Terms & Conditions of Purchase

Banner Design Companies Purchase Conditions
Dated 01-06-05

1. SCOPE OF WORK. Vendor will perform everything necessary to complete the work in accordance with the rules, regulations, ordinances, construction codes and statues of all applicable municipal, state and federal authorities having jurisdiction; the rules and requirements of Purchaser’s insurance carriers, and in accordance with plans, specifications and general conditions referred to herein and outlined in Banner Design’s purchase order. Vendor agrees to furnish all materials and labor including, without limitation, all permits, licenses, tools, equipment, light, power, transportation, scaffolding, supplies, supervision and such other facilities and things required to perform the work in accordance with the terms hereof, and is responsible for full compliance with the standards set forth in the Federal Register of the Occupational Safety and Health Administration (OSHA) and in Purchaser’s Safety Program, including the use of safety helmets, fall protection systems, and any other required safety equipment. All work shall be completed by the Vendor in a first-class, good, neat, safe and workmanlike manner, and is subject to final approval by a project/administrative representative of Purchaser. Vendor will do all necessary cutting and patching of his own work to facilitate the installation of other work in the building, and will coordinate his work with the work of other subcontractors in such manner as Purchaser shall direct. Time is of the essence in this contract. If Banner Design orders have a completion date; a 10% penalty will be assessed per 72 hour period as the Vendor agrees that other work has to be performed per the schedule and agreed to date. Any additional costs to Purchaser will be back charged from the purchase price plus reasonable profit.

2. MECHANIC’S LIENS. THE VENDOR AGREES THAT IT WILL NOT FILE, OR CAUSE TO BE FILED, ANY MECHANIC’S NOTICE OF INTENTION OR STOP NOTICE OR LIEN WITH REFERENCE TO THE WORK, AND THE FILING OF SUCH MECHANIC’S NOTICE OF INTENTION OR STOP NOTICE OR LIEN SHALL, AT OPTION OF PURCHASER, BE DEEMED A BREACH OF THIS CONRACT. Vendor shall obtain from all persons who shall furnish to it material, labor or services in connection with the work, a waiver of Mechanic’s Liens in form similar to this Mechanic’s Lien Waiver. Prior to any partial or final payment by Purchaser to the Vendor, the Vendor agrees to furnish releases from itself and all persons, firms, associations, corporations or partnerships which shall have furnished materials, labor or services in connection with the work, as well as discharges in recordable form of any mechanic’s notices of intention, stop notices, lien claims or liens which may have been filed in
connection with this contract. If any lien, claim or encumbrance is filed for record against the property on which the work is to be performed by any subcontractor or supplier of Vendor, the Vendor agrees to discharge the same within 5 days after notice thereof by bonding the same as required by law, or otherwise. Vendor will, at its cost and expense, defend any suite against Purchaser or the owner of the project to enforce any lien, notice or order, and will indemnify said parties against liability arising there from. If Vendor fails to discharge any lien, notice or order within the time and as herein above provided, Purchaser may discharge or pay the same. All costs incurred in connection therewith, including attorney’s fees, shall be paid by Vendor to Purchaser on demand or may be deducted by Purchaser from any payments due, or to become due, to Vendor. Vendor agrees that any mechanic’s or other lien available to Vendor or any of its subcontractors or suppliers is subject and subordinate to any construction and/or permanent mortgage covering the building and site.

3. Loss or Damage. Purchaser shall not be liable for any loss or damage to the Vendor’s work, materials, tools or equipment or any part thereof as a result of theft, fire damage, loss, destruction or casualty during the course of work. Vendor bears the risk of loss until accepted by the Purchaser.

4. Clean Up. Vendor shall be fully responsible for removing from the building all debris resulting from his work, and place same in container provided by owner or other as directed by field superintendent. Any expense incurred by the owner to clean up Vendor’s debris shall be back-charged against this account.

5. Design by Vendor. Vendor hereby acknowledges that it has examined all instruments; plans; specification and the project site referred to herein and are fully familiar therewith. If the work to be performed hereunder by Vendor includes design, Vendor agrees to prepare and furnish such plans, working drawings and specification covering the work, and in such numbers, as are requested by Purchaser, which shall be subject to Purchaser approval provided however, such approval shall not be deemed a waiver of, and shall not release Vendor from, any of its warranties, guarantees or obligations hereunder. Vendor warrants and guarantees that all such designs for use in connection with a building or structure or for any other use prepared and furnished by it shall be suitable for and will meet all criteria for such building, structure or use.

In the event the work or services provided under this Agreement include design services, or professional services, the following provisions shall apply:

Vendor agrees to assign, transfer, and convey to Purchaser all of Vendor’s rights, title, and interest, including copyrights, in and to all project-related documents, models, drawings, photographs, computer and other apparatus programs, graphics, digital graphics, animations, audio and all other works of authorship (hereinafter “Intellectual Property Rights”) created by Vendor or its subcontractor(s) for Purchaser under this Agreement. To insure transfer of copyrights by subcontractors, all contracts between contractor and its subcontractors shall be in writing and shall include this page as an attachment that will be signed by the subcontractor. The Parties believe that any Intellectual Property Rights created are works made for hire and belong to Purchaser on that basis under federal copyright law. However, if the Intellectual
Property Rights are not works made for hire, Vendor hereby assigns said Intellectual Property Rights to Purchaser and Vendor agrees to execute all documents requested by Purchaser to further evidence the forgoing assignment and to provide all reasonable assistance to Purchaser at its expense in securing protection for the Intellectual Property Rights.

Wherein the computer or apparatus programs contain, use or require and pre-existing libraries, modules, code, or other programs, hereinafter “Other Software”, for operation, use or maintenance, Vendor herein grants a royalty free perpetual license for the Embedded Software to Purchaser. When Other Software is provided owned by a Third Party, Vendor shall identify the particular Other Software and provide a royalty free perpetual license to the Purchaser. Any exceptions or limitations to the royalty free perpetual license of the Third Party Other Software shall be identified in writing prior to starting of any work or services within the scope of this Agreement.

Among those project-related documents are certain “Instruments of Service”, including the design drawings and all drawings, specifications, and other documents that are included in the Contract Documents. The purchaser, in turn, hereby grants to the Vendor a limited nonexclusive license to reproduce the documents for purposes relating directly to the Vendor’s performance of its work pursuant to this Contract and for Vendor’s archival records.

In addition to unsure transfer of copyrights by subcontractors, Vendor covenants that all contracts between the Vendor and its subcontractors shall be in writing, acceptance of our purchase order is acceptance of all of Purchaser terms & conditions transmitted via hardcopy or electronically.

6. Guaranty. The Vendor guarantees all work, labor, design, performance of materials and equipment, services and materials furnished for a minimum period of one year subsequent to the later of, the date of final payment, or the date of issuance of a Certificate of Occupancy covering the improvement into which the work was incorporated, and agrees to repair, replace or make good any damages, defects or faults resulting from defective work, materials or design furnished by Vendor, or from work, materials, or design at variance with what is specified hereunder.

7. Default: In the event the Vendor should (a) neglect to diligently prosecute the work properly as herein provided, (b) fail to perform or comply with any provisions of this contract, or (c) be adjudged to a bankrupt, or become insolvent, or have any petition under the Bankruptcy Act of the United States filed against it, or make an assignment for the benefit of creditors, or have a receiver of its property appointed, or have its property pass into the hands of a legal representative, Vendor shall be in default. If such neglect, failure or condition shall continue for 24 hours after written notice thereof to Vendor, Purchaser shall have the right to terminate the employment of Vendor hereunder and cancel this agreement and enter upon the premises and take possession, for purpose of completing the work, of all Vendor’s materials, tools and equipment; and Vendor hereby assigns, transfers and sets over unto Purchaser of all such materials, tools and equipment. Purchaser may employ any other person or persons to complete the work and provide materials and equipment therefore. In case of such
cancellation or discontinuance of such employment, Vendor shall not be entitled to receive any further payment under this agreement, and if the expense incurred by Purchaser in connection with or as a result of such cancellation and discontinuance of employment, shall exceed the unpaid balance to be paid to Vendor under this agreement, Vendor shall be liable for, and shall pay the difference to Purchaser, together with interest thereon from the date of cancellation at the maximum legal rate.

8. Indemnity: The subcontractor hereby agrees to save harmless and indemnify Purchaser and any owner of the project and each of their shareholders, directors, partners, employees, agents, subsidiaries, and divisions and each of their heirs, successors, and assigns (collectively, the “Indemnitees”) from any and all claims, suits, demands, damages, charges, liabilities, losses, costs and expenses including attorneys’ fees arising, from or out of (a) the work incident to or resulting from any and all operations performed by Vendor under or pursuant to any of the provisions of this Order whether or not any acts, errors, omissions, or negligence of any of the Indemnitees contributed thereto in whole or in part, (b) any injury to, or death of, any person or persons, or damage to or destruction of property, occurring wholly or in part in conjunction with or resulting from the work or by reason of any act, admission or negligence of the Vendor, its agents, employees or subcontractors, whether or not any acts, errors, omissions, or negligence of any of the Indemnitees contributed thereto in whole or in part (c) any breach or default hereunder by Vendor whether or not any acts, errors, omissions, or negligence of any of the Indemnitees contributed thereto in whole or in part, (d) any claim that any labor, materials or work of Vendor infringes a patent, whether or not any acts, errors, omissions, or negligence of any of the Indemnitees contributed thereto, or (e) any injury to or death of any person or persons, or damage to or destruction of property, occurring wholly or in part in connection with the operation of any motor vehicle on Purchaser’s property by Seller of Seller’s agents, whether or not any act, error, omission, or negligence of any of the Indemnitees contributed thereto.

9. Insurance: Vendor shall, at its sole cost and expense, but for mutual benefit of itself, Purchaser and any owner of the project, maintain (i) commercial general liability insurance with a limit of $2,000,000 for each occurrence, coverage to include, but not be limited to, completed operations, contractual liability and product liability; (ii) contractors pollution liability, including coverage for mold with a limit of $2,000,000 for each occurrence; (iii) automobile liability insurance covering all owned, hired or non-owned vehicles used by Vendor in connection with the work, and any loading or unloading of such vehicles with a limit of $1,000,000 for each accident, and (iv) workers compensation insurance as required by statute, and employers liability insurance with a limit of not less that $500,000 for all bodily injury arising from each accident or occupational disease. Vendor shall disclose the existence of any deductible on such insurance. It is agreed that Vendor shall be solely responsible for the cost of any deductible.
In the event the work or services provided under this Agreement include design services, or professional services, in addition to other insurance required by statute or under this Agreement, the Vendor shall, at no additional cost to the Purchaser, maintain and provide evidence of professional liability insurance, issued by an insurance carrier approved by the Purchaser and licensed or approved to provide such coverage in the State of New Jersey and where the project is located, for all negligent acts, failure to meet professional standards,
errors, or omissions, by Vendor, its firm, agents, employees, and consultants, arising out of or in connection with this Agreement. The insurance policy shall provide a coverage amount not less than Two Million dollars ($2,000,000) per occurrence. Upon execution of this Agreement, and at every date for renewal of that policy, the Vendor shall cause a Certificate of Insurance to be issued by an acceptable insurer. This policy shall remain in effect and evidenced to Purchaser at least through any warranty period covering the work performed with respect to the project which is the subject matter of this Agreement, but in no case for less than five (5) years after the date of the last payment by Purchaser to Vendor.
All policies shall be placed with insurance companies licensed in and authorized to do business in the State where the work is to be performed, with a financial rating from A.M. Best not less that A-, and otherwise satisfactory to Purchaser. All general liability and pollution liability policies shall name Purchaser and any owner of the project, as an additional insured, such coverage to be provided on an endorsement which provides Purchaser with completed operations coverage, as well as coverage for on-going operations, with coverage to be specifically designated as primary to any coverage obtained by Purchaser.
Vendor shall deliver certificates evidencing such insurance, with a copy of the Additional Insured endorsement naming purchaser attached thereto, and evidence of payment therefore, to Purchaser prior to commencing work. Certificates shall provide for at least thirty (30) days written notice to Purchaser prior to any cancellation or change, and shall reference the foregoing indemnity agreement. The following phrase must be included on the certificate of insurance: BANNER DESIGN COMPANIES, INC. AND ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, PARTNERSHIPS, SUCCESSORS AND ASSIGNS (HEREIN COLLECTIVELY “BANNER”) ARE INCLUDED AS ADDITIONAL INSUREDS. THIS INSURANCE IS PRIMARY AND NON-CONTRIBUTING WITH ANY INSURANCE CARRIED BY BANNER. No requisition shall be honored for payment unless a certificate of insurance covering all jobs is filed with this office prior to the commencement of the work. A copy of the insurance certificate must be returned with the attached purchase order or work order.

10. Assignment-Subletting: This contract shall be construed in accordance with the laws of the State of. This contract may not be assigned, sublet, pledged or otherwise transferred or encumbered by Vendor without the prior written consent of the Purchaser, and any attempt to do so without such consent shall be void.

11. Modifications. This Purchase Order together with all plans, specifications, proposals and other instruments made a part hereof shall be binding when accepted in writing by the Vendor and shall constitute the entire agreement between the parties. No waiver, change or modification of any terms or conditions of this contract shall be binding upon Purchaser unless said waiver, change or modification shall be in writing and signed by Purchaser.

12. Independent Contractor. Vendor agrees that it is an independent contractor and shall be fully responsible to Purchaser for the acts and omissions of all its employees and an suppliers, subcontractors or other persons indirectly employed by it, and be solely responsible for any and all damages caused by it, or others employed by it.

13. Deliveries. Where this Purchase Order covers materials or made to order fixtures, it is agreed that the materials will be delivered f.o.b. to the job site or fabricating plant (unless otherwise stated on the Purchase Order), in such quantity and at such times as may be authorized by Purchaser. It is further understood and agreed that in all cases, quantities of materials mentioned herein are exact unless field needs require approximately only, and the Vendor agrees that deliveries will be based upon actual needs and requirements of the work. Vendor Bears the risk of loss responsibilities and insures quality delivery.

14. Severability. In the event that any provision hereof shall be held invalid by any court of competent jurisdiction, the remainder of the contract shall not be affected hereby.

15. Price and Payments.
(a) The total price set forth on the first page hereof includes all sales, social security, unemployment and other taxes required in connection with or affecting the work. Vendor acknowledges that it is aware of the possibility of increases in prices of labor and materials necessary to perform this contract and/or the difficulty the same, and agrees that no claim shall be made for any increase in the contract price by the reason thereof. ‘No payment, compensation or adjustment of any kind other than an extension of time shall be made to the Vendor for damages because of hindrances or delays from any cause in the progress of the work, whether such hindrance or delays from any cause in the progress of the work, whether such hindrance or delay be avoidable or unavoidable and the Vendor agrees that it will make no claim for compensation, damages, or litigation of the liquidated damages for any such delays and will accept in full satisfaction for such delays said extension of time.’
(b) Partial payment will be made within 45 days after good and/or service delivery. Purchaser shall hold 10% retainage prior to advances. Vendor must present its invoice for work completed and materials installed no later than 3 days after the close of each Fiscal Month, which invoice must contain the Purchase Order number, project name and number set forth on the first page of this contract. Purchaser shall determine what portions of the work have been completed for the purpose of each partial payment.
(c) Final payment of the balance due Vendor, including any retainage, for the work done hereunder shall become due and payable to him 30 days after the work hereunder has been fully and satisfactorily completed and an invoice therefore submitted in accordance with this contract.
(d) As a condition precedent to any payment, partial or final, Vendor must furnish to Purchaser, and to the owner of the project, satisfactory releases, waivers of lien, affidavits, certifications that the release include all labor and material for which a lien could be filed, and any additional evidence Purchaser may require to prove that all labor performed and materials furnished in connection with the work under this contract have been fully paid for.
(e) No payment shall be construed as acceptance of defective work, materials or design. Payment to Vendor of any amount, or balance due it, under this contract, or the use by any person of the Vendor’s work, shall not prevent Purchaser or any other party from exercising any rights or remedies available to them under this contract, or by operation of law by reason
of defects in design, work or materials of Vendor, or any breach by it of any of the terms, covenants and conditions of this contract.
(f) Vendor agrees that it will act as a trustee for all monies received, and will use all such monies for the payment of taxes, labor, materials and bills of every kind incurred by it under this contract.
16. Vendor agrees to employ union labor when necessary so as to avoid jurisdictional or other labor disputes on the job site. If Vendor’s employees are represented by a labor organization with which Purchaser has a collective bargaining agreement, Vendor agrees to comply with said collective bargaining agreement. However, Purchaser shall not be bound by any union rules, labor agreements or related requirements of the Vendor. The work to be performed by Vendor shall be governed by the agreement between Purchaser and Vendor and shall not be expanded because of any arrangement (contractual or otherwise) Vendor has with a labor union.

17. Compliance with Laws. This contract is subject to the requirements of the Affirmative Action Program of the N.J.E.D.A. dated. The Vendor agrees to make a good faith effort to meet the applicable employment goals and to comply with the applicable provisions of the Affirmative Action Program including the submission of employment reports to the Purchaser for submission to the Authority. This contract is subject to N.J.A.C. 19:30-3.1 et seq. The Vendor agrees that all workers employed in the construction of the work shall be paid at a rate not less than the prevailing wage rate established by the New Jersey Commissioner of Labor and Industry pursuant to N.J.S.A. 34:11-56.30. (When Required) The Vendor shall keep accurate records showing the name, race, craft or trade, and actual hourly rate of wages paid to each worker employed in connection with construction of the work and to preserve such records for two years from completion of the work. Vendor shall comply with all local state and federal laws in performing under all Purchase Orders.

18. Termination. Purchaser reserves the right to terminate upon written notice all or any part of any written order. Any deposits for any material or service not completed or accepted will be returned in 5 business days.

19. Confidentiality. All any all correspondence will not be disclosed to any third party by the vendor for a period of 3 years.

20. Governing Law. All Purchase Orders shall be governed by and in accordance with the laws of New Jersey.

21. Notices. All notices will be in writing.

22. Conditions. The language of this document will change without notice and will be available electronically or on demand of the Vendor.


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