Modugo Vendor Terms & Conditions

Effective Date: September 19, 2023

Vendor/Supplier hereby accepts and acknowledges that the terms and conditions set forth herein are applicable to all Work Orders or Purchase Orders (“Order” or “Orders”) issued by Modugo, LLC (“MODUGO”). MODUGO’s Purchase Order – Terms and Conditions are subject to change, are available upon request or can be viewed at _________________________. Vendor/Supplier’s commencement of services or work set forth in an Order constitutes Vendor/Supplier’s agreement to be bound by the terms and conditions published at the issuance of the Order on MODUGO’s website.

1. SCOPE OF WORK & CHANGES. Vendor/Supplier agrees to provide all goods and/or perform all services as set forth in an Order pursuant to the terms and conditions contained herein. Vendor/Supplier acknowledges receipt of all the documents listed in the Order or expressly assumes the obligation to obtain and review all such documents. Additionally, the Vendor/Supplier assumes all of the terms and conditions of MODUGO’s contract(s) with its customers. Such a prime contract’s terms and conditions are incorporated by reference to the applicable Order and made a part of the Order as if fully set forth in the Order. Vendor/Supplier shall perform all work in a first-class, workmanlike manner without deviation from the Order unless otherwise agreed upon by MODUGO. All specifications, drawings, schematics, technical information, notes, instructions or other information referred to in the Order or contained in attachments or exhibits to the Order are incorporated herein by reference as well.

Supplier/Vendor will contact MODUGO’s representative upon discovering any error or inconsistency in the drawings or specifications, and will not proceed until the MODUGO representative has resolved such error or inconsistency in writing. MODUGO reserves the right at any time to make changes in the drawings and specifications or increase the scope of Vendor/Supplier’s work. Should such changes result in a variation in the Order’s delivery schedule, or in a change of the Order’s pricing, the parties will agree in writing upon an adjustment to the schedule or pricing. Vendor/Supplier will have no claim or right to payment for any changes or any extra work performed prior to receiving written direction from MODUGO. Vendor/Supplier will not make changes to the Order at the direction of anyone other than MODUGO’s authorized representative. If the parties have a dispute regarding the claim extras, disputed work, scope of work, emergencies or otherwise, the Vendor/Supplier will continue to complete all obligations under the Order notwithstanding the dispute.

2. PURCHASE PRICE. The prices for the goods and/or services required by the Order are firm prices, and not subject to increases due to any cause(s). The purchase price includes all applicable federal, state and local taxes and other charges in effect. If applicable, Vendor/Supplier will be responsible for obtaining any building or related permits to comply with the scope of work. Vendor/Supplier will keep detailed and accurate records and accounts for the proper financial management of the Order (including backup documents), and will preserve such records for three years after final payment. MODUGO will have access to such records upon request. The Order price includes the cost of all manpower, services, and supplies necessary and ancillary to completing the requirements of the Order without exception.

3. CANCELLATION OF PURCHASE ORDER. MODUGO may cancel all or any part of Orders at any time for any reason, for convenience and/or without cause, by verbal notice confirmed in writing by email. MODUGO’s obligation to Vendor/Supplier for canceled Orders, with or without cause, is limited to the Vendor/Supplier’s reasonable and actual out of pocket expenses for its work-in-process. MODUGO has no liability for canceled orders for non-custom goods, custom goods that Seller can or does sell to other customers, or services which were not provided. MODUGO will not be liable to Vendor/Supplier, or Vendor/Supplier’s subcontractor for consequential damages claims including, but not to be limited to, loss of profit, interest on claims, product development and engineering costs, rental, depreciation costs, and general and administrative burden charges from termination of Orders.

4. TERMINATION FOR CAUSE. If in MODUGO’s sole discretion it be determined Vendor/Supplier is insolvent, or at any time during the performance of the Order refuses or neglects to supply a sufficient number of properly skilled workmen, or sufficient materials of proper quality, or fail in any respect to execute the Order with promptness and diligence, or fail in the performance of any of its obligations under the Order, MODUGO may, after giving 48 hours notice to Vendor/Supplier, provide any such labor or materials to complete the Order and deduct the cost thereof from Order. In addition to all other remedies available at law or in equity, MODUGO may also terminate the Order and contract with other(s) for the completion of the Order. Any excess costs incurred will be paid by Vendor/Supplier to MODUGO.

5. DELIVERY. All goods provided and/or services provided must be performed in strict accordance with Order’s requirements as defined in the Order itself, the scope of work provided to Vendor/Supplier and/or the prime contract incorporated by reference to the Order. Vendor/Supplier will be responsible for all costs and time associated with repairs and/or replacement of any work not installed per drawings, specifications, and addendums. Delivery of goods will be F.O.B. at the location and on the date(s) specified on the Order. If applicable, no shipments may be made prior to a specified delivery date unless agreed to by MODUGO in writing. MODUGO reserves the right to withhold payment of invoices for materials shipped ahead of schedule without MODUGO’s prior written approval. If delivery of items or rendering of services is not completed by the time promised, MODUGO reserves the right, without liability and in addition to its other rights and remedies available through this Order or at law, to terminate this Order immediately, as to the whole or part, and to purchase substitute items or services elsewhere and charge Vendor/Supplier with any loss or expense incurred by MODUGO. Times and dates set forth in Orders are of the essence. In addition to MODUGO’s other remedies, Supplier/Vendor will be responsible for all liquidated damages charged to MODUGO arising from Vendor/Suppliers failure to timely perform its obligations.

6. INSPECTION AND REJECTION. MODUGO may inspect the goods and/or services performed before accepting delivery and/or any work performed. MODUGO’s payment obligations are subject to acceptance of the goods and/or services performed. Vendor/Supplier will bear all risk of loss and damage until MODUGO’s final inspection and acceptance. Title to goods does not pass to MODUGO until they are accepted by MODUGO. Goods and/or services may be rejected at MODUGO’s sole discretion if an inspection shows they are not furnished and/or performed in accordance with the samples, specifications, designs, warranty requirements and/or other expressed or implied requirements of the Order or contracts incorporated by reference. Upon Vendor/Supplier being given written notice from MODUGO, which may be provided to Vendor/Supplier by email, regarding corrections, repairs and/or replacement of goods and/or services performed which do not conform to the Order, Vendor/Supplier must correct any and all identified deficiencies within forty-eight (48) hours. This time period may be expanded by the parties if agreed to in writing by both Vendor/Supplier and MODUGO. If Vendor/Supplier fails to correct, repair and/or replace such defective goods and/or services performed within this period, MODUGO will make the corrections, repairs, and replacements, and all costs and expenses associated with such remedial work will be deducted from the Order’s price. Notwithstanding and/or in addition to the foregoing rejected goods may be immediately returned at Vendor/Supplier’s expense or may be held by MODUGO for disposition at Vendor/Supplier’s risk and expense. Vendor/Supplier’s failure to provide written instructions within ten (10) days or such shorter period as may be commercially reasonable under the circumstances after notice of non-conformity entitles MODUGO to charge Vendor/Supplier reasonable storage and handling fees or to dispose of the goods without liability to MODUGO.

7. INDEMNIFICATION. Vendor/Supplier, for itself and on behalf of its subcontractors their respective employees, agents and representatives, will protect, defend, indemnify, and hold harmless MODUGO and its employees, agents, assigns and customers from and against all demands, claims (including claims for contribution or indemnity), suits, losses or liability of any kind, including all associated legal costs and attorneys’ fees, incurred by or asserted against MODUGO arising from or related in any way to the acts, errors or omissions of Vendor/Supplier or its subcontractors and/or any individual or entity for which Vendor/Supplier is responsible, including, but not limited to, claims incurred by or asserted against MODUGO as a result of a Vendor/Supplier breach or alleged breach of the representations and warranties set forth in this Order, the use of any Vendor/Supplier provided defective goods or services, death or personal injury (including bodily injury) to any person including Vendor/Supplier’s employees, destruction or damage to any property, contamination of or adverse effects on the environment, and any clean-up costs in connection therewith, any violation of law, governmental regulation or order, or infringement of any copyright trade, trade secret, patent/invention or other intellectual property.

In addition, Vendor/Supplier will be liable for any damage caused by it in the course of the performing the Order. MODUGO will deduct from the Order price the cost of any repair work resulting from Vendor/Supplier’s performance of the Work charged back to MODUGO by its customer.

Supplier/Vendor warrants that its performance of any aspect of the Order will not infringe any patents or copyrights, and agrees to indemnify and hold harmless MODUGO, its agents, successors and assigns, and anyone selling or using any of MODUGO’s products against all judgments, decrees, costs and expenses resulting from any alleged infringement, and agrees to at its own expense, defend and hold harmless MODUGO or those using MODUGO’s products by reason of any such alleged infringement.

8. WARRANTY. Vendor/Supplier represents and warrants that: (A) all goods delivered are new (unless otherwise specified), of the quality specified, free from defects in design, material and workmanship and are of a quality of workmanship required by the best professional practices and procedures in similar manufacturing industries; (B) all services are performed in a good and workmanlike manner; (C) Vendor/Supplier has good and marketable title to the goods and has conveyed such title to MODUGO free from any encumbrances, liens, security interest or other title defects; (D) the goods or services purchased conform to applicable specifications, drawings, samples and other description referenced in the Order or documents attached hereto; (E) the goods purchased are merchantable and suitable for the purposes intended. Vendor/Supplier will provide MODUGO all guarantee/warranty documents and system(s)’s training, maintenance and/or operation manuals. Vendor/Supplier guarantees that if, within one year of the date of substantial completion, any work or goods delivered is found not to be in accordance with the requirements of the Order and/or violates these representations and warranties contained herein, the Vendor/Supplier will correct or otherwise cure the defect. Vendor/Supplier must make all repairs/corrections during the guarantee period within 72 hours, unless there is a life safety issue requiring Vendor/Supplier to make an immediate correction(s). In addition to the foregoing, Vendor/Supplier will also be bound to the warranty provisions of an applicable prime contract. Any repairs will be made at Vendor/Supplier’s sole cost and expense. All warranties in this Order will survive any inspection, delivery, acceptance, payment, expiration or earlier termination of this Order and such warranties will run to MODUGO, its successors, assigns, customers and users of its products. Any goods repaired or replaced and services re-performed will be further warranted as set forth above. If any equipment furnished by Vendor/Supplier has a manufacturer’s warranty (which will be in addition to Vendor/Supplier’s warranty as set forth above), Vendor/Supplier will secure such manufacturer’s warranty and deliver it to MODUGO or MODUGO’s customer prior to final payment.

9. SAFETY REQUIREMENTS & JOB SITE SUPERVISION. Vendor/Supplier is responsible for supplying all necessary materials, equipment, devices, and labor for implementation and upkeep of worksite safety as it relates to Vendor/Supplier’s scope of work. When executing any facet of this Order, Vendor/Supplier must meet or exceed OSHA and/or the safety requirements of any Governmental Agency(s) having jurisdiction over the project and/or this Order. All workers on site are required to wear the minimum PPE at all times, which includes hard hats, approved footwear, eye protection, proper clothing, and safety vest, and Vendor/Supplier will ensure his/her agents, employees, and/or representatives are wearing the proper PPE based on the work being performed. The Vendor/Supplier will be responsible for all penalties, fines, and costs imposed by governmental authorities and/or safety agency cited violations in connection with or resulting from any violations of, noncompliance with laws, regulations, codes, ordinances or directives. Vendor/Supplier will at all times protect and safeguard the job site, and will not allow any building, equipment, installation or any part thereof to be loaded with stored materials or construction equipment in a manner beyond its capacity or which would endanger the safety of personnel or the integrity of any structure or equipment. Vendor/Supplier will keep all Jobsite areas clean to MODUGO’s satisfaction at all times, and upon completion will promptly remove all debris and waste material at Vendor/Supplier’s expense, unless otherwise specified in writing.

When applicable, Vendor/Supplier will personally supervise or have a competent and qualified superintendent, acceptable to MODUGO and its customer, to supervise Vendor/Supplier’s performance at all times. The superintendent shall not be replaced without MODUGO’s approval, but will immediately be replaced if MODUGO or MODUGO’s customer deems he or she is unsatisfactory.

10. PAYMENT. Vendor/Supplier will only issue invoices after delivery and acceptance of goods and/or completion of services in accordance with the terms of the Order. Vendor/Supplier must submit separate invoices for each Order. The invoice must include the purchase order number, description of item(s)/service(s), quantities, unit price, and extended totals. A conditional lien waiver must be attached to each and every progress invoice submitted to MODUGO and a final lien waiver will be required and attached to the final invoice submitted to MODUGO. Vendor/Supplier agrees to invoice MODUGO no later than thirty (30) days after acceptance of goods or performance of the services ordered. MODUGO will not be obligated to make payment against any invoices submitted after such period. MODUGO may reject any invoice for noncompliance. MODUGO will issue payment within forty-five (45) days after receipt of a correct and conforming Vendor/Supplier invoice and supporting documentation required by the prime contract if applicable. Payment is deemed made when MODUGO’s check is mailed. If MODUGO made payment for goods or services subsequently rejected, such payment will be refunded by Vendor/Supplier within ten (10) days after MODUGO’s request or MODUGO can opt to have the sum deducted from subsequent payments due or to become due to Vendor/Supplier. The acceptance of the final payment by Vendor/Supplier, inclusive of deduction from the purchase price if applicable, constitutes a final waiver of all claims which can be brought by MODUGO against Vendor/Supplier arising out of the Order. MODUGO may deduct from any amounts due Vendor/Supplier any sum or sums owed by Vendor/Supplier to MODUGO whether in regard to the Order or other contractual arrangements.

Notwithstanding the foregoing, if MODUGO’s customer pays on draw schedule for work completed, Vendor/Supplier will be paid upon MODUGO’s receipt of funds from the customer. MODUGO will retain from each invoice the percentage of retainage to which MODUGO is bound by its customer, but not less than 10%. This amount will be held from each invoice payment. Retention will be released upon acceptance of the scope of work by the customer and MODUGO and receipt by MODUGO of a retention invoice from the Vendor/Supplier.

11. PREVAILING WAGE PROJECT. If the Order requires any services to be performed by Vendor/Supplier for or on a prevailing wage project, it is Vendor/Supplier’s responsibility to ensure all of the latest prevailing wages rules and regulations published by the State Department of Labor, Wage and Workplace Standards Division, Public Contract Compliance Unit are strictly adhered to. In the event of an audit by the State Department of Labor, Vendor/Supplier will be responsible for all costs associated with the audit and penalties or fees. Vendor/Supplier will also provide MODUGO’s Project Manager/ Territory Manager two (2) sets of signed and sealed certified payroll reports on a weekly basis. The balance of certified payroll reports must be submitted with final invoice.

12. LICENSURE. Vendor/Supplier represents and warrants it is has obtained any and all permits or licenses and is authorized, licensed and permitted to supply the goods and/or perform the services required in this Order by the state or local government where the project is located and/or has complied with all federal regulations regarding the goods being provided or the services being rendered.

13. INSURANCE. Vendor/Supplier represents and warrants it carries and is current with all policies of insurance required by either MODUGO’s vendor application or the project for which Vendor/Supplier will be performing its services. If Vendor/Supplier intends to or does subcontract any or all of its obligations under this Purchase Order to a third party vendor/supplier, Vendor/Supplier is required to have all of its vendors/suppliers comply with the above insurance requirements.

14. PRIVACY. All project drawings, specifications, and all other project documents are MODUGO’s property and are to be used only with respect to this Order and are not to be used on any other purchase order or distributed to any third party without the express wrote consent from MODUGO.

15. RELATIONSHIP OF THE PARTIES. Vendor/Supplier and MODUGO are independent contracting parties and nothing in this Order make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.

16. ASSIGNMENT AND SUBCONTRACTING. Vendor/Supplier will not assign or subcontract (in whole or in part) this Order or its obligations without MODUGO’s prior written consent.

17. GOVERNING LAW. All disputes relating or referring to Orders will be determined in the courts in the State of Michigan, and the parties consent to such jurisdiction.

18. FORCE MAJEURE. MODUGO will not be responsible, in any manner, for any failure or delay in the performance of any of its obligations caused by a strike, lockout or other industrial disturbance, act of public enemies, any government action, any civil or military action, insurrection, riot, landslide, hurricane, drought, fire, earthquake, explosion, flood, storm, act of God, or any other cause or event not reasonably within MODUGO’s control. Vendor/Supplier will immediately notify MODUGO in writing if its performance is or will be delayed due to any Force Majeure Event and MODUGO may either (a) extend the time of performance, or (b) terminate the uncompleted portion of the Order at no cost to MODUGO.

19. NOTICES. All notices must be in writing and may be sent by way of email.

20. REMEDIES/NON-WAIVER. MODUGO’s remedies for Vendor/Supplier’s breach are cumulative and in addition to any other or further remedies provided by law or in equity. MODUGO waiver or failure to insist on strict performance hereunder will not operate or be construed as a waiver by such party of any subsequent breach. Any delay or omission in exercising any right, power or remedy will not impair MODUGO’s ability to enforce its rights.

21. SEVERABILITY & SURVIVAL. If provision hereof determined to be is invalid or unenforceable, such provision will be enforced as nearly as possible in accordance with applicable law, and while the remainder of this Order will remain in full force and effect and bind the parties according to its terms. Any provisions herein that by their nature extend beyond the expiration, termination or fulfillment of this Order will survive such expiration, termination or fulfillment.

22. EQUAL OPPORTUNITY EMPLOYMENT. Vendor/Supplier shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, national origin, disability, qualified veteran status, age, genetic information or any other characteristic protected by law. Such action shall include but is not limited to, the following: employment, upgrading demotion, or transfer recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, including apprenticeship. Vendor/Supplier agrees to post notices, which set forth all federal and state provisions of non-discrimination in conspicuous places available to employees or applicants for employment.

23. E-VERIFY. Vendor/Supplier agrees to comply with any Federal, State, or Local E-Verify requirement if required by MODUGO.

24. PRIOR AGREEMENTS. These terms and conditions govern all future Orders between MODUGO and Vendor/Supplier and supersede all prior agreements. MODUGO may modify these terms and conditions at any time and Vendor/Supplier will be bound by such modifications. It is Vendor/Supplier’s responsibility to check the above web address prior to the performance of any Order.