to wages, taxes, social security, unemployment compensation, workmen’s compensation, health and safety, environmental, fair employment practices, minority or disadvantaged business usage, wages rates, design, engineering, and if applicable, Buy American (collectively, “Applicable Law”). Upon request, Seller shall furnish certification of such compliance. Seller shall give all notices required by Applicable Law. 
  4. Price The PO price includes all sales and use taxes, import, export, customs duties, charges, levies, and fees imposed for the sale, shipment, delivery, storage and insurance of Goods and other items required for the Goods. All Seller pricing is firm, not subject to escalation. Seller bears the risk of any increase in shipping costs, insurance, or other charges payable on any Goods, including any manufacturer or supplier price increases. 
  5. Payment Buyer will pay Seller for the Goods promptly after Buyer’s receipt of payment from Customer for the Goods, less retainage in the corresponding amount withheld by Customer under the Customer Contract. Payment shall not constitute acceptance of the Goods, nor shall tender of payment be a condition of Seller’s duty to furnish the Goods. Buyer’s obligation to pay Seller for Goods is expressly conditioned on Buyer’s receipt of: (i) the corresponding payment from Customer; (ii) all sworn statements, unconditional lien and bond claim waivers, and other documents required by Buyer and Customer; and (iii) any required warranties, manuals or other deliverables or Submittals. Seller accepts Buyer’s determination of quantities of Goods provided for purposes of payment. Seller relies on the credit and ability of Customer to pay for Goods provided, and not Buyer. Seller accepts the risk that Buyer will not pay Seller if Customer does not pay Buyer for whatever reason. Seller warrants that all Goods for which Seller has received payment shall be free and clear of liens, claims, security interests, or other encumbrances. 
  6. Customer Contract Seller shall be bound to Buyer by the terms of Buyer’s contract with the Customer (Customer Contract) and all documents incorporated in the Customer Contract, including without limitation the specifications, drawings, and conditions, insofar as applicable to the Goods, but excluding payment terms. As to the Goods, Seller assumes toward Buyer all the obligations that Buyer assumes toward its Customer under the Customer Contract. The Customer Contract, excluding price and payment terms, is incorporated into the PO and is available for inspection. In case of any conflict between the Customer Contract or PO, the provision imposing the higher standard, greater duty, or better quality on Seller shall control. 
  7. Warranty Seller warrants that the Goods shall conform to the PO, Customer Contract, specifications, drawings, samples, or other descriptions furnished or specified by Buyer, shall be new, merchantable, and fit for the purpose intended, of good material and workmanship, safe for their intended purposes, free from any defect. Seller guarantees the Goods from any failure or defect for a period of two years from the date of final acceptance of the Goods by the Customer or for such longer period as specified in the PO or Customer Contract. At Buyer’s option and Seller’s expense, Seller shall correct, repair, or replace defective or nonconforming Goods to the satisfaction of Buyer or its Customer within seven days and repair or replace any adjacent work disturbed by Seller’s repair or replacement. Seller shall be liable for all damages in connection with Seller’s breach of warranty, including but not limited to removal, shipping, storage, and replacement costs. The Seller shall not waive its liability for incidental or consequential damages. Seller’s warranties and related obligations survive final payment and acceptance of the Goods and/or termination of the PO. These warranties are in addition to any warranties provided by law and do not replace or diminish manufacturer warranties of longer duration for Goods Seller furnishes. All Seller and manufacturer warranties shall be enforceable by Buyer and Customer and freely transferable and assignable to Buyer and Customer and by Buyer and Customer to others as required under the Customer Contract. 
  8. Shipping At Seller’s expense, Seller shall suitably pack, mark, ship, and deliver Goods to the location and in 2 quantities Buyer specifies. If applicable, Seller shall substantiate charges for prepaid transportation by attaching to the invoice original transportation bills duly receipted by the carrier. Buyer shall not be liable for refusing delivery of Goods due to circumstances beyond Buyer’s control. Seller shall furnish to Buyer all Material Safety Data Sheets (MSDS) on OSHA required forms and shall label all containers and products containing such substances before delivery to Buyer. 
  9. Title & Risk of Loss Seller warrants that it has the right to sell the Goods and the ability to deliver good title to all Goods. Title to the Goods shall not pass to Buyer until the earlier of the date Buyer has paid (all but retainage) for the Goods or the date Buyer receives and accepts the Goods. Seller shall promptly execute and provide Buyer any documents required to transfer title to the Goods to Buyer or to evidence Buyer’s title thereto. Seller shall have and retain the risk of loss of the Goods (regardless of Buyer’s title) until the Goods have been incorporated into the Project or delivered to and accepted by Buyer or Buyer’s designee at the specified delivery point, whichever is later. Seller shall insure at full value all Goods while in transit and in storage before delivery to and acceptance by Buyer. Seller shall prepare and file claims against carriers for loss or damage to Goods in transit. Seller shall pay the cost of discharging any lien, claim, security interest, or other encumbrance related to the Goods. Buyer may take any action it deems necessary to obtain the release and discharge of such encumbrance and the Seller shall compensate Buyer for all costs incurred. 
  10. Inspection All Goods are subject to Buyer’s right of testing and inspection at any time upon reasonable notice at any location and at any stage of production without additional charge, delay in shipment, or change in point of delivery. Buyer’s payment shall not relieve Seller of responsibility for defects. 
  11. Acceptance Buyer reserves the right to: (i) reject nonconforming Goods (NCGs); (ii) revoke acceptance of NCGs after discovering the nonconformance; and (iii) revoke acceptance of NCGs if Buyer accepted same on the reasonable assumption that Seller would timely cure the nonconformity and Seller has not cured the nonconformity. If such a rejection or revocation of acceptance occurs, Buyer shall have the option to do any or all the following: (a) terminate the PO; (b) require Seller to furnish replacement Goods; (c) return the nonconforming Goods to Seller or require Seller to remove them; (d) declare a Seller Default. Seller shall be at risk and responsible for all expenses of storing, unpacking, examining, repacking, and reshipping NCGs or Goods in excess of contract quantities. 
  12. Schedule Time is of the essence to Buyer. Buyer may provide a schedule for delivery of Goods and may revise the time, order, and priority of deliveries, according to demands of a project. Seller shall deliver Goods by the time specified and in the quantity requested by Buyer. Seller shall notify Buyer promptly in writing if Seller has reason to believe that delivery will not occur as requested by Buyer or as scheduled. If Seller does not timely perform, without prejudice to any other remedy, Buyer may, at Seller’s cost: use reasonable means to expedite performance, including requesting Seller work overtime, add personnel, equipment, supplies, and materials, make express shipments; and/or exercise any remedy for a Seller Default. Seller shall remain responsible for all costs or damages Buyer incurs arising from Seller’s untimely performance. Buyer shall not be liable for delaying delivery or acceptance of the Goods if prevented from doing so by events beyond its control, including, but not limited to Owner-caused delays or construction delays. 
  13. Changes Buyer may increase or decrease the order for Goods, revise the specifications or other instructions, suspend performance, or change delivery. No change is valid unless made in writing by Buyer. Verbal instructions as to changes are not permitted or authorized. Seller shall have no claim for additional costs for changes unless Buyer authorizes such changes in a change order signed by Buyer. Seller must assert any claim for adjustment in price or delivery within seven days of the event giving rise to the change. Timely notice is an absolute condition precedent to any Seller claim for change in price, time, or performance. 
  14. Indemnity To the fullest extent permitted by law, Seller shall defend, indemnify, and hold harmless Buyer, the Customer, those that Buyer is required to indemnify under the Customer Contract, and their employees, officers, directors, and agents (Indemnitees) from any allegation, demand, claim, action, cost, expense, damage, including attorney fees and defense costs, (collectively, Claims) alleged to arise out of the Goods, the acts or omissions of Seller, Seller’s agents or suppliers and their agents, or employees (collectively, Seller Agents), Seller’s use of any Equipment, Seller’s violation of Applicable Law, infringement of patents, trademark, or copyright, payment claims by Seller’s Agents, or Seller’s breach of the PO, whether caused in part by the negligence or fault of Indemnitees, except where an Indemnitee is determined to be solely at fault. 
  15. Insurance Seller shall maintain insurance that complies with the Customer Contract in so far as applicable to Seller and in no case less than the following coverages: (i) Worker’s Compensation and Employer’s Liability; (ii) Commercial General Liability (including Products Liability, Products-Completed Operations, Blanket Contractual Liability, Broad Form Property Damage; (iii) Business Auto Liability; (iv) for Goods involving any design services, Professional Liability. Seller for itself and on behalf of its insurers, waives any right of recovery against Buyer, the Customer, and the project Owner for any loss covered by insurance. Seller 3 shall include Buyer, Customer, and the project Owner as additional insureds. All Seller policies of insurance shall be primary and noncontributory over any other policy of insurance. Seller shall provide Certificates of Insurance to Buyer before providing Goods. 
  16. Safety If Seller has any employee at a project site, Seller shall establish a safety program implementing safety measures, policies and standards conforming to Applicable Law and comply with Buyer’s safety program. Seller agrees that the prevention of accidents to workers and property engaged upon or in the vicinity of the Goods is its responsibility. 
  17. Equipment If Seller uses any equipment on a project site (Equipment), Seller expressly assumes the risk of injury or harm. Seller releases and discharges Indemnitees from any liability and Claims that arise from or relate to Seller’s use of Equipment. Seller shall not rely upon any operating instruction of Buyer and Buyer makes no warranty or representation about the characteristics or capacity of any Equipment. Seller assumes full responsibility for any damage to the Equipment including, at Buyer’s election, cost of repair, actual cash value if the Equipment cannot be repaired, loss of use, or diminished value. 
  18. Protection of Goods Seller shall take all reasonable measures to protect the Goods, cooperate with others whose work Seller might affect, and cooperate with Buyer in scheduling deliveries so as not to interfere with other’s work. 
  19. Due Diligence Seller shall investigate and satisfy itself as to the nature, extent, and requirements for the Goods and all conditions that might affect the Goods, including schedule, quality, quantity, and, materials, equipment, customs/import controls, transportation and Applicable Law. Any claim for unforeseen or changed conditions is conditioned on Customer providing Buyer such relief. Seller shall report any errors or inconsistencies in plans and specifications and shall request in writing any clarifications it deems necessary. If any performance required by this PO conflicts with Applicable Law Seller shall promptly notify Buyer. 
  20. Submittals Seller’s shop drawings, cut sheets, samples, and the like (collectively, Submittals) shall conform to any project requirements and the Customer Contract. Seller shall furnish Submittals within 10 days of receipt of the PO and before production and delivery of the Goods. Buyer’s approval of a Submittal shall not be deemed to authorize deviations from or substitutions in requirements for the Goods or relieve Seller from its obligations. Seller shall not make any substitutions in the Goods, procedures or methods specified unless Seller receives Buyer’s written approval. 
  21. Default The following circumstances shall be deemed a Seller Default: (a) untimely performance, (b) failure to pay Seller Agents, (c) defective or nonconforming Goods, (d) damage to the project or other work caused by Seller, (e) violation of any Applicable Law; (f) any other breach of the PO; (g) Seller’s failure to provide reasonable assurance of performance. If a Seller Default occurs, Buyer shall have the right, without prejudice to any other remedy, and upon 48 hours’ written notice to Seller, to: (i) seize any Goods, materials, and supplies ordered in connection with the Goods; (ii) purchase substitute Goods by whatever method Buyer deems expedient; (iii) terminate the PO or any portions thereof; and (iv) withhold or setoff payment to Seller for damages Buyer incurs and/or for re-procurement costs, including reasonable overhead and attorney fees. Seller’s rights and remedies are cumulative and non-exclusive. If Buyer’s termination due to Seller’s Default is later determined to have been wrongful, the termination shall be considered to have been for Buyer’s convenience and Seller’s remedy shall be limited to return of Goods at no restock charge. 
  22. Termination If the Customer terminates any part of the Customer Contract that includes the Goods, Seller shall immediately stop work, follow Buyer’s instructions, and mitigate all costs. Buyer’s liability to Seller shall be limited to the extent of Buyer’s recovery for the Goods from the Customer. For Buyer’s convenience, Buyer may terminate any PO in whole or in part at any time upon notice to Seller. Seller shall then immediately stop work, notify its Seller Agents to stop work, and mitigate all costs. Buyer will pay Seller as Seller’s exclusive remedy any amounts due under the PO for Goods accepted as of the termination date and Seller’s reasonable and necessary direct costs resulting from the termination. Regardless of the reason for termination, Seller shall not be entitled to lost profits or overhead costs. Buyer shall be entitled to immediate possession of any Goods (or parts thereof) that it pays for. As a condition precedent to receiving a termination payment, Seller shall execute and deliver all such papers and take such steps required for the parties to close out the PO and for Buyer to take possession of any Goods. 
  23. Ownership of Documents All drawings, specifications, reports, summaries, calculations, and other documents related to the Goods, whether generated by Seller or Seller Agents, shall immediately upon their creation become Buyer’s property and Buyer shall have all common law and statutory rights, including copyright interest. Buyer may transfer ownership of such interest to others as required by the Customer Contract. 
  24. Confidentiality The Customer Contract may contain or incorporate confidentiality or non-disclosure terms which terms shall be equally binding upon Seller. If Seller suffers a data breach or release, theft, damage or destruction of any confidential information, Seller shall immediately report such cyber/data breach to Buyer.  
  25. Integration The Parties intend the PO to be a final and complete statement of their agreement. The PO may not be modified or cancelled except by Buyer’s written consent. If Seller cancels the PO, Seller shall indemnify Buyer against all losses arising from the cancellation. 
  26. Interest of Others Nothing in this PO shall create any contractual relationship between Buyer and any of Seller’s subcontractors or suppliers, nor create any obligation by Buyer to pay or to see that payment is made to any of them. 
  27. Waiver Any failure of Buyer to enforce any term of the PO shall not be deemed a waiver of the term. Buyer’s waiver of any claim or right shall not be effective unless in writing signed by Buyer No course of conduct shall create a conflict with or waiver of the terms of this PO. 
  28. Assignment Seller shall not assign or delegate any right, interest, or obligation without Buyer’s written consent. Buyer may assign this PO to Customer. 
  29. Severability If any term is deemed invalid or unenforceable, such provision may be severed from the PO and the remainder of the PO shall be enforceable to the fullest extent permitted by law. This PO shall be construed neutrally, regardless of the author. 
  30. Electronic Transactions The parties agree that they may execute and exchange records in electronic format. 
  31. Dispute Resolution This PO shall be deemed made in Ottawa County, MI and shall be governed by Michigan law. Any dispute or Claim arising out of or related to a PO or the Goods, at Buyer’s option, may be resolved by arbitration by one arbitrator under the American Arbitration Association rules, exclusively in Ottawa County, MI. The arbitrator’s award shall be final and binding, and judgment may be entered upon it in accordance with Applicable Law in a court having jurisdiction. If Buyer does not elect arbitration, any action arising from this PO shall be brought exclusively in the proper state or federal court with jurisdiction over Ottawa County, MI. Such courts shall have personal jurisdiction over Seller. The Parties waive any right to a trial by jury.