US Terms and Conditions

1. INTRODUCTION: The following Terms and Conditions shall govern the procurement of the products and/or services which are the subject matter of any Purchase Order or purchase (the “Order”) issued by MacLellan Services Inc., MacLellan Integrated Services Inc., or MacLellan HVAC and Mechanical Inc. (“MacLellan”) to a supplier (“Supplier”). By accepting the Order and/or performing thereunder, Supplier will be deemed to have accepted these Terms and Conditions. The Order, including these Terms and Conditions, shall constitute the entire contract between the parties, and supersedes any and all prior written and oral agreements or understandings relating to such subject matter. It is expressly agreed that the terms of the Order and these Terms and Conditions shall supersede any additional or contrary terms, limitations or conditions set forth in any acceptance, quote, proposal or other document, and no terms included in any such document shall apply. The Order and these Terms and Conditions may be amended or modified only by a writing executed by both parties. Notwithstanding the foregoing, if MacLellan and Supplier have also executed a written agreement that governs the procurement of the products and/or services which are the subject of the Order (the “Written Contract”), then the terms and conditions of that Written Contract control and supersede the provisions of the Order and these Terms and Conditions to the extent inconsistent and/or conflicting therewith.


2. AUTHORITY: The individual agreeing to these Terms and Conditions on behalf of a Supplier that is a corporation, limited liability company or other legal entity represents and warrants that he or she has the legal authority to bind such entity to these Terms and Conditions, in which case the term “Supplier” shall refer to such entity. If MacLellan finds that the individual agreeing to these Terms and Conditions on behalf of an entity does not have the legal authority to bind such entity, the individual agreeing to these Terms and Conditions will be personally responsible for the obligations contained in these Terms and Conditions. MacLellan shall not be liable for any loss or damage resulting from MacLellan’s reliance on any instruction, notice, document or communication reasonably believed by MacLellan to be genuine and originating from an authorized representative of such entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, MacLellan reserves the right (but undertakes no duty) to require additional authentication.


3. CHOICE OF LAW: The Order and these Terms and Conditions shall be governed by the laws of the Commonwealth of Kentucky, without regard to its conflicts of laws doctrines. All disputes, controversies or claims arising out of, or in connection with, the Order shall be litigated exclusively in the state or federal courts located in Fayette County, Kentucky. Supplier hereby agrees to accept service of process as if it were personally served within the Commonwealth of Kentucky.


4. PRICING: The prices specified in the Order are fixed prices and are valid for the entire duration of the Order. Supplier shall not make changes to the pricing or charge additional fees or surcharges which are not detailed in the Order without MacLellan’s prior written approval.


5. SHIPMENT AND DELIVERY:
a) Supplier shall deliver all products to MacLellan as set forth in the Order, subject to the terms and conditions outlined herein. MacLellan will pay standard freight charges. MacLellan shall not be liable for any delays, loss or damage in transit.
b) Supplier may make partial shipments of products to MacLellan. Each shipment will constitute a separate sale, and MacLellan shall pay for the units based upon the agreed upon payment terms outlined herein.

 6. PAYMENT TERMS: Supplier shall remit invoices to MacLellan for the Order within 48 hours after the products are shipped or the services are completed. Supplier’s invoices must contain the relevant Order number(s) and any invoice that fails to contain such information shall be rejected. Payment of each invoiced amount is due 45 days after the invoice date, unless otherwise mutually agreed upon in writing by MacLellan and Supplier.


7. EMPLOYEE TAXES AND BENEFITS: Supplier shall be solely responsible for (a) withholding all local, state, and federal taxes from its employees who provide services under the Order (each, an “Associate”), and (b) providing to its Associates all worker’s compensation benefits and other benefits required by law. Supplier and MacLellan shall cooperate to (i) establish the rate of pay and method of payment for Associates, and (ii) provide accommodations required for Associates under applicable law, including the Americans with Disabilities Act and the Family and Medical Leave Act. Supplier represents that Associates are not MacLellan employees or agents and that Supplier is fully responsible for its Associates’ acts. Supplier shall defend and hold MacLellan harmless from and against any actions, claims, costs (including attorney fees), administrative proceedings, and suits brought against MacLellan by reason of Supplier’s failure to comply with such laws and regulations or representations made herein.


8. PRE-EMPLOYMENT: Prior to assigning any Associate to MacLellan, Supplier shall conduct a background check and drug screening for such Associate which will, at a minimum, include the requirements outlined herein. Unless otherwise notified by MacLellan, Supplier may use a reputable vendor of its choosing to conduct such checks and screenings. All costs associated with background checks and drug screenings are the responsibility of Supplier and are not billable to MacLellan.


A. ASSOCIATE PRE-ONBOARDING REQUIREMENTS
1) Prior to being placed at MacLellan’s or its customer’s property to perform services, potential Associates are required to submit various documents to Supplier, sign certain agreements and pass certain tests, including, but not limited to, drug screening and background checks, per the requirements of MacLellan’s process and procedures for on-boarding Associates. Prior to such placement, Supplier shall submit to MacLellan the relevant documents and follow the process outlined herein (the “Onboarding Requirements”).
a) Screening. Supplier will (in accordance with applicable law) screen out and not provide to MacLellan candidates who (i) are under 18 years of age, (ii) are not capable, with or without reasonable accommodation, of meeting the physical demands of the assignment as described by MacLellan, (iii) do not read and write English sufficiently to perform the required functions of the job, or (iv) fail to pass background checks and drug screenings as required herein.
b) Requirements. Supplier will not assign any Associate to MacLellan unless Supplier completes and submits the documents described below to MacLellan for review. No Associate shall be assigned to MacLellan until MacLellan has reviewed and approved all information requested by MacLellan. The following documents shall be provided upon MacLellan’s request:
i. Written confirmation that an Associate is authorized to work and/or provide services in the United States;
ii. Written confirmation an Associate meets MacLellan’s drug screening and background check requirements described herein;
iii. If required, results for any skills test prescribed by MacLellan and administered by Supplier.
c) Associate acknowledgement. Supplier will require each Associate to sign an acknowledgement and
consent that their information listed above will be stored and made available for reviews and audits
by MacLellan personnel.
 2) Review Process. If Supplier fails to submit any required documents or if any such document contains errors, omissions, or does not meet the Onboarding Requirements, MacLellan will reject such documents and return them to Supplier for correction and/or clarification. Supplier shall have the opportunity to re- submit such documents within three (3) business days of receipt of the rejection. Failure to timely resubmit corrected documents will preclude that Associate from providing services pursuant to the Order.
3) Amendments. MacLellan, from time-to-time, may require Supplier to submit additional documentation by giving written notice to Supplier. Notwithstanding Section 1 of these Terms and Conditions, the Parties agree that such notice shall be deemed to amend the Onboarding Requirements.
B. BACKGROUND CHECK AND DRUG SCREENING POLICY GUIDELINES
1) This Policy must be followed exactly as written and supersedes any contradictory or pre-existing policy communicated to Supplier regarding such policies and concerning the assignment of Associates at MacLellan’s or its customer’s properties.
2) Supplier shall ensure that background checks on existing and prospective Associates are completed to ensure that due diligence is being done to avoid ineligible individuals having access to confidential information of MacLellan or its customers.
3) Supplier shall create compliance guidelines and ensure consistency in verifying prospective and current Associate background records to avoid putting MacLellan at risk with MacLellan’s or its customer’s confidential information. If it is found that any prospective or current Associate has misrepresented any information listed on the application and or background release form, such individual will not be assigned or will be released from an existing assignment, as applicable.
4) Supplier shall conduct a complete background check for all prospective Associates. Supplier shall review all results based on its established hiring guidelines which shall comply with the industry standards and these Terms and Conditions.
5) Supplier, at its own cost, shall contract with a reputable vendor of its choice to provide the following background checks, verifications and drug screening services:

a)
Criminal Records (Federal and all Counties of residence)
i. Federal and County searches are to be conducted with a minimum of 7 years search or such shorter period as may be required by law.
ii. A documented order review process shall occur which includes matching key identifiers used to verify the identity of the prospective candidate, to include at least two of the following: name, date of birth, social security number, driver’s license, or address.
iii. A candidate shall not be considered for assignment to MacLellan if the background check discloses any violent felony offenses within the prior 7 years and/or any sexual felony offenses within the prior 7 years. Criminal background checks and assessments will be conducted in accordance with all applicable federal and state laws, rules and regulations, including without limitation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. All criminal background checks for Associates assigned to MacLellan will be conducted in accordance with EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 published on April 25, 2012, as amended (EEOC Publication No. 915.002). Any decision to exclude a candidate from employment based on past criminal conduct will be job related and consistent with business necessity. Supplier and MacLellan will utilize a targeted screen process to consider the nature of the candidate’s crime, the time elapsed, the nature of the job to be

 performed by the candidate, and whether such candidate would come in contact with confidential information. Individualized assessments will be performed for those candidates identified by a criminal background check to ensure the application of this policy to the candidate is both job related and consistent with business necessity.
b) Drug Screening
 Pass result on a ten (10) panel drug screen (amphetamines, cocaine metabolite, marijuana metabolite, opiates, PCP, benzodiazepines, barbiturates, methadone, propoxyphene and Quaaludes)
6) Supplier shall review all results to determine whether the candidate is assignable to MacLellan or capable to perform services at MacLellan’s or its customer’s job location.
7) Supplier shall review the background check and the drug screening to determine if a candidate has passed or failed.
8) A candidate that does not pass the background check and the drug screening shall not be assigned to MacLellan or perform services under the Order.
9) Associates who were previously assigned to MacLellan must undergo an additional background check and drug screening if more than thirty (30) days has elapsed since the end of such previous assignment.
10) Credit checks and/or motor vehicle reports (MVRs) are only required for specific jobs based on job
description, relevance and scope of responsibility for the candidate.
11) Supplier shall be solely responsible for obtaining and maintaining all requisite work permits, visas,
and any other necessary documentation prior to the provision of services by any Associate. Supplier
represents that Supplier and its Associates are authorized to perform services under the Order.
12) Notwithstanding Section 1 of these Terms and Conditions or any provision in the Order to the contrary, MacLellan may from time to time change the procedures outlined herein upon written notice
to Supplier and without a written amendment to the Order.


9. INSURANCE: Supplier (including its subcontractors) shall, at its sole cost and expense, procure and maintain insurance which shall include employer’s liability, workers’ compensation, comprehensive general liability, and automotive or vehicle liability, and any other necessary insurance coverages required by MacLellan, its customers, or applicable law. Supplier agrees to provide MacLellan with a certificate of insurance evidencing the required coverage, and to include a waiver of subrogation in favor of MacLellan. Unless otherwise agreed to in writing by MacLellan, the insurance coverage for Supplier (including its subcontractors) shall not be less than the following:
a. Employer’s liability insurance in an amount of not less than One Million Dollars (USD$1,000,000) for claims in one (1) year.
b. Workers’ compensation providing statutory coverage that shall comply in all respects to the statutes of the jurisdiction, state, locality, or province where the services are provided or performed.
c. Comprehensive general liability in the form of general liability or umbrella coverage, including coverage for products, completed operations, contractual liability, bodily injury, and property damage with limits of not less than Five Million Dollars (USD$5,000,000).
d. Automobile or vehicle liability, including owned, non-owned, and hired vehicles, with limits of (i) not less than One Million Dollars (USD$1,000,000) for automobiles and vehicles, (ii) Two Million Dollars (USD$2,000,000) for trucks larger than pick-ups but smaller than tractor trailer units, and (iii) Five Million Dollars (USD$5,000,000) for tractor trailer units, in each case with a combined single limit per occurrence. The coverage amounts may be in the form of automobile or vehicle liability or umbrella coverage.

 10. INDEMNIFICATION: Without limiting Section 7 of these Terms and Conditions, Supplier shall indemnify and hold harmless MacLellan and its officers, directors, shareholders, employees, agents, parent companies, subsidiaries, affiliates, successors and assigns from any and all liability, costs, expenses or losses arising in any way out of (a) any breach of these Terms and Conditions or the Order, (b) the acts, omissions, performance, negligence or willful misconduct of Supplier’s agents or employees (including its Associates) in connection with the Order or while on property owned or leased by MacLellan or its customers, or (c) any failure by its Associates to fully comply with all local, state, and federal laws and regulations while performing services under the Order.


11. SILICONE FREE: Notwithstanding any provision of the Order to the contrary, all products and items purchased or supplied in conjunction with the Order are to be manufactured and assembled without the use of silicone. This includes but is not limited to all equipment, components, assemblies of components, gaskets, diaphragms, seals, lubricants, sealants, cleaning compounds, chemicals and prime or finish paints. If the products or items provided under the scope of the Order are not 100% silicone free, then immediately and in any case prior to delivery, Supplier shall notify MacLellan in writing. MacLellan will provide Supplier with a course of action to remedy the situation acceptable to MacLellan in its sole discretion. Notwithstanding anything else contained herein or in the Order, Supplier (a) acknowledges that a breach of this Section may cause significant direct, consequential, indirect or special damages to MacLellan and/or its customers, and (b) shall be responsible for any such direct, consequential, indirect or special damages caused in whole or in part by breach of this Section and without regard to any other limitation of damages provisions contained herein or in the Order. MacLellan reserves the right to cancel the Order without penalty if products or items purchased are not 100% silicone free. Please direct any questions or concerns relating to this Section to MacLellan at (859) 219-5400.


12. SAFETY: Associates performing services on MacLellan’s or its customer’s properties shall exercise reasonable care and adhere to all local, state, and federal laws and regulations pertaining to workplace safety and the handling, storage, and transportation of hazardous materials while performing services under the Order. Associates while on MacLellan’s and/or its customer’s properties shall also comply with any and all workplace rules and policies established by MacLellan and its customers to ensure the safety of the workplace.


13. CONFIDENTIALITY. MacLellan, Supplier, and their respective agents and employees (including Associates), shall not disclose to anyone any confidential, proprietary or trade secret information that comes to the attention of the receiving party, or its agents or employees (including Associates), in connection with the Order. Both parties acknowledge that compliance with this Section is necessary for each to protect proprietary and confidential information, and that a breach of this Section by either party, or its agents or employees (including Associates), may result in irreparable and continuing damage, for which money damages may not provide adequate relief. Consequently, the parties agree that in the event of a breach of this Section, the non-breaching party may be entitled to both (1) a preliminary and/or permanent injunction in order to prevent continuation of such harm and (2) money damages insofar as they can be determined.


14. NON-SOLICITATION. Supplier agrees that, during the term of the Order and for a period of eighteen months after its conclusion, Supplier will not solicit for hire any employee of MacLellan or otherwise persuade or cause any employee to discontinue working for MacLellan. MacLellan agrees that, during the term of the Order and for a period of eighteen months after its conclusion, MacLellan will not solicit for hire any employee of Supplier (including Associates) or otherwise persuade or cause any employee (including Associates) to discontinue working for Supplier. For purposes of this Section, publication of job postings in a publicly available publication or forum, such as in a trade magazine or newspaper or at a job fair or on a website, or publication of openings with a career placement office or firm, shall not be considered solicitation.

 15. WAIVER OF BREACH. The waiver by Supplier or MacLellan of a breach of a provision of the Order or these Terms and Conditions shall not operate or be construed as a waiver of any later breach of the same or any other provision thereof.


16. SEVERABILITY. Should any provision of these Terms and Conditions or the Order be found to be unenforceable by a court of law, the remaining provisions shall not be effected thereby.


17. ASSIGNMENT. No right or duty, in whole or in part, of Supplier under the Order may be assigned, transferred, delegated, or sold without the prior written consent of MacLellan.


18. INDEPENDENT CONTRACTORS. The parties acknowledge that the parties are independent contracting parties, and that neither the making of the Order nor the performance of any of the provisions hereof shall be construed to constitute either party as an agent or legal representative of the other party for any purpose, nor shall the Order be deemed to establish a joint venture, partnership, franchisee, or employer-employee relationship.


19. FORCE MAJEURE. In the event that a delay or failure of a party to comply with any obligations created by the Order is caused by a force majeure condition, that obligation shall be suspended during the continuance of the force majeure condition. For the purposes of the Order, the term “force majeure” shall mean any event beyond the control of the parties, including, without limitation, fire, flood, riots, strikes, epidemics, war (declared or undeclared and including the continuance, expansion or new outbreak of any war or conflict now in existence) embargoes, and governmental actions or decrees.


20. ENFORCEMENT. In the event either party is in default of its obligations under these Terms and Conditions or the Order, the non-defaulting party may give written notice of the default to the defaulting party, and the defaulting party shall have seven (7) days to cure the default. If such default is not timely cured, the non-defaulting party may terminate the Order and pursue all available remedies against the defaulting party.


21. EXTRA WORK. Any work requested by MacLellan that falls outside of the scope of the Order shall be considered extra work. Any and all extra work charges shall be invoiced separately from the Order. MacLellan shall not be liable for extra work charges unless MacLellan requests such extra work in writing.


22. WARRANTIES. Supplier warrants that:
a) Supplier has the right to enter into the Order, and Supplier and its Associates have all necessary rights,
permits, authorizations and licenses to provide the services and perform their obligations under the
Order, and the same will not violate any other agreement or contract to which Supplier is a party;
b) Supplier and its Associates shall comply with all applicable laws and regulations in connection with the
performance of the services, including without limitation, compliance with any applicable
anticorruption and cybersecurity laws and regulations;
c) Supplier and its Associates have the proper skill, training and background so as to be able to perform
the services in a competent and professional manner.


23. BREACH; ATTORNEY FEES. In the event of any breach of these Terms and Conditions or the Order, the non-breaching party shall be entitled to recover its reasonable attorney fees incurred in connection therewith. The remedies herein provided shall be cumulative and no single remedy shall be construed as exclusive of any other remedy. Failure of the non-breaching party to exercise any remedy at any time shall not operate as a waiver of the right of such party to exercise any remedy for the same or subsequent breach at any time thereafter.
 

Revision 1 – 08/21/2019

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