BrightView Landscapes, LLC
Purchase Order Terms and Conditions
Revised Date: November 22, 2024
All purchase orders issued are subject to these Terms and Conditions (together the “Purchase Agreement”).
“Seller” means the entity or individual listed on the front of the purchase order as the supplier or vendor of the goods or services (the, “Seller”).
“Buyer” means BrightView Landscapes, LLC, or any of its direct or indirect subsidiaries or affiliates identified on the purchase order.
ACCEPTANCE. By acceptance of a purchase order as evidenced by execution of a purchase order and/or performance thereunder, Seller agrees to comply fully with these Terms and Conditions of sale set forth in the Purchase Agreement (which includes the purchase order and these Terms and Conditions) and any attachments to the purchase order. Acceptance is expressly limited to the Purchase Agreement; none of Seller's terms and conditions set forth on any document other than in the purchase order or these Terms and Conditions shall apply. Acceptance by Buyer of the goods and/or services under this purchase order shall not constitute acceptance of Seller's terms and conditions. No employee, representative, or agent of Buyer has any authority to bind Buyer to any affirmation, representation, or modification concerning the services or goods to be provided hereunder unless specifically represented as such within this purchase order or as a signed, written amendment hereto. Final inspection and acceptance of goods and services shall be at the Buyer receiving point indicated herein, unless Buyer otherwise agrees in writing. Nonconforming goods shall be returned to Seller, freight collect, and Seller shall be debited for the transportation costs to Buyer plus handling expenses. Such rejected goods shall be deemed to be property of Seller. Accepted goods shall be deemed to be property of Buyer.
INVOICING. Invoices must include the purchase order number and shall be E-mailed immediately after shipment of goods or rendering of service is complete to [email protected]. Delays in receiving invoices, errors, or omissions on invoices or lack of supporting documentation 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 service is complete or shipment of the goods unless agreed otherwise in a written instrument between Buyer and Seller.
PRICES/QUANTITIES. Prices on this purchase order shall be firm and fixed unless otherwise stated in this purchase order or agreed to in writing by Buyer. Shipments shall not vary from quantities specified unless agreed to by Buyer. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
PAYMENT. In consideration of the performance of the completion if the obligations by Seller and acceptance by Buyer, Buyer will pay the applicable invoice amount. Unless otherwise agreed upon by the parties, payment terms are set forth in the applicable purchase order. Where any item on an invoice is reasonably disputed, Buyer may withhold payment for the item so disputed until such time as the dispute is resolved.
TIMELY PERFORMANCE. Seller acknowledges and agrees that time is of the essence in the delivery of the goods 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 this Purchase Agreement.
DELIVERIES/REMEDIES/WAIVER. Goods purchased freight on board Seller's plant or shipping point shall not be considered delivered until they reach the Buyer receiving point indicated in the purchase order. All shipments moving in one day to same location via the same carrier shall be consolidated on one bill of lading, and if applicable, tied in bundles and numbered. Unless otherwise specifically instructed by Buyer, shipments via limited carriers and those subject to replacement value ratings shall be declared at the value which will secure the lowest transportation charge. Seller shall not use premium cost transportation unless authorized in writing by Buyer. Losses and/or excess charges resulting from deviation from Buyer's instructions will be charged to Seller's account. Seller shall forward to Buyer the receipt or bill of lading signed by the carrier with Seller's invoice as evidence of shipment. Seller shall receive and retain mailing receipts for uninsured parcel post. If Buyer determines that it is necessary to correct actual or anticipated failures or hazards in its products attributed to a defect or nonconformity in goods provided by Seller under this Order, Seller shall reimburse Buyer for the actual expenses Buyer incurs. Rights and remedies of Buyer hereunder are cumulative and in addition to those which Buyer has under law and equity. Any waiver by Buyer of any particular breach or default hereunder by Seller shall not constitute a continuing waiver or a waiver of any other breach or default.
WARRANTY. Unless a different warranty is agreed upon between the parties, Seller warrants all goods and services delivered or provided hereunder to be free from defect in material and workmanship, fit for the purpose intended for a period of twelve (12) months from delivery to Buyer and to conform strictly to the specifications, drawings, or sample specified or furnished and any supplementary documentation referenced herein. Seller further warrants that all goods and services delivered or provided hereunder comply with requirements of all applicable Federal, State, and Local laws, rules, ordinances, and regulations. This warranty shall survive any inspection, delivery, or acceptance of the goods and services or payment therefor by Buyer.
PATENTS, TRADEMARKS, ETC. Seller represents and warrants that the items to be delivered hereunder and their use by Buyer will not infringe upon or conflict with any patent, copyright, trademark, trade secret or other property right of Seller or any third party or require any payment by Buyer in respect of any such rights to Seller or any third party. Seller agrees to indemnify and hold harmless Buyer in the event of any breach of the foregoing representation and warranty in accordance with the paragraph entitled “Indemnification”.
CHANGES. Buyer may, at any time, change the specification or any instructions with respect to this purchase order. If any such changes cause any increase or decrease in the cost of any item on this purchase order or the time of Seller's performance, Seller or Buyer, as appropriate, shall be entitled to an equitable adjustment in the prices to be paid or the time of performance or both. Seller will give written notice to Buyer of any proposed equitable adjustment within ten (10) days of receiving notice from Buyer of such changes. Seller and Buyer will negotiate in good faith any proposed adjustments and upon agreement, Buyer will incorporate said changes and adjustments by issuing an amended purchase order.
TERMINATION. Buyer shall have the right to terminate this purchase order; provided that Buyer gives Seller written notice of such termination prior to shipment of any item(s) to be terminated on this purchase order.
BANKRUPTCY. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, including any reorganization or arrangement proceeding, or in the event of the appointment, with or without Seller's consent, of an assignee for the benefit of creditors or of a receiver, then Buyer may cancel this purchase order and hold Seller accountable for any costs or damages incurred by Buyer in connection with this purchase order.
ASSIGNMENT. Buyer and Seller each binds itself, any successors, assigns, and legal representatives to the other party hereto in respect all covenants, agreements, and obligations contained in this purchase order. Seller will not have the right to assign or sublet in whole or in part any of the obligations that this purchase order imposes without the written consent of, and on the terms and conditions set forth by Buyer. Any assignment or sublet not consented to by Buyer shall be voidable at Buyer's election. Payment to an assignee or any such claim shall be subject to setoff or recoupment for any present or future claim or claims that Buyer may have against Seller, except to the extent that any such claims may be expressly waived in writing by Buyer.
PUBLICITY, PROMOTION, OR ADVERTISING. Seller shall not issue any news release, advertisement, publication, publicity, or promotional material regarding this purchase order or make use of the Buyer logo or other trademarks without prior written consent of Buyer.
CONFIDENTIAL INFORMATION. During the course of dealings between Buyer and Seller, it may be necessary for Buyer and/or Seller to disclose certain information which the disclosing party considers to be proprietary and/or confidential, including trade secrets, know-how, technical, manufacturing, business, marketing, financial, personnel, customer and other confidential information. In consideration of the mutual promises contained herein, and as a condition to the mutual disclosure of information, Buyer and the Seller agree as follows:
- "Confidential Information" means the terms and conditions of this Agreement, the existence of the discussions between the Parties and all information, in whatever form furnished by one Party (as "Discloser"), orally or in writing, to the other Party (as "Recipient"). Confidential Information includes, but is not limited to, all Services and Deliverables, business, financial, strategic and technical information, technology and computer software (whether pre-existing or developed as part of this Agreement), processes, trade secrets, customer lists, Buyer membership lists including contact information, access codes, research plans, and initiatives, and any information about Buyer’s business or activities. Seller may also have access to information provided to Buyer in confidence by its clients, Seller or other third parties, which shall likewise be treated as Confidential Information.
- Confidential Information shall not include information which (i) shall have otherwise become publicly available other than as a result of disclosure by the "Receiving Party" in breach hereof, (ii) was disclosed to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, which the Receiving Party believes is not prohibited from disclosing such information as a result of an obligation in favor of the Disclosing Party, (iii) is developed by the Receiving Party independently of, or was known by the Receiving Party prior to, any disclosure of such information made by the Disclosing Party, (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards, or (v) is disclosed with the consent of the Disclosing Party (which must be given in writing).
Seller acknowledges that it is aware that Buyer is a publicly traded company and that Buyer is subject to and must comply with applicable securities laws. Seller further acknowledges that the Confidential Information may constitute “material nonpublic information” (as defined under applicable securities laws) and that the Seller, its affiliates and representatives may become aware of such material nonpublic information regarding Buyer. Seller understands that it is required under applicable securities laws to refrain from trading in securities of Buyer based on such material nonpublic information. Seller further agrees, and agrees to cause its affiliates and representatives to, comply with all applicable securities laws. If the Seller is unsure of its responsibilities in this regard, please contact the Buyer’s Office of General Counsel with any questions.
INDEMNIFICATION. To the extent that, in the course of the performance of this purchase order, Seller's agents, employees, or subcontractors enter upon the premises occupied or under the control of Buyer or any of its customers or suppliers, Seller shall take all necessary precautions to prevent the occurrence of any injury (including death) to any person or any damage to property arising out of any acts or omissions of such agents, employees, or subcontractors. Seller agrees to indemnify and hold harmless Buyer from and/or against any and all claims, damages, costs, liability, and expenses, including reasonable attorneys' fees that (i) arise out of any breach of representation, agreement, or warranties made by Seller and/or the delivery, installation, or service on Buyer premises of any item listed on this Order; (ii) are caused in whole or in part by any act or omission of Seller, Seller's subcontractor, or anyone for whose acts Seller may be liable; or (iii) are attributable to bodily injury, sickness, disease, or death; injury to or destruction of property including the loss of use resulting therefrom; interference with the business or operations of any third party; or violation of any governmental law or regulation. Seller will at its own expense and with counsel reasonably satisfactory to Buyer defend, Buyer against any such claim or allegation. Seller shall maintain such Public Liability Property Damage and Employer's Liability and Compensations Insurance as will protect Buyer from any of said risks and from any claims under any applicable Worker's Compensation and Occupational Disease Acts. This paragraph shall survive the termination of this purchase order and shall continue in effect until any hearing, litigation, or claims have been concluded and settled.
INSURANCE. Seller agrees to provide and to maintain in effect at all times during the term of the Purchase Agreement, at Seller's sole expense, at least the minimum insurance coverage required by law to protect the parties from any liability which may arise out of or result from performing the obligations of the Purchase Agreement. Certificates of insurance will be provided to Buyer upon request.
CONTRACT AND GOVERNING LAW. The Purchase Agreement and the acceptance thereof shall constitute a valid, binding, and enforceable contract governed by the laws of the Commonwealth of Pennsylvania.
WAIVER OF JURY TRIAL. The Buyer and Seller irrevocably and unconditionally waive any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Purchase Agreement, including any exhibits, schedules, attachments, or appendices attached to this Agreement, or the transactions contemplated hereby.
COMPLIANCE WITH LAW. Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
NO THIRD-PARTY BENEFICIARIES. This Agreement benefits solely the Buyer and Seller and their respective permitted successors and assigns and nothing in this Agreement, express or implied, is intended to create any third party beneficiary rights or any other rights on any third party or confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Purchase Agreement.
SEVERABILITY. If any clause of this purchase order is held as a matter of law to be unenforceable or unconscionable, the remainder of this purchase order shall be enforceable without such clause.
EXCLUSION OF DAMAGES. With the exception of Seller’s obligations under paragraphs 17, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, EITHER IN CONTRACT OR IN TORT IN ANY ACTION ARISING OUT OF THE PURCHASE AGREEMENT.
NOTICE OF DELAY. Whenever any actual or potential event, including labor disputes, occurs or is discovered that delays or threatens to delay the timely performance of this Order by Seller, Seller shall give notice thereof to Buyer within 48 hours of Seller’s knowledge thereof.
WAIVER. Failure by either party at any time to enforce any provision of the Purchase Agreement against the other shall not be construed as a waiver of such term and shall not affect the validity of the Purchase Agreement or any part or parts hereof or the right of the relevant party to enforce any provision in accordance with its terms. 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’S CODE OF CONDUCT. Seller must comply with Buyer’s Vendor Code of Conduct located at:
https://investor.brightview.com/esg/corporate-governance/governance-documents/default.aspx
NON-SOLICITATION. During the Term of the Purchase Agreement and for a period of 12 months following the termination of the Purchase Agreement, Seller shall not, without the written permission of Buyer or an affected affiliate, directly or indirectly (i) solicit, employ or retain, or have or cause any other person or entity to solicit, employ or retain, any person who is employed by Buyer, or (ii) encourage any such person not to devote his or her full business time to the Buyer or (iii) agree to hire or employ any such person. Recognizing that compensatory monetary damages resulting from a breach of this section would be difficult to prove, Seller agrees that such breach will render it liable to Buyer for liquidated damages in the amount of $10,000 for each such employee. This section shall not apply to: (1) any person independently seeking employment from Seller; (2) general job postings or advertisements; or (3) any referrals from an independent hiring agency.
- ENTIRE AGREEMENT. In the event of a conflict between this Purchase Agreement and any purchase order, the terms of this Purchase Agreement control and govern, unless the purchase order explicitly states that it is intended to modify the conflicting terms of this Purchase Agreement.
