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The General Terms & Conditions Specified by Carolina Gas Transmission Corporation
1. DEFINITION
The terms "Company," "Buyer" and "Purchaser" refer to Carolina Gas Transmission Corporation. The terms "Seller," "Contractor" and "Vendor" refer to the person or entity to which the Purchase Order is addressed. "Order" means this Purchase Order, including any amendments or additions to it.
2. ORDER AND ACCEPTANCE
This Order shall become binding upon Seller signing and transmitting a copy of the signed Order, upon Seller otherwise acknowledging acceptance of the Order, or upon Seller's commencement of performance of the Order, whichever occurs first. Unless specifically incorporated herein by reference within the body of this Order, reference to Seller's quotation, bid, or proposal does not imply and shall not constitute acceptance of any terms, conditions, or instruction contained in such document. Any invoice, acknowledgment or other communication issued by Seller in connection with this Order shall be construed to be for record and accounting purposes only, and no terms and conditions stated in such communication shall be applicable to this Order and they shall not be considered to be Seller's exceptions to the provisions of this Order.
3. COMPLIANCE WITH LAWS
a. The laws of the State of South Carolina shall govern this Order. Any action arising out of the performance of this Order must be filed and resolved exclusively in the Circuit Court of Richland County, Columbia, SC.
b. Seller shall fully comply with all federal, state or local laws, codes, rules, regulations or ordinances applicable to its responsibilities under this Order. Should Seller become aware of any violations of any laws, codes, rules, regulations or ordinances, it shall promptly notify Buyer in writing. If Seller violates any such laws, codes, rules, regulations or ordinances, it shall be responsible for all penalties and costs incurred by itself or by Buyer if resulting therefrom and shall hold Buyer harmless from any liability resulting from failure of such compliance. Seller shall not rely on Buyer or this Order for any information regarding the substance, existence, applicability, requirements or interpretation of any laws, codes, rules, regulations or ordinances.
c. Seller certifies that it has an affirmative action policy ensuring equal employment opportunity without regard to race, color, national origin, sex, age, religion or handicap, and that it maintains no employee facilities segregated on the basis of race, color, religion or national origin. All applicable government regulations concerning equal employment, affirmative action and the utilization of small, small disadvantaged and women-owned businesses are incorporated into these terms and conditions by reference. Seller and its subcontractors, by virtue of any or all of the above-referenced statutory, regulatory, or executive order requirements, or other requirements, may be required to comply with certain record keeping, reporting or affirmative action requirements, and those requirements are incorporated herein by reference. It shall be the obligation of Seller and its subcontractors to make themselves aware of and to understand the legislative, executive, and regulatory requirements that apply to their performance of obligations under this Order. Failure to do so shall not excuse their application to this Order.
d. Seller represents and warrants that all articles and work covered under this Order meet or exceed the safety standards established and promulgated under the Federal Consumer Products Safety Act and the Federal Occupational Safety and Health Law (PL 91-956) and any regulations promulgated thereunder, and all other applicable federal, state and local laws and regulations. Seller shall be solely responsible for its compliance with such laws and regulations and shall indemnify Buyer for any fine or penalty assessed against Buyer due to Seller’s violation of the foregoing.
e. Seller shall comply with the Immigration Reform and Control Act of 1986.
4. SALES AND USE TAXES
In the event Buyer furnishes Seller its “Direct Pay Certificate” (issued to Buyer by the State of South Carolina Department of Revenue) on this Order, Buyer is responsible for the collection and payment of all South Carolina sales/use taxes, including any applicable special projects and local option sales/use taxes, directly to the South Carolina Department of Revenue applicable to this Order. Seller’s prices shall be exclusive of any such South Carolina sales/use taxes. In the event Buyer does not furnish Seller its “Direct Pay Certificate” on this Order Seller is liable for the collection and payment of South Carolina sale/use taxes, including any applicable special projects and local option sales/use taxes, directly to the South Carolina Department of Revenue. Seller shall separately state South Carolina sales/use taxes on all invoices. To the extent this Order is performed in a state other than South Carolina, the analogous laws of that state shall apply.
5. ALL OTHER TAXES AND BUSINESS LICENSES
Except for sales/use taxes as set forth in Section 4, Seller shall be fully responsible and Buyer shall have no liability for the payment of any payroll or employment compensation tax, social security tax, franchise tax, income tax, business license,or other federal, state or local tax, fee, charge or assessment for Seller or any employee of Seller. Seller agrees that it shall pay, as required by law, all such taxes that are applicable to it and its employees and it shall hold Buyer harmless against any claim or liability therefor.
6. OPERATION OF PLANT EQUIPMENT
Seller’s employees shall not operate or attempt to operate any valve, switch, or other control device on any portion of Buyer’s existing plant of utilities unless expressly made a part of the work as defined in the Order or directed by Buyer. Failure to abide by this requirement shall be considered sufficient cause for the immediate removal of the employee or employees involved.
7. INTELLECTUAL PROPERTY
Seller shall assume at its sole expense the defense of and shall indemnify and hold Buyer or its agents, customers, or other vendors harmless from any and all claims, demands, costs, suits, actions, proceedings, fines, penalties and attorneys’ fees (and interest thereon) resulting from the alleged infringement by Seller of any patent, trademark, service mark or copyright in connection with any tasks hereunder, except to the extent the claim resulted from following written directions, specifications, drawings, plans or procedures prepared by Buyer or by third parties selected solely by Buyer. Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Seller. In the event work and/or goods so defended are held to constitute infringement or their use is enjoined, Seller shall, at its own expense, either: (a) procure for Buyer the right to continue to use such work and/or goods; (b) reperform the work or replace the goods with substantially equivalent noninfringing work or goods; or (c) modify the work and/or goods so that they become noninfringing; provided, however, that such work reperformed and goods replaced or modified conform to the requirements of this Order.
8. INDEMNIFICATION
Indemnification – Seller, on behalf of itself, its affiliates, successors, assigns, directors, employees and agents (collectively the “Indemnitor”) hereby agrees to defend, indemnify and hold Buyer and its subcontractors, suppliers, affiliates, successors, assigns, directors, employees and agents (collectively the “Indemnitee”) harmless from and against any and all liabilities, demands, claims, suits, actions, proceedings, fines, penalties, awards, forfeitures, losses, damages and the costs and expenses incident thereto (including, but not limited to, costs of investigation, defense, settlement and attorney's fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, any breach of these terms and conditions, or any negligent or willful act or failure to act on the part of the Indemnitor, or the part of any agent, servant, or subcontractor of the Indemnitor, whether independent or otherwise.
9. LIENS
To the extent permitted by law, Seller agrees that it shall neither cause nor allow to be filed any lien with respect to the materials or services furnished hereunder and hereby waives any right to file or cause such a lien to be filed. If a claim is made against Seller or Buyer or any lien is filed with respect to the work, further payment under the Order shall not become due until all such claims or liens have been satisfied, released and/or discharged of record without cost to Buyer. Upon request by Buyer, Seller shall discharge any lien filed with respect to the work by posting a bond as provided in applicable law, at Seller’s expense. If Seller fails to do so, Buyer may procure the release, satisfaction and/or discharge of any such claim or lien and deduct all costs and expenses of Buyer associated therewith from any money due or to become due to the Seller under this Order or any other order or contract. If any lien is filed or remains unsatisfied after all payments are made, Seller shall refund to Buyer all monies that the latter may be compelled to pay in discharging such lien, including all costs and reasonable attorney’s fees associated therewith.
10. CONFIDENTIAL AND PROPRIETARY INFORMATION
The term “Confidential Information” as used in this Order shall include but not be limited to all marketing, operational, technical, economic or financial knowledge, information or data of any nature whatsoever relating to the Order which has been or may hereafter be provided or disclosed by Buyer in connection with the Order. Confidential Information shall also include all engineering data, plans, maps, drawings, computer programs, specifications and related information which are produced by Seller specifically for Buyer in connection with the Order which the parties hereby agree are considered work made for hire. Confidential Information shall not include the following:
(a) information which at the time of disclosure by Buyer is publicly available, or information which later becomes publicly available through no act or omission of Seller;
(b) information which Seller can demonstrate was in its possession prior to disclosure by Buyer;
(c) information received by Seller from a third party who, to the best of Seller’s knowledge, did not acquire such information on a confidential basis either directly or indirectly from Buyer; and
(d) information which Seller can demonstrate was independently developed by it or for it and which was not obtained, in whole or in part, from Buyer.
Seller agrees to keep confidential all Confidential Information and shall not, without Buyer’s prior written consent, disclose to any third party, person, firm, corporation or entity, such Confidential Information. Seller shall limit the disclosure of the Confidential Information to only those employees of Seller, and only to the extent, as is reasonably necessary for Seller’s performance under the Order. Seller shall not make any other use, in whole or in part, of any such Confidential Information without the prior written consent of Buyer. Seller agrees that, in complying with its confidentiality obligations under this Order, Seller shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information. Seller agrees to be responsible for any breach of this Section by its representatives acting within the scope of their employment. Seller shall not publicize the existence or scope of this Order without Buyer's written consent. Seller acknowledges that nothing in this Order shall give it the right to use any trademark, service mark, name, design, character, or symbol owned, registered or copyrighted by Buyer or its affiliated companies in any advertising, promotion, or publicity, to endorse, expressly or impliedly, Seller’s goods or services, or for any purpose or in any manner other than as specifically provided in this Order. Seller shall require these same agreements on the part of any subcontractor or supplier of Seller's to which the Confidential Information is disclosed. Seller shall return all Confidential Information and copies thereof to Buyer upon written request. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Buyer shall be deemed secret or confidential and Seller shall have no rights against Buyer with respect thereto except such rights as may exist under patent laws.
11. WARRANTY
Seller expressly warrants that for a period of one (1) year from date of acceptance or use of goods and/or work or eighteen (18) months from date of shipment of goods or performance of work, whichever occurs first, (“Warranty Period”), all goods or services furnished under this Order shall conform to all specifications and appropriate standards, shall be fit and sufficient for the purposes intended by Buyer, shall be new, and shall be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, marked, and labeled. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller's obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller's warranty shall run to Buyer, its successors, assigns and customers, and users of products sold by Buyer. Upon request by Buyer, and without affecting any of Buyer’s other rights and remedies, Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Buyer in doing so. In the event of a remedial action to correct defective goods or services as provided herein, the warranty period for that portion of the goods or services affected by such remedial action shall be one (1) year after completion and acceptance of the remedy by Buyer or the duration of the original Warranty Period, whichever is longer.
12. PRICE WARRANTY
Seller warrants that the prices for the articles sold Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such article during the term of this Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this Order shall be complete, and no additional charges of any type shall be added without Buyer's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
13. FORCE MAJEURE
Neither Party shall be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such Party which it could not reasonably anticipate and take action to avoid or mitigate. Such acts shall include, by way of example and not be limited to, acts of God, war (including civil war), acts of any state or government, utility failures, fires, floods, explosions, the elements, epidemics, quarantine restrictions, lockouts, strikes, blackouts, plant shutdowns, material shortages due to petroleum and natural gas shortages, embargoes, delays in transportation or delays of supplies or subcontractors for like causes, or regulations, ordinances, or other regulatory, administrative or government acts or measures which hereinafter prescribe or substantially restrict the lawful performance of duties and obligations arising under this Order. In the event of any such causes, the affected Party will immediately inform the other Party of the circumstances creating the delay or expected to create the delay and provide a statement of impact.
14. INVOICING/PAYMENT
Unless otherwise specified herein, payment of an undisputed amount of an invoice shall be made within thirty (30) days after receipt of invoice. Invoices are only considered received when they arrive at Buyer’s designated Accounts Payable office. Each shipment against each Order shall be invoiced separately. Delay in receiving invoices, or errors and omissions on invoices, shall be considered just cause for withholding payment without losing cash discount privileges. Invoices may not be submitted prior to shipment of material or equipment and/or performance of services. Seller shall include on its invoice a description of items matching the items on the Order; and, when requested by Buyer, Seller shall itemize invoices to show separate charges for material, labor, freight or other billable costs. If goods are delivered by multiple shipments, Seller shall show each shipment separately on invoices.
15. INSPECTION/TESTING
Payment for the goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such goods and to reject any or all of said goods that are in Buyer's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Buyer's other rights, Buyer may charge Seller all expenses of unpacking, examining, repackaging and reshipping such goods. In the event Buyer receives goods whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in this Order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
16. CANCELLATION/TERMINATION
Buyer may at any time terminate this Order in whole or in part for its convenience upon written notice to Seller. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the Order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller's suppliers or subcontractors which Seller could reasonably have avoided.
17. CANCELLATION/TERMINATION FOR CAUSE
Buyer may also terminate this Order or any part hereof for cause in the event of any default by Seller or if Seller fails to comply with any of the terms and conditions of this Order. Seller becomes insolvent or commits any act of bankruptcy other than claiming bankruptcy protection under Chapter 11 of the bankruptcy law. Late deliveries, deliveries of products which are defective or which do not conform to this Order, failure to provide Buyer, upon request, of reasonable assurances of future performance, or Seller's insolvency or committing of any act of bankruptcy shall all be causes allowing Buyer to terminate this Order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages, including attorney's fees, sustained by reason of the default that gave rise to the termination.
18. CHANGES
Buyer shall have the right at any time to make changes in drawings, designs, specifications, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, or otherwise affect any other provision of this agreement, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
19. SHIPMENT
Seller shall include one copy of packing list with shipment. Buyer’s count will be accepted as final and conclusive on all shipments not accompanied by packing slip. Materials delivered in error or over shipment in quantity will be returned at Seller’s expense in accordance with its return shipping instructions. If shipment moves on commercial bill of lading, Seller will attach to its invoice the original bill of lading; and if transportation is charged on the invoice, the original receipted expense bill will be attached. Shipment of goods is expected from nearest distributing point to destination. Any additional freight charge will be deducted from the invoice when shipments are made from a greater distance. If in order to comply with Buyer's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this Order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer.
20. SUBCONTRACTS
Seller shall not subcontract this Order in whole or in part without the prior written consent of Buyer. Seller agrees to bind every subcontractor and every subcontractor shall be bound to terms similar to the terms of this Order. Consent by Buyer to any such subcontracting shall not relieve Seller of its obligations. Seller shall ensure that all subcontractors perform their work and furnish materials with the same skill and care required of Seller under the Order. Seller is responsible for the acts and omissions of its subcontractors, notwithstanding any consent which Buyer may have provided regarding the use of the subcontractor.
21. ASSIGNMENT AND DELEGATION
No right or interest in this Order shall be assigned by Seller without the written permission of Buyer and no delegation of any obligation or of the performance of any obligation by Seller shall be made without the written permission of Buyer. Any attempted assignment or delegation by Seller shall be void and ineffective for all purposes unless made in conformity with this paragraph. No monies due or to become due may be assigned without prior written consent of Buyer.
22. INSURANCE
If Seller or its subcontractor is performing work on premises owned or controlled by Buyer or Buyer’s customer, without limiting any of the other obligations or liabilities of Seller, Seller shall provide and maintain and shall require its subcontractors to provide and maintain, at all times during the course of the work hereunder, the following minimum insurance coverage: General Liability Coverage (Comprehensive Form Public Liability & Property Damages and Contractual Public Liability & Property Damage) - $1,000,000; Automobile Liability Coverage - $1,000,000; Workers’ Compensation and Employers’ Liability (including coverage under U.S. Longshoremen’s and Harbor Workers’ Act where applicable) - $500,000. Independent Contractors - Coverage must be provided on ALL contracts unless the contract specifically excludes the use of subcontractors Seller shall accept, in connection with this Order, the provisions of the Worker's Compensation Act and any re-enactments and supplements thereto; and Seller shall insure its liability thereunder, including an “all-states endorsement”, prior to performing any work under the Order. Seller warrants and shall ensure that all Seller employees performing work under this Order are covered by Seller’s Worker’s Compensation coverages. If Seller is a sole-proprietorship, partnership, limited liability company or similar entity and if the owner(s) will be performing work under this Order, Seller warrants and shall ensure that the owner(s) is/are covered by Seller’s Worker’s Compensation coverages. Before commencing any work, including but not limited to equipment maintenance and warranty repair work, on premises owned or controlled by Buyer, Seller shall have provided Buyer a certificate of insurance acceptable to Buyer. Please submit copies of all applicable insurance certificates on Acord forms showing the certificate holder as:
SCANA Corporation and/or its subsidiaries
c/o Supplier Strategy – MC 43G
Columbia, SC 29218
The certificate must show “SCANA Corporation and/or its subsidiaries” as an additional insured and a Waiver of Subrogation in favor of SCANA Corporation. All such insurance shall be with insurance carriers who have an A.M. Best rating of A- or better and are authorized to do business in the state where the work is to be performed. Coverage provided by Seller must be primary and non-contributory. Neither a failure of Seller to provide the required certificate of insurance, nor Seller’s submission of a certificate of insurance not in conformance with the insurance requirements stated herein will relieve Seller from the obligation to have in force the required insurance coverages. The insurance requirements stated herein may be changed only by specific written agreement by Buyer.
23. INDEPENDENT CONTRACTOR
In the event that Seller's objections hereunder require or contemplate performance of work by Seller's employees, or persons under contract to Seller, to be done on Buyer's property, or property of Buyer's customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of Buyer.
24. HAZARDOUS CHEMICALS
For any substance which is or contains a hazardous chemical as defined in 29 CFR 1910.1200, as amended from time to time, or any successor regulation thereto, Seller shall furnish to Buyer at no extra cost at the time of delivery or prior to delivery, a Material Safety Data sheet stating, in English, the information described in 29 CFR 1910.1200(g)(2).
25. NONRESIDENT CONTRACTOR
Pursuant to South Carolina law, on contracts of $10,000 or more which involve labor in the State of South Carolina, any nonresident contractor must register with the South Carolina Department of Revenue or Secretary of State or have 2% of each payment made to the nonresident contractor withheld, unless the nonresident contractor is considered by the S. C. Department of Revenue to be exempt from this requirement. If Contractor is a nonresident contractor, in lieu of having the 2% withheld Buyer requires Contractor to register with the S. C. Department of Revenue or Secretary of State and furnish Buyer a properly completed form signed by Contractor’s officer or provide to Buyer a letter from the S. C. Department of Revenue certifying that Contractor is exempt. To the extent the work is performed in a state other than South Carolina, the analogous laws of that state shall apply.
26. COMMERCIAL GENERAL/MECHANICAL CONTRACTORS
When work is being performed in South Carolina, Seller shall fully comply with the applicable requirements of Section 40-11-10 et. seq. S.C. Code of Laws, 1976, and regulations promulgated thereunder by the South Carolina Licensing Board for Contractors; and the license numbers shown by Seller on its proposal shall constitute Seller's warranty that its licenses are current and apply to the proper classification required for undertaking the work. To the extent the work is performed in a state other than South Carolina, the analogous laws of that state shall apply.
27. INVALIDITY/WAIVERS/REMEDIES
The invalidity in whole or in part of any condition of this Order shall not affect the validity of the other conditions. The remedies herein reserved shall be cumulative and additional to any other remedies in law or in equity. No waiver of a breach of any provision of this Order shall constitute a waiver of any other breach of such provision.
28. ENTIRE AGREEMENT
This Order, and any documents referred to herein, supersede all prior understandings, transactions and communications, whether oral or written, with respect to the matters referred to herein and form the complete contract between the Buyer and Seller. No modification, alteration, or amendment of this Order shall be binding upon Buyer unless in writing and signed by Buyer's authorized representative.
29. RIGHT OF OFF-SET
As a condition precedent to Buyer’s contracting with Seller for work performed in accordance with this Order, Seller acknowledges and agrees that Buyer has and reserves the right to off-set any amount(s) owed by Buyer to Seller for work performed in accordance with this Order by any amount(s) which Buyer otherwise regards as payable by Seller to Buyer for which Buyer has legal and/or equitable grounds for recovery against Seller and as to which demand therefor has previously been made by Buyer. This right to off-set includes any amounts owed by Buyer to Seller under this Order, any other agreements with Seller, and any agreements with any affiliates of Seller which likewise include this Right Of Off-Set provision.
30. CREDITWORTHINESS
This Order is conditioned upon and subject to Buyer and Seller maintaining the financial creditworthiness required to perform their responsibilities according to the Order. At any time during this Order, either party may request financial information to support their financial due diligence procedures. Buyer and Seller agree to assist each other in this reasonable financial review. If reasonable grounds for insecurity of payment and/or performance arises that affect the creditworthiness of Buyer or Seller, either Buyer or Seller may demand satisfactory adequate assurance of payment and/or performance from the other.
SHIPPING INSTRUCTIONS
1. Please promptly acknowledge this Order, return signed acceptance and advise date you will ship.
2. Tag all materials with Order number.
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