1. Provision of Goods and Services. Pursuant and subject to these General Conditions, Seller shall provide the goods and/or services described on the face of this purchase order (including these General Conditions and any attachments or exhibits thereto, “PO”). Seller may not utilize subcontractors in the performance of services under this PO without the written consent of Buyer. Seller will remain liable for all responsibilities and obligations of Seller under this PO, even if some of such responsibilities and obligations are performed by its subcontractors.
2. Price and Shipping. For goods, a separate invoice shall be rendered for each order for goods or for each shipment made on an order if multiple shipments are made. For services, a separate invoice shall be rendered for each order for services or as otherwise set forth on the face of this PO. An invoice and bill of lading for goods delivered shall be dated and mailed within three business days of the day of actual shipment. An invoice for services performed shall be mailed no later than three business days following completion of the services. Unless Buyer has an EDI account, all invoices shall be mailed to the Buyer at the address shown on the face of this PO; provided, however, that if Buyer provides Seller with an e-mail address for specific invoices, Seller may deliver such invoices to Buyer via the e-mail address provided. Buyer will pay to Seller undisputed amounts within thirty (30) days of receipt of a properly submitted invoice. An itemized delivery ticket, bearing Buyer’s PO number and the Buyer business unit receiving the goods, must be provided with the goods. If delivery is made by carrier, an itemized delivery ticket must be attached to the outside of the package. The price includes the cost of all goods and services, including costs of packing, shipping, and delivery of the goods to the location specified on the face of this PO. Title to, and risk of loss of, the services and/or goods shall pass from Seller to Buyer upon the completion of the services or delivery of the goods to the designated location specified on the face of this PO. Unless otherwise designated on the face of this PO, all goods delivered will be FOB destination. Seller shall deliver goods or provide services in accordance with the delivery schedule set forth on the face of this PO. Any premium transportation costs incurred by Buyer as a result of Seller’s failure to meet the delivery schedule shall be paid by Seller. Any cash discount or net payment period will date from the receipt of the invoice or the receipt of acceptable goods, whichever is later, and not from the date of the invoice. In the case of corrected invoices, it will date from the date of the corrected invoice or receipt of acceptable goods. Seller agrees that the prices stated on the face of the PO are firm unless otherwise noted on the face of the invoice. Invoices submitted more than 12 months after delivery of conforming goods and/or services will not be honored.
3. Integration. Except as otherwise provided herein, this PO embodies the entire agreement and understanding between the parties with respect to the goods and services covered by this PO and supersedes all prior agreements, dealings and understandings relating to the subject matter thereof, whether oral or written. This PO may be accepted by: (i) Seller’s commencing performance of the work; (ii) shipment of the goods; or (iii) Seller’s written acceptance and acknowledgement of this PO, whichever occurs first. Acceptance of this PO is limited to acceptance of the express terms contained on its face and these General Conditions. Any additional or different terms proposed by Seller, including any terms and conditions contained in or on any shipping or delivery ticket or any other attempt by Seller to vary or modify any of the terms contained in this PO, are hereby rejected and void, and this PO shall be deemed accepted by Seller without said additional or different terms. If a prior offer has been made by Seller with respect to the goods or services covered by this PO, Buyer’s acceptance of Seller’s offer is expressly conditioned on assent to the General Conditions contained in this PO. If this PO is issued pursuant to a specific agreement executed by Buyer and Seller or a specific Statement of Work that incorporates a separate agreement executed by Buyer and Seller, then these General Conditions are void
and the terms of such other agreement shall govern the provision of goods or services under this PO, except that any commercial terms contained on the face of this PO shall remain in full force and effect.
4. Quantities. This is not a requirements contract. Buyer reserves the right to use its own resources and to purchase the same or similar goods and services from third parties.
5. Timely Performance. Time is of the essence of this PO. The delivery and performance schedules shall be as set forth on the face of this PO.
6. Specifications. All goods and services furnished under this PO shall conform to all express warranties, descriptions, samples, models, promises and affirmations of fact, if any, relating to the goods or services furnished hereunder and shall be in accordance with the manufacturer’s specifications as well as the applicable plans and specifications supplied by Buyer. No substitution or change in quantity will be permitted under this PO except on specific written authority of Buyer.
7. Inspection and Acceptance of Goods and Services. Buyer shall have the right prior to acceptance to inspect any goods and services and to reject any or all of said goods and services which are in Buyer’s judgment defective or nonconforming. The inspection by Buyer shall not relieve Seller of any responsibility for latent or patent defects in the goods or services. Such inspection shall not affect Seller’s warranties hereunder, and such warranties shall survive any such inspection. Payment for goods and services under this PO shall not constitute acceptance by Buyer.
8. Taxes. Unless otherwise indicated on the face of this PO or included as a separate item on Seller’s invoice, Seller agrees that all applicable federal, state, and local taxes are included in the price and shall be the sole obligation of Seller.
9. Warranties. In addition to Seller’s customary warranties and any other warranties contained herein or implied by law, Seller expressly warrants that all of the goods and/or services will: (i) be performed in accordance with the best practices in the industry prevailing at the time the PO is issued; (ii) conform to all specifications, descriptions, and samples; (iii) be new, unless otherwise specified; (iv) be free from defects in design, material, workmanship, and title; (v) conform to any statements made on the containers, labels, or advertisements for such goods; (vi) be adequately contained, packaged, marked, and labeled; (vii) be merchantable; and (viii) be safe and appropriate for the purpose for which the goods or services are intended and for which goods or services of that kind are normally used. Seller agrees to promptly replace, correct defects in any goods and to re-perform any services not conforming to the foregoing warranties, without expense to Buyer, when notified of such nonconformity by Buyer. In the event of Seller’s failure to promptly correct defects in or replace nonconforming goods or to re-perform nonconforming services, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods or re-perform such services and may charge Seller all costs incurred by Buyer in doing so. The foregoing warranties shall inure to the benefit of Buyer, its assigns, successors, customers, and other users of Seller’s goods and services.
10. Proprietary Rights. Seller warrants that: (a) Seller has acquired the legal rights to all patents, trademarks, service marks, trade names, trade dress, copyrights, trade secrets, rights of publicity, know-how, and other proprietary rights used in connection with or relating to the goods and services, including the development or manufacture of the goods and services; (b) Seller has the right to transfer the title to any goods provided to Buyer hereunder and (c) the goods and/or services provided pursuant to this PO do not infringe and will not infringe on any third-party patents, trademarks, service marks, trade names, trade dress, copyrights, trade secrets, rights of publicity, know-how, and other proprietary rights now existing or hereafter issued.
11. Confidentiality. During the term of this PO and for a period of two (2) years thereafter, Seller shall, and shall cause its employees and subcontractors to, treat and cause to be treated as confidential all information received or obtained from Buyer in connection with the provision of goods or services pursuant to this PO.
12. Compliance with Laws and Buyer Policies and Procedures. Seller warrants that all goods have been or shall be produced, packaged, tagged, labeled, packed, shipped, and invoiced and all services will be performed in compliance with all federal, state and local laws, regulations, and ordinances. If required by law, Seller shall provide Safety Data Sheets with each shipment with a copy to Buyer at the address shown on the face of this PO. Seller warrants that it has and shall maintain all regulatory approvals, authorizations, licenses, permits and other permissions, consents and authorities needed to provide the goods or services pursuant to this PO. Seller shall comply with all of Buyer’s rules, policies and procedures including security procedures. Seller will conduct its business with, or on behalf of, Buyer in a manner that is consistent with the Southern Company Code of Conduct, as amended from time to time, which is expressly incorporated by reference herein. Seller acknowledges that it will obtain a copy on Southern Company’s website at https://www.southerncompany.com/content/dam/southerncompany/pdfs/about/suppliers/suppliers-(landing-page)/scm-supplier-code-of-conduct.pdf and that if it has any questions regarding the Code of Conduct, it will contact Southern Company Gas’s Executive Director of Corporate Ethics and Compliance at 404-584-3408.
Where required by applicable Federal law, Seller shall comply with the following federal regulations: Contractor and subcontractors are notified that they are subject to the provisions of Executive Order 11246, 41 C.F.R. Sections 60-1.4(a), 1.7(a), 4.2(d), 29 C.F.R. Part 471, Appendix A to Subpart A, and 48 C.F.R. Section 52.222-54, incorporated herein by reference.
To the extent Buyer is a government contractor under an Areawide Public Utilities Contract or otherwise engaged as a Federal contractor, the remainder of this Section 12 will apply:
Seller agrees that each of the clauses contained in the Federal Acquisition Regulations referred to below will be incorporated into and form a part of this PO as if set forth herein in full text, and Seller will comply therewith, if the amount of this PO and the circumstances surrounding its performance require Buyer to include such clause in contracts between Buyer and others: (i) 52.203-3 Gratuities (APR 1984); (ii) 52.203-6 Restrictions on Subcontractor Sales to the Government (SEPT 2006); (iii) 52.203-7 Anti-Kickback Procedures (MAY 2014); (iv) 52.219-8 Utilization of Small Business Concerns (OCT 2014); (v) 52.219-9 Small Business Subcontracting Plan (OCT 2014); (vi) 52.222-21 Prohibition of Segregated Facilities (FEB 1999); (vii) 52.222-26 Equal Opportunity (MAR 2007); (viii) 52.222-37 Employment Reports on Veterans (JUL 2014); (ix) 52.222-40 Notification of Employee Rights under the National Labor Relations Act (DEC 2010); (x) 52.222-50 Combating Trafficking in Persons (FEB 2009); (xi) 52.222-54 Employment Eligibility Verification (AUG 2013); and (xii) 52.225-13 Restrictions on Certain Foreign Purchases (JUN 2008). Upon written request, Buyer will provide the full text of any of the above sections incorporated herein by reference. Seller warrants and represents that neither it nor any of the Representatives is/are debarred, suspended or proposed for debarment as a contractor or subcontractor to any department, agency or other division of the United States Government. In the event that Seller or any of the Representatives become debarred, suspended or proposed for debarment during the term of this PO, Seller will immediately notify Buyer verbally and in writing. Seller certifies that no Federal funds have been paid or will be paid to any person including any registered lobbyists for influencing or attempting to influence an officer or employee of any Federal agency in connection with this PO or
subsequent amendments of this PO. If Seller is subject to the requirements set forth in Federal Acquisition Regulation 52.219-9, Seller will, (i) adopt a subcontracting plan ("Plan") that complies with the requirements of 52.219-9, (ii) provide a written copy of that Plan to Buyer, and (iii) if requested, provide timely periodic report(s) to Buyer that reflect the amount paid to subcontractors who are a small business concern, veteran-owned small business concern, service-disabled veteran-owned small business concern, HUBZone small business concern, small disadvantaged business concern, or women-owned small business concern. Seller certifies that it does not use any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, regardless of whether that use is in performance of work under a Federal contract. For purposes of this Section, "covered telecommunications equipment" includes (1) telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities); (2) video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);(3) telecommunications or video surveillance services provided by such entities or using such equipment.; and (4) telecommunications or video surveillance equipment or services provided by an entity that the Secretary of Defense reasonably believes to be owned, controlled or connected to the government of a covered foreign country. Seller certifies that it does not acquire, import, transfer, or install Bulk Power System Regulated Equipment, as such term is defined in the United States Department of Energy, Prohibition Order Securing Critical Defense Facilities effective January 16, 2021, that (i) has been manufactured or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the People's Republic of China, and that (ii) could be used by Buyer as a component of its Defense Critical Electric Infrastructure serving a Critical Defense Facility ("CDF"), as those terms are defined in Section 215A Federal Power Act, at a service voltage level of 69 kV or higher, from the point of electrical interconnection (at a service voltage level of 69 kV or higher) with the CDF up to and including the next "upstream" transmission substation. In addition, to the extent that Contractor is a subcontractor to Buyer pursuant to a Federal contract, the following additional provision will apply, Section 252.225-7060 to the Defense Federal Acquisition Regulation Supplement Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region. PROHIBITION ON CERTAIN PROCUREMENTS FROM THE XINJIANG UYGHUR AUTONOMOUS REGION (JUN 2023). (a) Definitions. As used in this clause— “Forced labor” means any work or service that is exacted from any person under the menace of any penalty for its nonperformance and that the worker does not offer to perform (10 U.S.C. 2496). “XUAR” means the Xinjiang Uyghur Autonomous Region of the People’s Republic of China (10 U.S.C. 2496). (b) Prohibition. In accordance with 10 U.S.C. 4661, none of the funds appropriated or otherwise made available for DoD may be used to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR. The Contractor shall make a good faith effort to determine that forced labor from XUAR will not be used in the performance of this contract (section 855, Pub. L. 117-263). (c) Subcontracts. The Contractor shall insert this clause, including this paragraph (c), without alteration other than to identify the appropriate parties, in subcontracts including subcontracts for commercial products, commercial services, and commercially available off-the-shelf items.
41 C.F.R. 60-300.5(a). This contractor and subcontractor shall abide by the requirements of 41 C.F.R. Section 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and
requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
41 C.F.R. 60-741.5(a). This contractor and subcontractor shall abide by the requirements of 41 C.F.R. Section 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Seller covenants, represents and warrants that (i) neither it, nor its affiliate companies, are prohibited by any applicable law or regulation, from providing goods or services within the United States to Buyer, including, without limitation, in Buyer’s capacity as a Federal contractor, telecommunications provider, and/or Nuclear Regulatory Commission licensee, and (ii) no goods, material, equipment or devices, including but not limited to wire and cable insulation or telecommunication and video surveillance devices, provided or distributed by or through Seller have been banned prohibited or contain any components or substances that have been banned or otherwise prohibited by applicable law or regulation from distribution or use in commerce to Buyer, including, without limitation, in Buyer’s capacity as a Federal contractor, telecommunications provider, and/or Nuclear Regulatory Commission licensee.
Seller will notify Buyer of any change in the above representation at least 30 days before such change goes into effect (or, if such 30 day prior notice period is not possible, as soon thereafter as possible). Buyer may terminate the contract or any order under the contract if any of the foregoing representations change. In addition, Seller will require compliance with this section with its suppliers.
Seller represents and warrants as follows: (1) neither it, nor any of its beneficial owners, is a Specially Designated National ("SDN") as defined by U.S. Department of the Treasury Office of Foreign Asset Control ("OFAC"); (2) neither it, nor any of its beneficial owners, is a citizen of a country subject to an OFAC Country Sanction; (3) it, and all of its beneficial owners, are in material compliance with any and all laws and regulations relating to the prevention of money laundering and the financing of terrorism to which they are expressly subject; (4) neither it nor any of its affiliates are, in whole or in part, directly or indirectly, owned or controlled by, funded by, or based in a “foreign country of risk” as defined by the Department of Energy, and including without limitation, Iran, North Korea, Russia, and China. If Seller fails to satisfy any of the foregoing warranties at any time during the term of the Contract, Seller will promptly notify Buyer in writing at G2FEDCONTRACTS@southernco.com. Seller will not intentionally offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, in connection with this Order to a Foreign Public Official, for that Official or for a third party, in order that the Official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage for work related to this Order. The term "Foreign Public Official" and "Official" will mean any person holding a legislative, administrative or judicial office of a country, whether appointed or elected; any person exercising a public function for a country, including a public agency or a public enterprise; any official or agent of a public international organization; any political party, official of a political party or candidate for political office. The term "country," as used in this paragraph, will include all levels and subdivisions of a government from national to local.
13. Changes. Without invalidating this PO, Buyer may make changes to the goods or services provided under this PO, including but not limited to changes to the following: (a) specifications, drawings, and data; (b) quantities; (c) time and place of delivery; and (d) method of packing and shipment.
14. Indemnification. To the fullest extent permitted by law, Seller waives any right of contribution and shall indemnify and hold harmless Buyer, its affiliates, shareholders, officers, directors, administrators, managers, employees, servants and agents, successors and assigns (each, a “Buyer indemnified party”) from and against all liabilities, claims, damages, costs, losses, and expenses, including, but not limited to, attorneys’ fees and defense costs, arising out of, resulting from or in connection with, in whole or in part, these General Conditions or Seller’s performance under this PO. Except as may be otherwise required by applicable law or governmental authority, and then only to the extent required by such law or authority, each Buyer indemnified party’s right to indemnification under this paragraph shall not be impaired or diminished by any act, omission, conduct, misconduct, negligence, fault or default of Buyer or any employee of Buyer. Although Seller does not have a duty to defend per se, it is expressly agreed that the duty to indemnify defense costs and attorneys’ fees extends to all third-party claims, suits, arbitrations or other proceedings in which the claimants assert one or more actual, alleged or potential liabilities that might come within the scope of Seller’s indemnification hereunder; provided, however, that the foregoing does not relieve Buyer of its obligations under statutory workers’ compensation law and other laws regarding employer obligations to Buyer’s own employees, and for such claims caused by the sole negligence or willful misconduct of Buyer or its employees.
15. Insurance. Where Seller is providing services, Seller shall carry, at its sole cost and expense, the insurance coverages set forth in this Section 15. Seller shall carry primary commercial general liability (CGL) insurance, providing a duty to defend Buyer, including product liability and completed operations, independent contractors, contractual liability, advertising and personal injury coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for the period commencing with the issuance of this PO and concluding with the expiration of the longest applicable statute of repose or if no statute of repose, the longest statute of limitations,. Seller’s CGL policy shall stipulate that such insurance is primary, and not contributing or additional, to any insurance carried by Buyer, whether or not designated as primary, umbrella or excess. For services, Seller shall deliver to Buyer a certificate of insurance before any work begins. Seller shall carry, at its sole cost, the following: workers’ compensation and employer’s liability coverages providing statutory benefits and limits which shall fully comply with all state and federal requirements applying to this insurance in the states where the goods are manufactured and delivered or services provided; Employer’s Liability coverage with limits of not less than $500,000; and Automotive Liability coverage with limits of not less than $1,000,000. All insurance policies required by this PO shall include a waiver of subrogation in favor of Buyer. All policies except Worker’s Compensation must be endorsed to list as an additional insured Southern Company Gas, its subsidiaries, affiliated companies, their officers, directors and employees for all Buyer liabilities arising out of or in connection with, in whole or in part, the goods and services provided hereunder. Whenever Seller shall have Buyer’s property in its care, custody, control or possession for Seller’s fabrication, or otherwise, Seller shall be deemed the insurer thereof and shall be responsible for such property until its return to and acceptance by Buyer. Seller shall immediately notify Buyer in writing if any insurer cancels, rescinds, terminates, fails or refuses to renew, or materially changes the insurance terms and conditions, including the scope of protection provided to Buyer, or if the limits of Seller’s insurance hereunder are materially impaired or exhausted. Seller’s insurance does not in any way negate or diminish its other obligations under this PO.
16. Termination. Buyer reserves the right to terminate this PO: (i) immediately for cause, in the event Seller fails to comply with any of the terms in this PO and has not cured such breach within forty-eight (48) hours of receipt of notice; or (ii) at Buyer's sole convenience upon 7 days written notice. In the
event of termination for convenience, Seller shall immediately upon receipt of notice stop all work under this PO and cause all subcontractors to cease such work. Seller shall be paid for work completed and accepted prior to receipt of notice. 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 resulting from Seller’s breach of this PO.
17. Buyer’s Remedies. In addition to all other remedies available to Buyer under this PO, the UCC or in law or equity, any and all goods or services may be rejected by Buyer and abandoned, returned or held at Seller’s expense and risk, when such goods or services are not produced, sold, shipped, performed or delivered in compliance with the terms of this PO. At its election, Buyer may accept nonconforming goods or services, and Seller shall be liable for any reduced value of such goods and services and the costs to repair or to re-perform the same. Buyer may also charge to Seller all direct and indirect costs incurred by Buyer as a result of any nonconforming goods or services including any consequential damages resulting from such nonconforming goods or services. Each of Buyer’s rights and remedies hereunder, including without limitation the right to consequential damages, shall be cumulative and not exclusive. In the event of any default of any terms and conditions of this PO, Seller agrees to pay all damages, including consequential and incidental, and all costs and attorneys’ fees resulting from such breach.
18. Supplier Diversity. It is Buyer’s policy that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals have the maximum practicable opportunity to participate in the performance of contracts let by Buyer. Seller acknowledges that Buyer operates a “Second Tier Program” that encourages its suppliers to extend subcontracting opportunities to firms that are certified by a third party as having met the definition of being at least 51% owned, controlled and operated by one or more members of the following diverse groups: women, African Americans, Asian-Pacific Americans, Sub-continent Asian Americans, Hispanic Americans, Native Americans, disabled individuals and veterans (“Diverse Suppliers”). Accordingly, Seller represents and warrants that Seller will actively seek qualified Diverse Suppliers to compete for Seller’s business on a fair and even basis and will provide such Diverse Suppliers the maximum practicable opportunity to participate in the subcontracts and orders it may award in connection with this PO. Seller hereby agrees to use commercially reasonable efforts to carry out this policy in the awarding of subcontracts to the fullest extent consistent with the efficient performance of this PO.
19. Liability of Affiliates. Seller acknowledges that Buyer, not any entity affiliated with Buyer, is solely liable for Buyer's acts, omissions, or breaches hereunder.
20. Independent Contractor. In supplying any goods or performing any services hereunder, Seller is an independent contractor with sole responsibility for all persons employed in connection therewith, including without limitation exclusive liability for payment of all federal, state, and local employment and disability insurance, social security and other taxes and contributions.
21. Publicity. Unless otherwise specified in writing by Buyer, Seller will not disclose that Buyer is a customer of Seller and will not use Buyer’s name or the name “Southern Company” or any mark, logo or trade name owned or used by Buyer or its affiliates in any press release, marketing or promotional materials or presentations, in any medium.
22. Governing Law. This PO shall be governed by and construed in accordance with the laws of the State of Georgia. Notwithstanding the foregoing, if services are performed in a state where state law
requires that state’s law to govern, then the laws of that state shall govern for purposes of this PO to the extent required.
23. Waiver of Lien. For projects involving the construction of improvements to Buyer’s property, and provided Buyer has paid Seller all amounts properly due and owing for goods or services provided by Seller or its subcontractors, Seller agrees to keep Buyer’s property free and clear of, and shall promptly release, or cause the release of, all liens, lien claims, recorded notices, claims for nonpayment or lis pendens filed of record by any subcontractor (regardless of tier). Upon request, Seller shall furnish Buyer with lien waivers in accordance with applicable state law.
24. Assignment. Seller shall not assign or transfer any rights, claims, or duties under, or related to, this PO without the prior written consent of Buyer, which consent may be withheld in Buyer’s sole discretion. Buyer may assign or transfer its interest in this PO without limitation. This PO shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
25. Survival. Any and all provisions, promises and warranties contained herein, which by their nature or effect are required or intended to be observed, kept or performed after termination of this PO will survive the termination of this PO and remain binding upon and for the benefit of Buyer and Seller, their successors and permitted assigns.
26. Unenforceability. If any provision of this PO is void or unenforceable, the remainder of this PO shall not be affected thereby and the void or unenforceable provision shall be deemed to be replaced by a valid and enforceable provision which achieves the purpose intended by the parties to the greatest extent possible.