M. A. Mortenson Company
700 Meadow Lane North
Minneapolis, Minnesota 55422
Telephone (763) 522-2100

Supplier Terms and Conditions

1. Supplier will provide to Mortenson all shipping papers, including without limitation the original bill of lading, express receipt and packing slip (stating “Order Complete” if the last one in an order), on or before the day following shipment to Mortenson. 
2. Supplier will invoice each order and shipment for goods separately and send all invoices to the invoice address listed on the front of this Order.  Supplier’s invoices will be accompanied by all documentation supporting its fees. All invoices, whether for goods or services received by the 25th of each month will be paid on either the 10th or 15th of the following month.
3. All documents provided by Supplier will include the number of the purchase order set forth above.
4. Supplier will deliver the goods in accordance with Mortenson’s instructions n the purchase order. If Supplier fails to do so, it will pay any resulting additional charges, including any extra handling charges.  Supplier retains all risk of loss with respect to the goods until they are properly delivered to Mortenson.  All goods will be shipped consistent with required delivery date, FOB destination, unless instructed otherwise by Mortenson.   If otherwise specified good swill be shipped via least expensive mode of transportation.  Freight charges, when applicable, must be stated separately with respect to each item shipped.  Shipments are not to be sent COD or Shipper’s Order. 
5. Supplier agrees to make deliveries as specified on the face of this Order and agrees that time is a criteria in the performance of this Order. If Supplier delivers the goods at a time other than that specified on this Order, Mortenson may cancel this Order without any cancellation charges or penalties or withhold payment for the goods until the original delivery date, and Supplier will pay all associated costs, including, but not limited to, expedited routing costs, return shipping charges, and storage expenses.
6. Mortenson may inspect and test all goods delivered, and Supplier agrees to provide reasonable assistance for such inspections and tests, whether before or after payment is made. If any goods are defective or do not conform to this Order, Mortenson may cancel this Order as to those goods, accept the goods at a price reduction acceptable to Mortenson and Supplier, or reject the goods.  Supplier agrees to pay the costs and to assume all risk associated with rejected goods, including but not limited to, costs of storage, transportation charges for return, and delivery of replacements.
7. If price is not stated in this Order, the goods, materials, services shall be billed at the price last quoted or at the prevailing market price, whichever is lower. 
8. Supplier warrants that all goods furnished are new, conform to the terms of this Order and any specifications provided by Mortenson, are free from defects in materials and workmanship, are free from liens and encumbrances, are suited for their intended use and are merchantable. Supplier warrants that any services performed pursuant to this Order will be free from defects in workmanship and design, will be accurate and complete in all respects and that Supplier’s personnel and contractors performing the services will have adequate education and training to perform the services.  Supplier agrees, if so directed by Mortenson, to correct any defect or to replace any defective goods, as applicable, within ten days of receiving notice from Mortenson. If Supplier fails to do so, it will pay all costs incurred by Mortenson to cure the noticed defect.    Supplier’s warranties shall continue for one year after Mortenson’s acceptance of the Goods.
9. Mortenson reserves the right to make changes in specifications or delivery.  If such a change causes an increase or decrease in the cost or time required for performance of this Order, adjustment may be made to the price and/or delivery terms as agreed upon by Supplier and Mortenson.
10. If this Order is for services, Supplier will perform such services as an independent contractor of Mortenson.
11. INSURANCE.  Prior to execution of this agreement, Supplier shall procure, maintain and pay for such insurance as will protect against claims for bodily injury or death, or for damage to property, including loss of use, which may arise out of Supplier’s operations or by anyone employed by any of them, or by anyone for whose acts any of them may be liable.  Such insurance shall not be less than the greater of coverages and limits of liability specified in the Agreement or coverages and limits required by law.

    11.1 Supplier shall procure and maintain the following minimum insurance coverages and limits of liability:

    Workers' Compensation	Statutory Limits
    Employer's Liability	$1,000,000 each accident $1,000,000 disease policy limit $1,000,000 disease each employee
    Commercial General Liability	$2,000,000 each occurrence $2,000,000 aggregate $2,000,000 products/completed operations aggregate
    Automobile Liability	$2,000,000 each accident

    1. Commercial General Liability insurance required under this Paragraph shall be written on an occurrence form (ISO Form CG 00 01 or equivalent) and shall include coverage for Products/Completed Operations extending two (2) years after final acceptance of the Project by Owner or such longer period as the Contract Documents may require, Broad Form Property Damage including Completed Operations, Personal Injury, and Blanket Contractual Liability insurance applicable to Supplier's defense and indemnity obligations under Article 16 below.  Commercial General Liability insurance shall include “stop gap” coverage for work in those states where Workers’ Compensation insurance is provided through a state fund if Employer’s Liability coverage is not available.
    2. Automobile Liability insurance required under this Paragraph shall include coverage for all owned, hired and non-owned automobiles.
    3. Workers’ Compensation coverage shall include a waiver of subrogation against Mortenson and Owner.

    11.2   Employer's Liability, Commercial General Liability and Automobile Liability insurance may be arranged under single policies for full minimum limits required, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy.
    11.3   Supplier shall endorse its Commercial General Liability (utilizing ISO endorsements CG 20 10 and CG 20 37 or equivalent), Automobile Liability and Umbrella/Excess Liability policies to add Mortenson as an additional insured with respect to liability arising out of (a) operations performed for Mortenson by or for Supplier, (b) Supplier’s product/completed work, (c) acts or omissions of Mortenson in connection with their general supervision of operations by or for Supplier, (d) Supplier’s use of Mortenson’s tools and equipment, and (e) claims for bodily injury or death brought against the additional insured by Supplier's employees, or the employees of its subcontractors of any tier, however caused, related to the performance of operations under the Contract Documents.  Such insurance afforded to Mortenson as additional insured under Supplier's policies shall be primary insurance and not excess over, or contributing with, any insurance purchased or maintained by Mortenson.
    11.4   Supplier shall maintain in effect all insurance coverages required under this Article, and by the Contract Documents, at Supplier's sole expense and with insurance carriers licensed to do business in the state in which the Project is located and having a current A.M. Best rating of no less than A minus (A-), unless a different A.M. Best rating is accepted by Mortenson in writing.
    11.5   Mortenson shall not be obligated to review certificates or other evidence of insurance, or to advise Supplier of any deficiencies in such documents, and receipt thereof shall not relieve Supplier from, nor be deemed a waiver of Mortenson’s right to enforce, the terms of Supplier’s obligations hereunder.  Mortenson shall have the right to examine any policy required under the Agreement.

12. Mortenson reserves the right to terminate this Order, in whole or in part, at any time by written notice to Supplier.  Upon receipt of such notice, Supplier will immediately stop work and cause its contractors and suppliers to stop work, preserve and protect materials, and conclude performance in accordance with Mortenson’s instructions. Upon termination, Supplier will be entitled to equitable compensation for goods delivered, custom goods under manufacture, and services rendered.   Supplier agrees that it will not be entitled to any damages as the result of cancellation by Mortenson.
13. While on Mortenson’s premises or project sites, Supplier and its employees, agents and representatives shall comply with all safety and security regulations of Mortenson and take all necessary precautions to prevent injury or damage to persons or property. Supplier shall comply with all applicable laws, rules and regulations, including without limitation, those concerning employment discrimination, in its performance of this Order.
14. Supplier may not assign this Order, in whole or in part, or delegate any of its obligations under this Order without the prior written consent of Mortenson.
15. This Order shall be governed by, and construed and enforced in accordance with, the laws of the State of Minnesota, without regard to its conflicts of law principles. 
16. Supplier will indemnify, hold harmless and defend Mortenson and its affiliates and their respective officers, directors, employees, representatives and agents from and against all claims, liabilities, damages, demands, causes of action, settlements, and judgments of every kind resulting from injury or death to any person or damage to any property, arising out of or relating to any goods manufactured (in whole or in part) or sold by or otherwise attributable to Supplier, or any services rendered, or the use of any such goods, or the conduct, negligence, willful misconduct, misrepresentation, breach of warranty or other breach of this Agreement on the part of, or for a violation of any laws in connection with the performance of this Order by, Supplier or its employees, agents, representatives or contractors. Mortenson will only be liable to Supplier for actual damages and not for any incidental, consequential, or punitive damages. 
17. Supplier will not release any advertising or any other form of publicity mentioning Mortenson or its employees unless Mortenson approves such advertising or other form of publicity in writing prior to its release.
18. All notices under this Order will be in writing and will be delivered by hand delivery, by certified mail, return receipt requested, or by facsimile transmission, email or electronic data interchange (transmission confirmed in writing) to the parties at the addresses and facsimile numbers shown on the face of this Order, or to such other addresses or facsimile number as Mortenson or Supplier shall give the other notice of in writing.
19. This Order may only be changed by the written agreement of Supplier and Mortenson. This Order is an acceptance of an offer by the Supplier. The acceptance is expressly conditioned on Supplier’s assent to all terms and conditions contained herein and only these contained herein notwithstanding any different or additional terms or conditions submitted to Mortenson by Supplier either before or after the issuance of this Order. Supplier shall be deemed to have accepted the terms and conditions of this Order upon the earlier to occur of (a) Supplier’s commencement of performance hereunder or (b) Supplier’s other acceptance of the terms hereof.  This Order, and any documents referred to on the face or reverse side hereof, supersedes all prior understandings, transactions, communications, and agreements, written or oral, with respect to the matters covered hereby. 
20. Supplier warrants that its performance under this Order will not be in violation of any existing obligation of Supplier or its personnel and will not violate or infringe upon the rights of any third party, including but not limited to property, contractual, employment, trademark, trade secrets, copyright, patent, proprietary information and non-disclosure rights.
21.  If Mortenson requires the services or goods ordered pursuant to this Order in order to perform under a contract or subcontract with the federal government, Supplier will be subject to certain federal acquisition regulations, and Mortenson will provide Supplier with notice thereof. In that event, Supplier agrees to comply with, and to perform this Order in accordance with, such regulations. 
22. Supplier will be responsible for all costs and expenses in connection with any product recalls.
23. Supplier acknowledges that it may have access to confidential and proprietary information and trade secrets of Mortenson during the performance of this Order and agrees not to disclose any information identified as proprietary or confidential to any person except as necessary in connection its performance of this Agreement (and in such instance shall require that such person comply with the obligations of this paragraph), and Supplier shall not use such information or for any purpose other than to perform this Agreement. If Supplier has executed a separate Confidentiality Agreement with Mortenson, Supplier agrees that its use and disclosure of Mortenson’s confidential and proprietary information and trade secrets shall be governed by, and be subject to, the terms and conditions of such Confidentiality Agreement.  All information, equipment, materials and data of every kind and description that Supplier receives, directly or indirectly, from Mortenson or from a third party on behalf of Mortenson is and shall remain the property of Mortenson.
24. Mortenson will have all rights and remedies available to it at law and in equity.  Such remedies are cumulative and may be exercised concurrently or separately.   The exercise of one remedy will not be an election to exclusion of other remedies.
25. The waiver by Mortenson of any term or condition will not constitute a waiver of any other term or condition or of the same term or condition at any time in the future.  A waiver must be in writing and signed by Mortenson in order to be enforceable.  If any term or condition is held to be unenforceable, the remaining terms and conditions will remain in effect, to be construed as if the unenforceable term or condition was originally deleted from this Order. 
26. The terms and conditions of this Order that are, by their nature, intended to survive the termination or expiration of this Order shall survive such termination or expiration.
27. Supplier will continue to perform this Order during the pendency of any dispute or legal proceeding between or involving Supplier and Mortenson.
28. Supplier will furnish Mortenson with all Material Safety Data Sheets for “qualifying material” upon the delivery of such material to Mortenson.
29. Supplier agrees that all quotations by Supplier will remain valid for at least 90 days.  If Supplier is unable to provide a quote, it must indicate as such on this Order and return this Order promptly.
30. All notices under this Order shall be in writing and shall be delivered by hand delivery, facsimile transmission (transmission confirmation received by sending party) or certified mail, return receipt requested, to the parties at their addresses or facsimile numbers shown on the face of this Order, or to such other address or facsimile number as either party shall notify the other of in writing.          
               

    
    Mortenson Initials___________                     Supplier Initials___________