Legal
For procurement of substation and transmission materials and associated engineering services.
Crown Group USA Purchase Order / Contract Terms & Conditions (Rev. __)
“Agreement” means the Purchase Order, this Terms and Conditions document, and all Exhibits, specifications, and drawings incorporated by reference, collectively.
“Buyer” means the utility, EPC contractor, or entity issuing the Purchase Order.
“Seller” or “Supplier” means the entity supplying Materials and/or performing Engineering Services under this Agreement.
“Materials” or “Equipment” means substation and transmission line materials, apparatus, structures, conductors, and components supplied under this Agreement, including power transformers, circuit breakers, disconnect switches, gas-insulated switchgear (GIS), protective relays, control and metering panels, steel structures, insulators, conductors, shield wire/OPGW, and associated hardware.
“Engineering Services” means design, drafting, calculations, studies, drawings, bills of material, and other engineering deliverables associated with the Materials, including substation physical and electrical design, protection and control design, and transmission line design.
“Work” means the Materials and Engineering Services, collectively, together with all related documentation, testing, and services required for a complete and functional delivery.
“Specifications” means the technical specifications, drawings, standards, and codes referenced in or attached to the Purchase Order.
“Delivery Date” means the date(s) specified in the Purchase Order for delivery of Materials or submission of Engineering Services deliverables.
“FAT” means Factory Acceptance Test.
“Site” means the location(s) identified in the Purchase Order where Materials will be installed or Engineering Services will be applied.
2.1 In the event of any conflict or inconsistency among the documents comprising this Agreement, the order of precedence, unless otherwise stated in the Purchase Order, shall be: (a) the Purchase Order face document and any negotiated special conditions; (b) the technical Specifications and drawings; (c) these general Terms and Conditions; (d) Seller’s quotation or proposal, to the extent not inconsistent with the foregoing.
2.2 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior negotiations, representations, or agreements, whether written or oral. Seller’s standard terms, including any terms on invoices, packing slips, or order acknowledgments, are expressly rejected and shall have no force or effect unless separately and expressly agreed to in writing by Buyer.
2.3 No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.
3.1 Seller shall furnish all Materials and/or perform all Engineering Services described in the Purchase Order and Specifications, complete and suitable for their intended purpose, including all incidental items, hardware, and services reasonably inferable as necessary for a complete, functioning deliverable even if not explicitly enumerated.
3.2 Engineering Services shall be performed by, or under the direct supervision of, a Professional Engineer licensed in the jurisdiction where the Work will be installed, where such licensure is required by applicable law. All engineering deliverables requiring a professional stamp or seal shall be signed and sealed prior to submission for Buyer’s use or construction.
3.3 Seller shall furnish qualified, competent personnel and shall not substitute key personnel identified in its proposal without Buyer’s prior written consent, which shall not be unreasonably withheld.
3.4 Any Work found to be defective, incomplete, or non-conforming with the Specifications shall be corrected by Seller at its own expense, including re-engineering, re-fabrication, or re-testing, as applicable.
4.1 All Materials and Engineering Services shall conform to the edition of applicable industry codes and standards in effect as of the Purchase Order date (or as otherwise specified), including as applicable: IEEE, ANSI, NEMA, NESC, ASTM, IEC, NFPA 70E, OSHA, and the National Electrical Safety Code, together with all Buyer engineering standards and specifications referenced in the Purchase Order.
4.2 Where a conflict exists between referenced codes and standards and Buyer’s Specifications, the more stringent requirement shall govern unless Buyer directs otherwise in writing.
4.3 Seller is responsible for identifying and complying with all applicable federal, state, and local regulatory requirements, permits, and utility interconnection requirements relevant to the Work.
5.1 Seller shall maintain a documented Quality Assurance/Quality Control (QA/QC) program consistent with ISO 9001 or an equivalent recognized standard and shall make such program available to Buyer for review upon request.
5.2 Seller shall maintain full traceability of materials, components, and sub-supplier certifications, and shall provide certified mill test reports, material certifications, and calibration records for test equipment upon request.
5.3 Buyer, or its designated representative, shall have the right, upon reasonable notice, to audit Seller’s (and its subcontractors’) quality systems, manufacturing processes, and records relevant to the Work.
5.4 Nonconforming items shall be identified, segregated, and dispositioned in accordance with Seller’s QA/QC procedures, with notice to Buyer of any nonconformance that may affect form, fit, function, schedule, or compliance with Specifications.
6.1 Seller shall submit engineering deliverables (drawings, calculations, bills of material, protection and control schematics, and studies) in accordance with the submittal schedule set forth in the Purchase Order, allowing Buyer a minimum review period as specified therein (or, if not specified, ten (10) business days) before deliverables are considered approved or are required for fabrication or construction.
6.2 Buyer’s review, comment, or approval of any submittal does not relieve Seller of responsibility for errors, omissions, or non-conformance with the Specifications, applicable codes, or good engineering practice. Seller retains sole professional responsibility for the adequacy and accuracy of its designs.
6.3 Submittals shall be provided in the electronic format(s) specified by Buyer (e.g., native CAD files, PDF, and applicable data exchange formats) together with a transmittal log identifying revision status.
6.4 Seller shall incorporate Buyer’s review comments and shall resubmit revised deliverables within the timeframe agreed by the parties, or as reasonably required to maintain the overall project schedule.
6.5 Seller shall maintain a Bid Phase and Execution Phase Question & Answer log, as applicable, documenting all technical clarifications, and such log shall form part of the record documents for the Work.
7.1 Buyer shall have the right, upon reasonable notice, to inspect Materials and witness testing (including routine tests, type tests, and Factory Acceptance Tests) at Seller’s or its subcontractors’ facilities at any stage of manufacture. Seller shall provide Buyer at least fifteen (15) days’ advance written notice of scheduled FAT dates, or such other period specified in the Purchase Order.
7.2 Seller shall provide certified test reports for all required tests, whether or not witnessed by Buyer, prior to shipment. Materials shall not be shipped until Buyer has issued written acceptance of test results or waived the right to review, except where the Purchase Order permits shipment subject to satisfactory test report review.
7.3 Buyer’s inspection, witnessing of tests, or acceptance of test reports shall not constitute final acceptance of the Materials or relieve Seller of its warranty obligations or responsibility for latent defects.
7.4 All costs associated with Buyer-witnessed factory testing, including reasonable travel expenses for up to [__] Buyer representatives, shall be borne by [Seller/Buyer] as specified in the Purchase Order.
8.1 Seller shall pack, crate, and protect all Materials to prevent damage, corrosion, or deterioration during transit, handling, and outdoor storage, consistent with industry practice for substation and transmission equipment.
8.2 Each shipment shall be clearly marked with the Purchase Order number, item/tag numbers, gross and net weight, center of gravity and lifting points (for heavy equipment), and any special handling instructions.
8.3 Seller shall furnish complete shipping documentation, including packing lists, bills of lading, and certificates of origin, and shall notify Buyer promptly upon shipment with tracking information.
8.4 Unless otherwise specified in the Purchase Order, delivery terms shall be interpreted in accordance with the applicable Incoterms® rules edition referenced therein.
9.1 Time is of the essence. Seller shall deliver Materials and complete Engineering Services in accordance with the schedule set forth in the Purchase Order.
9.2 Seller shall promptly notify Buyer in writing of any anticipated delay, its cause, and the corrective action being taken, immediately upon becoming aware of such delay.
9.3 If the Purchase Order specifies liquidated damages for late delivery, such damages shall apply as Buyer’s sole and exclusive remedy for delay (excluding delay caused by Buyer or Force Majeure), and shall not be construed as a penalty, but as a reasonable pre-estimate of damages difficult to ascertain at the time of contracting, subject to any aggregate cap specified in the Purchase Order.
9.4 Buyer reserves the right, in addition to or in lieu of liquidated damages, to expedite delivery at Seller’s expense (e.g., air freight) where delays would materially impact critical-path construction or outage schedules, with costs to be borne by Seller to the extent the delay is attributable to Seller.
10.1 Title to Materials shall pass to Buyer upon the earlier of delivery in accordance with the specified delivery terms or full payment therefore, free and clear of all liens and encumbrances.
10.2 Risk of loss or damage shall transfer in accordance with the delivery terms (e.g., Incoterms) specified in the Purchase Order. Seller shall bear risk of loss until such transfer, regardless of when title passes.
10.3 Seller warrants that it conveys good title to all Materials, free of any lien, security interest, or encumbrance.
11.1 Prices are firm and fixed for the duration of the Purchase Order and are inclusive of all costs of design, materials, fabrication, testing, packaging, and delivery to the point specified, except as otherwise expressly stated.
11.2 Seller shall invoice in accordance with the payment schedule and milestones set forth in the Purchase Order. Invoices shall reference the Purchase Order number, applicable milestone, and shall be accompanied by supporting documentation reasonably requested by Buyer (e.g., progress certificates, lien waivers).
11.3 Unless otherwise specified, Buyer shall pay undisputed invoice amounts within sixty (60) days of receipt of a correct and complete invoice.
11.4 Buyer may withhold payment of any amount reasonably disputed or associated with nonconforming Work, pending resolution, without waiver of any other right or remedy.
11.5 Where retainage is specified in the Purchase Order, Buyer shall release retained amounts upon Seller’s satisfaction of the applicable conditions (e.g., final acceptance, submission of as-built documentation, warranty bond).
12.1 Prices are exclusive of applicable sales, use, value-added, or similar transaction taxes unless otherwise stated, which shall be separately identified on invoices and paid by Buyer if legally applicable, or self-assessed by Buyer where Buyer holds a valid exemption.
12.2 Each party is responsible for taxes based on its own net income.
13.1 Buyer may, by written change order, direct changes to the scope, Specifications, schedule, or quantities of the Work within the general scope of the Agreement.
13.2 If any such change causes an increase or decrease in the cost of, or time required for, performance, an equitable adjustment shall be made to the price and/or schedule, and the Agreement shall be modified in writing accordingly.
13.3 Seller shall not proceed with any change, nor shall it be entitled to compensation for a change, absent a written change order or written direction from Buyer’s authorized representative. Seller shall notify Buyer within ten (10) business days of any Buyer direction it considers to constitute a change, or such claim shall be deemed waived.
14.1 Seller warrants that all Materials shall be new (unless otherwise specified), free from defects in design, material, and workmanship, and shall conform to the Specifications, applicable codes and standards, and Buyer’s Purchase Order.
14.2 Seller warrants that Engineering Services shall be performed in a professional and workmanlike manner, consistent with the standard of care exercised by similarly situated engineering professionals performing similar services, and in compliance with applicable codes, standards, and licensing requirements.
14.3 The warranty period shall be the later of twenty-four (24) months from delivery or twelve (12) months from initial energization/commissioning, unless a different period is specified in the Purchase Order, or such longer period as required by applicable law.
14.4 Seller shall, at its own expense, promptly repair, replace, or re-perform any Materials or Engineering Services found to be defective or non-conforming during the warranty period, including costs of removal, transportation, and reinstallation where the defect is attributable to Seller, and shall extend the warranty period for repaired/replaced items or affected systems by the period such items were out of service due to the defect.
14.5 These warranties are in addition to, and not in lieu of, any implied warranties of merchantability and fitness for a particular purpose, and any other warranties available at law, except to the extent expressly and validly disclaimed in the Purchase Order.
15.1 Seller shall maintain, at its own expense, throughout the term of the Agreement and for such additional period as necessary to cover warranty obligations: (a) Commercial General Liability insurance, with per-occurrence and aggregate limits not less than those specified in the applicable Purchase Order; (b) Workers’ Compensation insurance as required by applicable law and Employer’s Liability insurance; (c) Automobile Liability insurance covering owned, hired, and non-owned vehicles; (d) Professional Liability (Errors & Omissions) insurance covering the Engineering Services, maintained by Seller’s licensed engineering partner firm(s) performing such services; and (e) Umbrella/Excess Liability insurance as reasonably required by Buyer. Crown Group USA will maintain the proper insurance premiums throughout the full scope of work that is required.
15.2 Seller shall name Buyer as an additional insured on its Commercial General Liability and Umbrella policies (excluding Professional Liability and Workers’ Compensation) and shall furnish certificates of insurance evidencing such coverage prior to commencement of Work, with at least thirty (30) days’ prior written notice of cancellation or material change.
16.1 Seller shall indemnify, defend, and hold harmless Buyer, its affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or resulting from: (a) bodily injury, illness, or death, or damage to tangible property, to the extent caused by the negligent acts or omissions or willful misconduct of Seller, its employees, agents, or subcontractors; (b) any breach of Seller’s warranties, obligations, or representations under this Agreement; or (c) any infringement of third-party intellectual property rights by the Materials or Engineering Services, except to the extent arising from Buyer-furnished designs, specifications, or instructions.
16.2 Buyer shall indemnify, defend, and hold harmless Seller from and against claims arising out of the negligent acts or omissions or willful misconduct of Buyer, its employees, or agents, to the extent caused thereby.
16.3 Each party’s indemnification obligations are subject to the indemnified party providing prompt written notice of any claim and reasonable cooperation in the defense thereof.
17.1 Except in connection with a party’s indemnification obligations for third-party claims, breach of confidentiality, or a party’s gross negligence or willful misconduct, neither party shall be liable to the other for any indirect, incidental, consequential, special, or punitive damages, including loss of profits, revenue, or use, arising out of or related to this Agreement, even if advised of the possibility of such damages.
17.2 Except with respect to the exclusions in Section 17.1, and unless otherwise expressly stated in the Purchase Order, Seller’s aggregate liability arising out of or related to this Agreement shall not exceed the total value of the Purchase Order.
17.3 Nothing in this Agreement shall limit or exclude either party’s liability to the extent such limitation or exclusion is prohibited by applicable law.
18.1 Each party retains ownership of its pre-existing intellectual property. Subject to full payment, Seller grants Buyer a perpetual, irrevocable, royalty-free license to use, reproduce, and modify engineering deliverables (drawings, calculations, models, and specifications) prepared specifically for the Work, for purposes of operating, maintaining, repairing, and modifying the Site and associated facilities.
18.2 Seller represents and warrants that the Materials and Engineering Services, and Buyer’s use thereof in accordance with this Agreement, do not and will not infringe any valid patent, copyright, trademark, or trade secret of any third party.
19.1 Each party shall maintain the confidentiality of the other party’s proprietary or confidential information disclosed in connection with this Agreement, using at least the same degree of care it uses to protect its own confidential information of similar nature, and shall not disclose such information to third parties except as necessary to perform its obligations, or as required by law or regulatory authority (with prior notice to the disclosing party where legally permissible).
19.2 This obligation shall not apply to information that is or becomes publicly available through no fault of the receiving party, was already known to the receiving party without an obligation of confidentiality or is independently developed without use of the disclosing party’s confidential information.
20.1 Seller shall comply with all applicable federal, state, and local laws, regulations, and orders, including those pertaining to labor, employment, environmental protection, export control (e.g., EAR/ITAR, as applicable), and workplace safety.
20.2 Seller represents that it, its personnel, and its subcontractors are not, and will not become, listed on any government denied-party, debarment, or sanctions list, and shall comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and shall not offer or provide anything of value to improperly influence any government official or Buyer representative in connection with this Agreement.
20.3 Seller shall obtain and maintain all permits, licenses, and certifications (including professional engineering licensure) required to perform the Work.
21.1 Seller and its subcontractors shall comply with all applicable occupational health and safety laws and regulations (including OSHA and, where applicable, NFPA 70E arc-flash and electrical safety requirements) and with Buyer’s site-specific safety rules while performing Work at or visiting a Site.
21.2 Seller shall promptly report to Buyer any safety incident, near-miss, or environmental release arising from its performance of the Work.
22.1 Neither party shall be liable for any failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, fire, flood, war, terrorism, civil unrest, epidemic/pandemic, governmental action, or widespread material or transportation shortages (a “Force Majeure Event”), provided the affected party gives prompt written notice and uses reasonable efforts to mitigate the impact.
22.2 Labor disputes limited to Seller’s own workforce, and Seller’s failure to timely order long-lead materials, shall not constitute Force Majeure Events excusing Seller’s performance.
22.3 If a Force Majeure Event continues for more than sixty (60) days, either party may terminate the affected portion of the Agreement upon written notice, without further liability except for Work properly performed and accepted prior to such termination.
23.1 Buyer may terminate this Agreement, in whole or in part, for its convenience upon written notice to Seller, in which case Seller shall be compensated for Work properly performed and accepted through the effective date of termination and reasonable, documented, non-cancellable committed costs, but shall not be entitled to anticipated profit on unperformed Work.
23.2 Buyer may terminate this Agreement for cause if Seller: (a) fails to make progress so as to endanger performance, and fails to cure within fifteen (15) days of written notice; (b) becomes insolvent or subject to bankruptcy proceedings; or (c) materially breaches this Agreement and fails to cure within a reasonable cure period following written notice.
23.3 Buyer may suspend the Work, in whole or in part, upon written notice for its convenience; the schedule and price shall be equitably adjusted to reflect any suspension exceeding thirty (30) days.
24.1 Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that Buyer may assign this Agreement to an affiliate or successor in interest without Seller’s consent.
24.2 Seller shall not subcontract any material portion of the Work without Buyer’s prior written consent and shall remain fully responsible for the performance of any subcontractor as if performed by Seller itself.
25.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles.
25.2 The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation between senior representatives. If not resolved within thirty (30) days, either party may pursue any remedy available at law or, if the parties agree in the Purchase Order, submit the dispute to binding arbitration or the courts located in [__].
25.3 Seller shall continue to perform the Work diligently during the pendency of any dispute, unless otherwise directed by Buyer in writing.
26.1 All notices under this Agreement shall be in writing and delivered by hand, certified mail, or recognized overnight courier to the addresses specified in the Purchase Order and shall be deemed given upon receipt.
27.1 Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder shall continue in full force and effect.
27.2 Waiver. No waiver of any breach shall be deemed a waiver of any subsequent breach.
27.3 Independent Contractor. Seller is an independent contractor, and nothing herein shall be construed to create a partnership, joint venture, or employment relationship.
27.4 Survival. Provisions which by their nature should survive termination or expiration (including warranty, indemnification, confidentiality, and limitation of liability) shall survive.
27.5 Counterparts. This Agreement, including the Purchase Order, may be executed in counterparts, including by electronic signature, each of which shall be deemed an original.
