Standard Purchase Order Terms and Conditions

All purchase order agreements (including purchase order revisions/amendments and variance purchase orders) (each a “PO”) issued by Buyer are made expressly subject to these additional terms and conditions (“Terms”).

The PO is between the buyer listed on the front of the PO (“Buyer”) and the seller listed on the front of the PO (“Seller”). “Buyer” is the affiliate of Evergreen Homes LLC identified in the PO; if no such entity is identified, the Buyer is Evergreen Homes LLC. The PO constitutes Buyer’s offer to Seller to supply named products (“Products”) or services (“Services”) to Buyer, and is a binding contract on the terms and conditions set forth therein and in these Terms when it is accepted by Seller or upon commencement of performance under the PO. 

No revisions to the PO shall be valid unless in writing and signed by an authorized representative of Buyer.

  1. ACCEPTANCE

By shipping the Products or performing the Services specified in the PO, Seller accepts the PO and agrees to be bound by the terms and conditions provided therein and in these Terms. When accepted, the PO supersedes all prior agreements, purchase orders, quotations, proposals and other communications regarding the Products or Services covered by the PO, whether written or oral. Any additional or different terms proposed by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, are unacceptable to Buyer, are expressly rejected by Buyer, and will not become part of the PO, but shall not operate as a rejection of the PO if Seller accepts Buyer’s offer by commencement of work or shipment of Products, in which case the PO shall be deemed accepted by Seller without any additional or different terms or variations whatsoever.

  1. TIMELY PERFORMANCE

Seller acknowledges and agrees that time is of the essence in the delivery of the Products or completion of the Services within the time frame mutually agreed upon by Buyer and Seller, is vital to the interest of Buyer, and that failure to complete the Services within such timeframe constitutes a breach of the PO.

  1. CHANGES

Buyer reserves the right at any time prior to commencement of work to make a change as to: (1) specifications; (2) method of delivery; (3) place of delivery, (4) schedule of delivery and/or (5) quantities of delivery.

  1. TERMINATION

Buyer reserves the right to terminate all or any part of the PO at any time and for any reason upon written notice to Seller. Upon receipt of notice of termination, Seller shall promptly terminate all work under the PO. In the event of termination, Buyer shall have no further obligations to Seller except to pay for Products and/or Services provided to Buyer prior to such termination and that were accepted by Buyer. Upon termination, Seller shall provide any transition assistance that may be reasonably requested by Buyer.

  1. DELIVERY

All Products and Services must be delivered in accordance with the specifications, quantities, and delivery instructions specified in the PO, Subcontractor Agreement and/or Statement of Work.

  1. INSPECTION AND REJECTION

All Products are subject to final inspection and acceptance by Buyer at destination notwithstanding any payment. Such inspection will be made within a reasonable time after receipt of Products or Services. Buyer reserves the right to inspect and reject any non-conforming Products or Services. Buyer shall notify Seller if any Products delivered hereunder are rejected, and at Buyer’s election and Seller’s risk and expense, such Products shall be held by Buyer or returned to Seller. No replacement or correction of nonconforming goods shall be made by Seller unless agreed to in writing by Buyer.

  1. INVOICING

Invoices shall be uploaded by Seller to JobTread and attached to the corresponding PO immediately after shipment of Products or rendering of Services is complete. Delays in receiving invoices, errors, or omissions on invoices or lack of supporting documentation required by the terms of the PO will be cause for postponing the start of the payment terms until the correct information is received. Buyer will not be responsible for charges on invoices received more than 120 days after the rendering of Services or shipment of the Products is complete unless indicated otherwise in a written agreement between Buyer and Seller.

  1. PAYMENT

In consideration of the performance of the completion of the obligations by Seller under the PO, Buyer will pay the applicable invoice amount. Payment terms are as set forth on the face of the PO (e.g., net 30 days from receipt of invoice). Only invoices matching the unit prices set forth in the corresponding PO shall be paid. Unit prices set forth in the PO are considered complete and include (i) all materials, equipment, labor, delivery, installation, overhead, and profit, (ii) all sales, consumer, use and other similar taxes and any other applicable taxes, (iii) permits, governmental fees, licenses and inspections for or related to Seller’s Services, and (iv) any other costs or expenses in connection with, or incidental to, the performance of that portion of the Services or supply of the Products to which such unit prices apply. The unit prices may only be amended by change order documents issued and signed by an authorized representative of Buyer. No payment(s) to Seller, whether a progress payment or the final payment, shall be construed as approval or acceptance of Seller’s Products or Services, as the case may be, or any part thereof, or as a waiver of any claims Buyer may have against Seller.

  1. DISPUTED CHARGES

Where any item or items on an invoice are disputed, Buyer may withhold payment for the item or items so disputed until such time as the dispute is resolved.

  1. SELLER’S REPRESENTATIONS AND WARRANTIES

Seller represents and warrants that: (a) Seller owns all rights, title and interest in the Products and Services and has legal authority to sell, license or otherwise transfer the right to use or sell such items to Buyer; (b) the Products and Services covered under the PO are of good and merchantable quality and free from defects in design, material and workmanship, are safe and conform to applicable specifications, drawings, samples, descriptions and associated documentation provided in writing; (C) the Products and Services, and the production and sale thereof, and all warranties, guarantees, representations by Seller made or authorized to be made in connection therewith are in all respects in compliance with all applicable international, federal, state, local laws, rules and regulations.; (d) the Products are fit for the use intended; (e ) no Product and/or Service, or their sale or use will infringe any patents, trademarks, copyrights, trade secrets or similar intellectual property rights of any third party; and (f) Seller has and will comply with all federal, state and locals laws, ordinances, rules and regulations applicable to its performance under the PO.

  1. INDEMNIFICATION

Seller agrees to defend, indemnify and hold harmless Buyer (and the owner of the building site if different from Builder) and all of its respective officers, members, employees, agents, partners, and representatives from and against any and all claims, demands, damages, losses, liabilities, fines, penalties, judgments, settlements, costs, and expenses, including attorneys’ fees incident thereto (collectively, “Claims”), including Claims regarding property damage/loss or bodily injury or death involving any person, including employees of Builder or any affiliate, subcontractor or agent of Builder, arising directly or indirectly out of or in connection with: (i) Seller's performance (or failure to perform) under the PO; (ii) any breach of any warranty or standard of care contained in the PO or any mutually-signed agreement of the parties or SOW issued thereunder; (iii) the willful misconduct of Seller or any of its affiliates, employees, contractors or agents; (iv) a violation of any laws or any negligent act or omission by Seller or its affiliates, contractors, agents or employees during performance of the PO; or (v) any actual or alleged infringement of any United States patent, copyright or trade secret arising out of the Services and/or Products supplied to Buyer by Seller. The provisions of this paragraph “Indemnification” shall survive the termination of the PO for whatever reason.

  1. CONFIDENTIALITY

Seller acknowledges that it is, may be or will be privy to confidential information of Buyer (“Confidential Information”).  Seller agrees it will use the Confidential Information only in the furtherance of its work under the PO and shall not transfer or otherwise disclose the Confidential Information to any third party except with written consent from an authorized representative of Buyer.

  1. INSURANCE

Prior to its performance under the PO, Seller will obtain and maintain adequate insurance coverage, including but not limited to commercial general liability, commercial automobile liability, worker's compensation and employer’s liability, and any other insurance required by law or deemed reasonably necessary by Buyer. Seller shall maintain in effect all such insurance coverage at its sole expense and with insurance companies with a rating of “A-“ or better, duly admitted in the State of Michigan and acceptable to Builder through final completion of the Services. The existence of insurance does not release Seller of its obligations or liabilities under the PO.

  1. GOVERNING LAW; ARBITRATION; JURISDICTION; CLAIMS

The PO shall be governed by and construed in accordance with the laws of the State of Michigan without regard to conflicts-of-law principles. Any disputes arising out of or related to the PO which cannot be resolved amicably between the parties shall be resolved through binding arbitration to be held in Oakland County, Michigan using a single arbitrator in accordance with the rules of the American Arbitration Association (“AAA”). Each party will bear equally the costs and expenses of AAA and of the arbitrator, and each party will bear its own costs and expenses – provided, however, (1) that the failure by one party to pay its share of arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (2) that the arbitrator may award attorneys’ fees and costs to the prevailing party. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. The award of the arbitrator shall be final and binding and will be enforceable in any court of competent jurisdiction. Any arbitration proceeding by Seller under any PO must be commenced no later than one (1) year after (i) the breach or other event giving rise to Seller’s claim occurs, or (ii) Seller becomes aware of the existence (or facts and circumstances giving rise to the existence) of such claim, whichever occurs first.

  1. ASSIGNMENT

No assignment of any rights, including rights to money due or to become due hereunder, or delegation of any duties under the PO shall be binding upon Buyer unless its prior written consent has been obtained.

  1. ORDER OF PRECEDENCE

In the event of a conflict, a mutually-signed agreement (e.g., Subcontractor Agreement) shall take precedence over a Statement of Work, the Statement of Work will take precedence over a purchase order, and the purchase order shall take precedence over these Terms.

  1. FORCE MAJEURE

Both parties shall be relieved from any and all liability under or in connection with the PO to the extent that such liability arises from any failure to perform any of its obligations under or in connection with the PO has been caused or contributed to by a force majeure event or circumstance including acts of God, war, hostilities (whether war be declared or not), civil disturbance, government action, strikes, lock-outs, or labor disputes, computer virus, pandemic, or any other event or circumstance or cause whatsoever beyond the reasonable control of the party.

  1. SEVERABILITY; WAIVER; MODIFICATIONS TO TERMS AND CONDITIONS

If any term of the PO is declared or found to be invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of the PO will remain in full force and effect. The failure of either party at any time to require performance by the other party of any provision of the PO will not affect the right to require performance at any later time, nor will the waiver of either party of a breach of any provision of the PO constitute a waiver of any later breach of the same or other provision of the PO. The rights and/or remedies of either party may only be waived by formal written waiver which is signed by a duly authorized representative of the party waiving its rights and which makes express and unequivocal reference to the waiver being made. Buyer may modify these Terms from time to time by posting revised purchase order terms and conditions to Buyer’s website (or such other website as may be directed through links available on such website) as specified on the face of the PO (“Buyer’s Website”) at https://www.evergreenhomesmi.com/standard-po-terms-and-conditions, prior to the date when any modified terms and conditions become effective. Such revised purchase order terms and conditions shall apply to all PO revisions/amendments and new POs issued on or after the effective date thereof. Seller shall be responsible to review Buyer’s Website periodically.

  1. NO PUBLICITY

Seller will not advertise, publish or disclose to any third party (other than to Seller’s professional advisors on a confidential and need-to-know basis) in any manner the fact that Seller has contracted to furnish Buyer the Products or Services covered by the PO or any terms of the PO (including prices), or use any trademarks or trade names of Buyer in any press release, advertising or promotional materials, without first obtaining Buyer’s written consent.

  1. BATTLE OF THE FORMS NOT APPLICABLE

The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to these Terms or to any invoice or acceptance form of Seller relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Seller to Buyer and these Terms, these Terms shall control.

Effective date: June 30, 2024

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