The conditions of purchase and all statements and insertions on the reverse side hereof, constitute the complete agreement between CPS Energy and Supplier concerning this purchase unless modified in writing by duly authorized representatives of both parties.  By accepting this order, Supplier agrees to CPS Energy's terms and conditions, which shall prevail over any inconsistent provisions in any form, acknowledgement, or invoice submitted by the Supplier. Any additional terms or different terms proposed by Supplier are rejected unless expressly assented to in writing by CPS Energy.

All goods and materials shall be properly packed, marked, loaded and shipped as required by this order and in a manner which prevents damage or deterioration in transit and ensures the safe arrival of goods and materials at the named destination and that permits the lowest transportation rates to apply.  CPS Energy is not liable for extra charges for boxing, crating, packing, cartage, handling or anything else unless stated in this order.  Supplier shall mark the CPS Energy purchase order number of this order, Supplier's name, packing slip number and other identification on all containers, invoices, correspondence, bills of lading and other shipping papers and enclose a packing slip with the order number in each container. Supplier shall mark all containers with necessary lifting, handling and shipping information.

All goods or materials purchased herein are subject to inspection at CPS Energy's destination either before or after payment and CPS Energy reserves the right to reject and refuse acceptance of goods or materials which are not in accordance with the instructions, specifications, drawings or data or Supplier's implied or express warranties.  Any rejection of goods or materials resulting because of nonconformity to the terms and specifications of the contract, whether held by CPS Energy or returned shall entitle CPS Energy to full credit and shall be returned at Supplier's risk and expense including transportation charges both ways. No replacement of rejected goods or materials shall be made unless specified in writing by CPS Energy. Acceptance of all or part of the goods or materials shall not be deemed to be a waiver of CPS Energy's right to either cancel or to return all or any portion of the goods or materials because of failure to conform to the order or by reason of latent or patent defects, or other breach of warranty or to make a claim for damages incurred by CPS Energy.  Such rights shall be in addition to any other remedies provided by law.

Supplier warrants to CPS Energy that all services will be performed in a good and workmanlike manner and in accordance with industry standards, and in addition to any implied warranties, the Supplier warrants that all goods or materials covered by this purchase order will be merchantable, fit for the purpose intended, of the best quality and workmanship, free from defects and will conform to applicable specifications, drawings, samples and descriptions. CPS Energy shall upon inspection, and in addition to its other rights and remedies, have the right to reject any such goods or materials that are defective or otherwise not in conformity with this order or require re-performance of the services at Supplier's expense.  Defects shall not be deemed waived by CPS Energy's failure to notify Supplier upon receipt of goods or materials or completion of services, or by payment of an invoice.  If Supplier fails to correct defects in or replace nonconforming good or materials promptly, CPS Energy, after reasonable notice to Supplier, may make such corrections or replace such goods or materials and services and charge Supplier for the cost incurred by CPS Energy in doing so. Supplier recognizes that CPS Energy operational requirements may require immediate repairs or reworking of defective goods or materials or supply of conforming goods or materials, without notice to the Supplier. In such event, Supplier shall reimburse CPS Energy for the costs, delays or other damages which CPS Energy has incurred as a result of Supplier's failure to provide conforming goods or materials.

Subject to CPS Energy's approval, the invoice for services rendered shall be paid thirty (30) days from the receipt of invoice.  Invoices for goods or materials shall be paid thirty (30) days from the Supplier invoice date following delivery and receipt of goods or materials.  Supplier shall submit all invoices to the CPS Energy Accounts Payable Section, P.O. Box 2921, San Antonio, Texas 78299 2921.  Invoices must reference the CPS Energy Purchase Order (PO) Number, item number and description, sizes, quantities, and unit prices.  Invoices which do not reference a CPS Energy PO Number will be returned unpaid. Payments of invoices shall not constitute acceptance of goods or materials and shall be subject to adjustment for shortages, defects, or other failure of Supplier to meet the requirements of the order.

CPS Energy reserves the right to terminate this order, or any part of it, for CPS Energy's sole convenience.  In the event of such termination, Supplier shall immediately stop work as to the terminated portion of the order, notify all suppliers and sub-suppliers to stop work on contracts for performance hereunder and to protect and preserve property in its possession in which CPS Energy has or may acquire an interest.  In order to entitle the Supplier to any termination payment, Supplier shall, within thirty (30) days after receipt of said notice to terminate, advise CPS Energy in writing whether any termination charges will be submitted in connection with the termination.  Supplier shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work completed in compliance prior to the notice of termination, plus reasonable, actual direct costs for uncompleted work in progress.  Supplier shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by its suppliers or sub-suppliers which Supplier could reasonably have avoided.  In no event shall the aggregate of all termination payments plus all other payments made for goods or items under this order exceed the total sum due under the order.

If Supplier fails to make any delivery in accordance with the delivery schedule, fails to observe or comply with any other instruction, term, condition or warranty, defaults in its obligations applicable to this Purchase Order, fails to make progress so as to endanger timely performance, or a receiver or trustee is appointed or an assignment is made in favor of a creditor, CPS Energy may, in addition to any other right or remedy, terminate all or a portion of this Purchase Order by written notice to Supplier.  In the event of termination for cause, CPS Energy shall not be liable to Supplier for any amount (except for products already received and accepted by CPS Energy as completed and in conformance), and CPS Energy may acquire, produce, or otherwise purchase supplies or services elsewhere on such terms or in such a manner as CPS Energy deems appropriate, and Supplier shall be liable to CPS Energy for any and all damages, expenses or costs incurred by CPS Energy.  If it should be determined that CPS Energy has improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

This order and any payments to be made hereunder may not be assigned or transferred without the prior written approval of CPS Energy.  No delegation of any obligation or of the performance of any obligation shall be made without the written permission of CPS Energy.  Any attempted assignment or delegation shall be void and ineffective for all purposes unless made in conformity with this paragraph.

Supplier warrants and represents that all goods and materials ordered herein are free and clear of all liens, claims, or encumbrances of any kind.

As a municipally-owned utility, CPS Energy is exempt from State Sales Tax and certain Federal Excise Taxes.

Unless otherwise specified, the equipment, goods and materials herein will not be subject to any price increase prior to delivery.

Title to all goods and materials ordered shall remain with the Supplier until delivered to CPS Energy at the destination specified on the face of the order.  All risk of loss or of damages to the goods or materials shall be on Supplier until title to the goods or materials passes to CPS Energy.  If goods or materials are rightfully rejected by CPS Energy, Supplier shall bear all risk of loss or damage until such goods or materials are re-delivered to CPS Energy.

 

The Supplier warrants that the use or sale of the goods or materials delivered hereunder will not infringe any U.S. patent claim covering the goods or material itself.  Supplier agrees upon receipt of notification by CPS Energy to promptly assume full responsibility for the defense of any suit or proceeding which may be brought against CPS Energy for alleged patent infringement resulting from similarity in design, trademark, or appearance or of the use or sale of the goods or materials furnished under this order.  Supplier shall satisfy all demands that may be made at any time for such royalties and fees, and Supplier shall have full responsibility with respect to any claims for such fees, royalties, or related costs incident to the use of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others in performance of the services for CPS Energy, or incorporation of the completed invention, design, process, product, or device provided by Supplier into the work.  Supplier further agrees to indemnify CPS Energy against any and all expenses, losses, royalties, profits, and damages including court costs and attorney's fees resulting from the bringing of such suit or proceedings including any settlement or decree of judgment entered therein.

 

Neither CPS Energy nor Supplier shall be considered to be in default of this agreement if delays in or failure of performance shall be due to any cause beyond the reasonable control of the non-performing party.  The term force majeure shall mean any event which results in the prevention or delay of performance by a party and any act of God including, but not limited to, fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, strikes or other labor disturbances, and judicial restraint or inability to procure permits, licenses, or authorizations from any state, local, federal agency, or person for any of the supplies, materials, accesses, or services required to be provided by either CPS Energy or Supplier under this agreement.  The party subject to the Force Majeure shall use its best efforts to eliminate and mitigate the consequences thereof.  In the event Supplier is delayed in delivery or performance or CPS Energy is restricted in its ability to make use of the goods as originally contemplated by reason of a force majeure event and without fault of the party so affected, then CPS Energy may elect either to have the quantities so affected eliminated without liability or to extend the period of delivery of the quantities so affected by the period that the force majeure event effects persists.  If an excusable delay exceeds a total period of thirty (30) days, CPS Energy may terminate this Purchase Order.

 

If an MSDS is required by law on one or more of the products being supplied, the Supplier must provide to CPS Energy, with the initial shipment of the product, and with the first shipment of the product after any changes in that product, an MSDS in accordance with OSHA Hazard Communication Standard 29 C.F.R. 1910.2000.  The MSDS document must be sent in a weatherproof package if it is exposed to the elements. Failure to include the MSDS with the shipment of the item or items as indicated on the reverse side will cause the shipment to be received with an exception to the Purchase Order requirements and payment of the item or items requiring an MSDS will not be made until this requirement is met.

Supplier is responsible for accidental spills, construction waste and debris, and/or any other waste generated on CPS Energy jobs.  Immediately contact your CPS Energy Field Representative or CPS Energy, if any of these situations arise for more detailed information.

The Supplier must be an authorized distributor for the manufacturer of the goods or materials furnished to CPS Energy under this Purchase Order and guarantees that the manufacturer will warrant the product working through him as the Supplier.

Supplier shall defend, indemnify, and hold harmless CPS Energy from and against any liability, loss, cost, and expenses claimed by a third party (including reasonable attorney's fees and costs of defense) arising from a defect in the good or the services or any act or omission of Supplier to the extent that such liability is for:

1.  bodily injury, sickness, disease or death, and/or
2.  loss or destruction of property,
which arises out of and is attributed to the sole or concurrent negligence or strict liability of Supplier, its sub-suppliers, or their respective employees.  Where liability is attributable to the joint negligence or fault of Supplier and any other person (including CPS Energy), Supplier's duty of indemnification shall be limited to Supplier's allocable share of joint negligence or fault.
THIS INDEMNITY SHALL BE BROADLY CONSTRUED TO APPLY TO ALL LIABILITY ATTRIBUTED TO THE CONCURRENT AND SOLE NEGLIGENCE OF SUPPLIER AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT

In no event shall CPS Energy be liable for anticipated profits or for any incidental, consequential or punitive damages.  CPS Energy's liability on any claim of any kind for any loss or damage arising out of or connected with or resulting from this Order or from the breach therof, shall in no case exceed the price allocable to the goods or materials or services or unit thereof which gives rise to the claim.

CPS Energy, or its designated agent, shall have the right to audit, at any time, the Contract related records and associated documents of the Supplier and Subcontractor.  Such right to audit shall be for the determination of the accuracy and validity of the Supplier’s and Subcontractor’s billings to CPS Energy and for verifying compliance with other terms and conditions of the Contract.

Supplier and Subcontractor shall maintain all records required to be kept by law, rule or regulation, or records required to document performance of the services specified in the Contract Documents.  The records shall be maintained for the period required by law, for a reasonable period in the absence of applicable law, or for two (2) years after completion of all services, whichever is greater.  Supplier shall provide to CPS Energy copies of such records as provided in the Contract Documents or as reasonably requested by CPS Energy after performance of the services.

It is the policy of CPS Energy to ensure that small, disadvantaged, veteran-owned, service-disabled veterans, HUBZone and women-owned businesses have the maximum practicable opportunity to participate as contractors and suppliers.  It is CPS Energy policy to assist these businesses to overcome the barriers that kept them from full and equal participation in the mainstream of the American Business Enterprise System in the past.  Furthermore, CPS Energy strongly encourages large prime Suppliers to also provide maximum practicable opportunity to small, disadvantaged, veteran-owned, service-disabled veterans, HUBZone and women-owned businesses. Contact our Supplier Diversity Office link to Supplier Diversity Contacts PDF for more information.

This Agreement is not intended to and does not create or establish between the parties any relationship as partners, joint venturers, employer and employee, master and servant or principal and agent.  Supplier is an independent Supplier and shall not be deemed to be, an agent of CPS Energy and as such, shall be free from the control of CPS Energy as to the manner in which it shall perform its obligations, or cause same to be performed, under this Order.  Provider shall pay all wages, salaries and other amounts due its employees in connection with this Order and shall be responsible for all reports and obligations respecting them, such as Social Security, Income Tax Withholding, Unemployment Compensation, Workers' Compensation and similar matters.

CPS Energy may at any time by written order make changes in the services, goods or materials ordered including changes in drawings and specifications, or require additional work or materials.  If such changes cause an increase or decrease in work costs or in the time required for Suppliers performance, an equitable adjustment shall be made and this order shall be modified in writing.

THIS CONTRACT IS PERFORMABLE IN SAN ANTONIO, BEXAR COUNTY, TEXAS AND IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS.