Terms of purchase that are referenced in the purchase orders for MBT NEVADA
TERMS AND CONDITIONS OF PURCHASE
These terms and conditions (“Conditions”) shall apply to all purchase orders (“Purchase Orders”) for the purchases by and between MBT Nevada LLC
(“MBT”) and the supplier identified on the attached purchase order (“Supplier”).
1. Acceptance of Conditions. Supplier’s execution or commencement of work or delivery pursuant to the Purchase Order shall constitute acceptance of
the Purchase Order and these Conditions and a waiver by Supplier of its own general terms and conditions of sale contained in its quotation,
acknowledgement or acceptance of the Purchase Order or similar documents. Other terms and conditions (including Supplier’s standard printed terms
and conditions) shall not apply to Purchase Orders unless expressly set forth herein or in another duly executed written agreement between the
parties. Any additional or different terms proposed by Supplier are unacceptable to MBT and are expressly rejected.
(a) Timing of Deliveries. Supplier will deliver the Supplies to the destination indicated by MBT in the Purchase Order by the date(s) specified in the
applicable Purchase Order (the “Delivery Date”). Supplier may not deliver the Supplies more than five (5) calendar days in advance of the Delivery Date
without the prior written consent of MBT. In the event Supplier fails to deliver fully conforming Supplies by the required Delivery Date, MBT, at its option
and in addition to any of its other rights or remedies, may: (i) require Supplier to expedite delivery of Supplies at Supplier’s own expense; (ii) extend
the required Delivery Date; or (iii) cancel the applicable Purchase Order.
(b) Shipping. Supplier shall prepay freight to all destinations. Each shipment will be accompanied by a packing slip with the count and/or weight of the
feedstock being delivered.
(c) Non-Conformance. If MBT detects a discrepancy in the count and/or weight of the feedstock, MBT will notify Supplier within thirty (30) days. MBT
may reject any Supplies that do not substantially conform to the specifications required by MBT in the applicable purchase order by delivering written
notice of rejection to Supplier before the end of the foregoing inspection period.
(d) Transfer of Risk. Title to, liability for, and risk of loss of the Supplies shall remain with Supplier until delivery, whereupon title to, liability for, and
risk of loss shall pass to MBT.
(e) Quality. Upon the delivery of any shipment of Supplies, MBT shall have the right to inspect the Supplies to determine if they meet the quality
standards required by it, in its sole discretion.
3. Payment. The agreed price for the Supplies shall be specified in the Purchase Order and shall be inclusive of all charges, taxes, or other costs. The
agreed prices are firm and shall not be subject to any increase by Supplier without MBT’s prior written consent. All undisputed payments shall be made
within 90 days from the end of the month in which the relevant Supplies are received or receipt of invoice, whatever occurs later. MBT reserves the
right to withhold payment if Supplier submits an invoice to MBT for an amount other than the agreed price. MBT reserves the right to deduct from any
monies payable to Supplier such amounts as are due to MBT by Supplier on any account whatsoever. Payment by MBT shall not release Supplier from
its liability with regard to the Supplies delivered or the amount invoiced. Under no circumstances shall such payment waive MBT’s right to pursue claims
at a later date. Acceptance and/or payment of any invoice shall not be construed as acceptance by MBT of Supplier’s terms and conditions printed on
the invoice or attached to it.
4. Warranties. Supplier warrants that: (i) all Supplies shall conform to MBT’s quality particulars, shall be of satisfactory quality and fit for their
intended uses, and be free from all defects, apparent or hidden; (ii) Supplier shall comply with all applicable regulations and other legal requirements
pertaining to the Supplies, including, but not limited to, all applicable safety, environmental and export regulations of any local, state, or federal
jurisdiction in which MBT and Supplier operate; and (iii) services relating to the Supplies shall be performed with the highest care and skill, shall be in
accordance with all applicable statutory requirements, shall be of good quality and workmanship and shall be performed by properly qualified and
(a) Insurance Requirement. Supplier and any of its subcontractors shall procure and maintain at their sole cost and expense, until all of their
obligations are satisfied, including any warranty periods under any applicable Purchase Order, insurance against claims for injury to persons or
damage to property which may arise from or in connection with the performance of the work hereunder by the Supplier, its agents, representatives,
employees or subcontractors.
(b) No Limitation. Supplier is solely and exclusively responsible for and required to remedy all damage or loss to any property, including any property
of MBT, caused in whole or in part by Supplier, its subcontractors or anyone employed, directed or supervised by Supplier. The insurance requirements
set forth herein are minimum requirements and in no way limit the indemnity covenants contained herein. MBT in no way warrants that the minimum
limits contained herein are sufficient to protect Supplier from liabilities that might arise out of the performance under any Purchase Order by Supplier,
its agents, representatives, employees or subcontractors, and Supplier is free to purchase additional insurance.
(c) Minimum Scope and Limits. Supplier shall provide coverage with limits of liability not less than those stated below:
1. Commercial General Liability. Covering all operations, products, equipment with a combined single limit of $5,000,000.
2. Business Automobile Liability. This policy shall include coverage for loss due to bodily injury or death of any person, or property damage arising out
of the ownership, maintenance, operation or use of any motor vehicle whether owned, non-owned, hired or leased with a combined single limit of
3. Worker’s Compensation and Employer’s Liability. Worker’s Compensation limits as required by statute in the state(s) where work is performed and
as well Employer’s Liability covering all personnel performing work or services in connection with any Purchase Order in the amount of $1,000,000.
Such policy or policies shall include an alternate employer endorsement naming MBT, and its affiliated companies as alternate employers.
4. Contractor’s Pollution Liability. Covering liability for third party bodily injury, property damage, cleanup costs and defense costs arising from the
performance under any Purchase Order. At a minimum, the policy must contain the following coverage: (i) occurrence liability coverage; (ii) any
completed operations exposures; (iii) coverage for third-party liability damages, property damage, cleanup costs and contingent transportation
pollution liability – first and third party; (iv) coverage for disposal at any property not owned or operated by MBT, and/or its affiliated companies; and
(v) emergency response cost coverage, legal defense costs, including attorneys’ fees, expert witness fees and court costs.
(d) Additional Insured Requirements. The policies above, including commercial general liability, automobile liability, contractor’s pollution and
employment practices liability insurance policies, shall name MBT, and its affiliated companies and its and their respective directors, officers and
employees as additional insureds and shall include contractual liability coverage for the indemnity provisions contained in these Conditions. The
additional insured status shall apply to the full limits of liability purchased by Supplier even if those limits of liability are in excess of those required by
these Conditions. Supplier’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the
limits of the insurer’s liability. The policies shall not exclude claims made against the insured by additional insureds.
(e) Notice of Cancellation. Each insurance policy required by the insurance provisions of these Conditions shall provide the required coverage and
shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days prior written notice has been given to MBT.
Such notice shall be sent directly to addresses provided for in the Purchase Order, or as they may be changed by the parties from time to time, and
shall be sent by certified mail, return receipt requested.
(f) Acceptability of Insurers. Insurance is to be placed with duly licensed insurers with an “A.M. Best” rating of not less than A- VII. MBT in no way
warrants that the above-required minimum insurer rating is sufficient to protect Supplier from potential insurer insolvency.
(g) Verification of Coverage. Prior to performing any work under any Purchase Order and at least ten (10) days prior to the expiration of each
insurance policy, Supplier must furnish MBT with certificate(s) of insurance evidencing the required insurance coverage. Each certificate will include a
provision requiring the insurance carrier to provide directly to MBT (at the address listed on the Purchase Order), thirty (30) days advance written
notice before any termination, cancellation, or other material change to the policies shown on the certificate takes effect, regardless of whether such
action was initiated by Supplier, other insured or the insurance carrier. For avoidance of any doubt, a “material change” in the policy shall mean a
change that would result in Supplier being noncompliant with a material provision of these insurance requirements.
(i) Primacy of Coverage. The insurance coverage and limits required to be maintained by Supplier under these Conditions shall be primary to any
insurance coverage maintained by MBT, its affiliated companies and its and their respective directors, officers and employees which shall be excess
and non-contributory. All policies must include waivers of subrogation by the insurers in favor of MBT, its affiliated companies and its and their
respective directors, officers and employees. Supplier shall also require all of its subcontractors that it retains in connection with any Purchase Order
to adhere to the same insurance requirements as stated herein and agree in writing to waive any and all rights of subrogation that it may have
against MBT, its affiliated companies and its and their respective directors, officers and employees. Supplier policies of insurance shall all provide for
such waivers by endorsement or otherwise, and shall incorporate such waivers on all certificates of insurance.
6. Force Majeure. Either party’s default of its obligations under any Purchase Order or these Conditions shall be excused in the event, to the extent
and only during the period that same arises from or is incident to unforeseen causes beyond such party’s control not resulting from its fault or
negligence, including, but not limited to, strikes, lockouts, fires, embargoes, or other outbreak of hostilities, war, acts of terror, acts of federal, state
and municipal or other government or governmental agency, or by accident, machinery breakdowns occurring despite ordinary maintenance, delays of
carriers or suppliers, public emergency, acts of God, or any other cause beyond the reasonable control of the defaulting party.
7. Indemnity. Supplier shall indemnify, defend, save and hold harmless MBT, its officers, directors, owners, subsidiaries, affiliates, agents,
representatives, and employees (“Indemnitees”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court
costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (“Claims”) for bodily injury or personal injury (including death), or loss
or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of
Supplier or any of its owners, officers, directors, subsidiaries, affiliates, agents, employees or subcontractors. This indemnity includes any claim or
amount arising out of or recovered under the Workers’ Compensation Law or arising out of the failure of such contractor to conform to any federal,
state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitees shall, in all
instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitees, be indemnified by Supplier from and
against any and all claims. It is agreed that Supplier will be responsible for primary loss investigation, defense and judgment costs where this
indemnification is applicable. In consideration of the award of this contract, Supplier agrees to waive all rights of subrogation against MBT, its officers,
directors, owners, officials, agents, representatives, and employees for losses arising from the work performed by Supplier for MBT.
8. Restrictions. Supplier shall not, nor will it allow any of its employees, contractors, or other agents, to: (i) bring any cell phones, cameras, or other
similar devices onto MBT’s property; (ii) smoke on MBT’s property; or (iii) go anywhere on any MBT properties other than as required to deliver the
Supplies and to the designated lounge areas.
9. Arbitration. It is agreed between the parties that any controversy or claim between them arising out of, in connection with, or relating to the
enforcement, non-enforcement, interpretation, performance or breach of any Purchase Order or these Conditions shall be settled exclusively by
arbitration in Las Vegas, Nevada, before three arbitrators appointed by the American Arbitration Association pursuant to its standard procedures. The
arbitration shall be conducted pursuant to the Commercial Arbitration Rules in effect at the time any arbitration proceeding is commenced. The
arbitration award shall be final and binding on both parties and judgment upon such arbitration award may be entered in any court having jurisdiction.
10. General Terms.
(a) Entire Agreement. The Purchase Order and these Conditions are the entire agreement between the parties respecting the Supplies and when
accepted, supersede any prior agreements, negotiations or understandings of the parties respecting the Supplies, whether written or oral. No
modification shall be effective unless in writing and signed by MBT’s and Supplier’s authorized representatives.
(b) Non-Waiver. The failure of either party to strictly enforce any of these Conditions shall not be considered as a waiver of any right hereunder nor
shall it deprive that party of the right at some other time to insist upon strict adherence to that term or condition or to any other terms or conditions.
(c) Severability. If any section, subsection, sentence or clause of these Conditions shall be adjudged illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the legality, validity or enforceability of these Conditions as a whole or of any section, subsection,
sentence or clause hereof not so adjudged, and the remaining terms and provisions of these Conditions shall remain unimpaired and in full force and
(d) Governing Law and Jurisdiction. The validity, interpretation and performance hereunder shall be governed by and construed in accordance with
the laws of the State of Nevada without regard to the principles of conflicts of law. All actions arising from the Purchase Order or these Conditions shall
be brought in a court of competent subject matter jurisdiction in the State of Nevada, and each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of Nevada and the United States District Court for the District of Nevada for the purpose of any suit,
action, proceeding or judgment relating to or arising out of the Purchase Order or these Conditions and the transactions contemplated thereby.
(e) Expenses. In the event of any litigation between the parties hereto relating to or arising out of the Purchase Order or these Conditions or the
transactions contemplated thereby, the prevailing party in such litigation shall be entitled to be reimbursed by the other party to such litigation for all
of the prevailing party’s reasonable expenses, including fees and disbursements of counsel, incurred in connection with such litigation
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