Terms and Conditions for Purchase Orders

The material, supplies, or services covered by this order shall be furnished by Seller subject to all the terms and conditions set forth in this order including those set forth in the following paragraphs.  Seller, in accepting this order agrees to be bound by and to comply with all of such terms and conditions and no other terms or conditions shall be binding upon the parties.  Shipment of all or any portion of the materials or supplies or the performance of all or any portion of the services covered by this order shall constitute unqualified acceptance of all its terms and conditions.  The terms of any proposal referred to in this order are included and made a part of the order only to the extent of specifying the nature of the materials, supplies or services ordered, the price therefore, and the delivery thereof and then only to the extent that such terms are consistent with the terms and conditions of this order.  This order shall constitute an integrated agreement and may not be modified except in writing signed by both parties or as otherwise expressly provided herein. As used in these terms and conditions the word “Seller” includes Seller and his sub-suppliers at any level.

COMPLIANCE WITH TERMS AND CONDITIONS – Materials, supplies or services furnished shall be exactly as specified in this order, free of all defects in Seller’s design, workmanship, or materials.  All items shall be free of liens and encumbrances.  If materials, supplies, or services are found to be defective or not as specified, Santa Margarita Water District (hereinafter referred to as SMWD) may reject them, require Seller to correct them without charge, or require delivery of such materials, supplies, or services at a reduction in price which is equitable under the circumstances.  If Seller is unable or refuses to correct such items within a time deemed reasonable by SMWD, SMWD may terminate the order in whole or in part.  Seller shall bear all costs incident to the rejection of materials, supplies or services which shall be in addition to any costs for which Seller may become liable to SMWD under other provisions of this order.  Seller shall reimburse SMWD for all transportation cost paid on rejected items and all advance payments made to Seller for unaccepted materials, supplies and services.  Notwithstanding final acceptance or payment by SMWD, Seller shall be liable for latent defects, fraud or such gross mistakes, and for all damages. Proximately caused by breach of any of the foregoing warranties, including incidental damages.

CHANGES – SMWD may make changes within the general scope of this order in (a) drawings or specifications for specially manufactured supplies, (b) place or delivery, or (c) method of shipment or packing of the order, by giving notice to Seller and subsequently confirming such changes in writing.  If any such changes affect the cost to Seller or the time required for performance of this order, an equitable adjustment in the price or delivery charges or both shall be made.  No change shall be made without the prior written approval of SMWD.  Unless waived by SMWD any claim of Seller for an adjustment under this paragraph must be made in writing thirty (30) days from the date of receipt by Seller or written notification of such change.  Nothing in this paragraph shall excuse Seller from filling any order as changed.

COMPLIANCE WITH LAW/ STANDARD OF CARE -- Seller shall comply with all applicable laws and regulations of the federal, state and local government.  Seller shall obtain and maintain all permits required of Seller by Federal, State and local regulatory agencies.  Seller is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of his or her activities and/or delivery. The Seller shall perform services in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession practicing under similar conditions. Seller is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Work is being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Seller agrees to fully comply with such Prevailing Wage Laws, if applicable. Seller shall defend, indemnify and hold the District, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

TERMINATION – SMWD may by written notice to Seller and for its own convenience cancel this order, either in whole or in part at any time.  In the event of such cancellation SMWD shall pay Seller as full compensation for all materials, supplies or service furnished prior to the date of such termination:

  1. The unit or prorated order price for the delivered and accepted portion.
  2. A reasonable amount not otherwise recoverable from other sources by Seller as approved by SMWD with respect to the undelivered materials, supplies or services.  For causes beyond the control and without the fault or negligence of Seller and upon application in writing by Seller, SMWD may extend the time for completion of the work called for by this order.  If SMWD has caused delay of the time of delivery or mistake of price, the order shall be subject to change as provided herein.  In event of delay caused by SMWD the Seller’s remedy shall be limited to money actually and necessarily expended in the work during the period of delay and which was expended solely by reason of the delay.  No allowance will be made for anticipated profits.

Alternatively, SMWD may with written notice terminate this order in whole or in part for Seller’s default.  Seller shall be in default if Seller (a) refuses or fails to comply with the provisions of this order, (b) fails to make progress and endangers performance and does not cure such failure within a reasonable period of time, or (c) fails to make deliveries of the materials or supplies or perform the services within the time specified herein or in any written extension thereof.  In the event of termination, SMWD may purchase or otherwise secure materials, supplies or services and Seller shall be liable to SMWD for its excess costs.  If after notice of termination for default, SMWD determines that Seller was not in default or that the failure to perform this order is due to causes beyond the control and without the fault of negligence of Seller including but not restricted to acts of God, or of the public enemy, acts of SMWD, acts of government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather and delays of a subcontractor or supplier due to such causes and without the fault or negligence of the subcontractor or supplier SMWD may at its option reinstate this order.  The rights and remedies of SMWD provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.

TITLE – Title to the material or supplies purchased hereunder shall pass from Seller to SMWD at the F.O.B. point shown in this order and shall be subject to SMWD’s right to reject upon inspection.

PAYMENT, EXTRA CHARGES AND DRAFTS – Seller shall be paid, upon submission of acceptable invoices, which include SMWD’s Purchase Order Number, for materials or supplies delivered and accepted or services rendered and accepted.  SMWD will not pay cartage, shipping, packing or boxing expenses, unless specified in this order.  Drafts will not be honored.  Invoices must be accompanied by transportation receipts, or unaccepted portion of this order, provided compensation hereunder shall not exceed the total order price.  SMWD will not be responsible for any goods delivered without purchase orders.  Seller must send a separate invoice for each purchase order number.  Seller shall not deliver invoices to any employee of SMWD.  They shall be mailed to SMWD. 

WARRANTY – Seller agrees that the materials, supplies or services furnished under this order shall be covered by the most favorable commercial warranties the Seller gives to any customer for the same or substantially similar materials, supplies or services.  The rights and remedies so provided are in addition to and do not limit any rights afforded to SMWD by law or this order.

DECLARED VALUE OF SHIPMENTS – Except as otherwise provided in this order all shipments by Seller for SMWD’s account shall be made at the maximum declared value applicable to the lowest transportation rate or classification and the bill of lading shall so note.

ASSIGNMENT – This order is not assignable by Seller without written approval of SMWD.

INSURANCE/ INDEMNITY – Seller shall comply with SMWD’s insurance requirements for Sellers and shall provide proof of compliance upon SMWD’s request.  Seller shall indemnify and hold harmless SMWD, its directors, officers, agents and employees  from  and against any and all claims, liabilities, expenses or damages, including reasonable attorneys’ fees, for injury or death of any person, or damage to property, or interference with use of property, or any claim of the Seller or a subcontractor for wages or benefits which arise in connection with the performance of this order, except to the extent caused or resulting from the negligence or willful misconduct of SMWD.  The foregoing indemnity includes, but is not limited to, the cost of prosecuting or defending such action with legal counsel acceptable to SMWD and SMWD’s attorneys’ fees incurred in such an action.

TAXES – Unless otherwise required by law or provided herein, Seller assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on or with respect to, or measured by the article sold or material or work furnished hereunder on the wages, salaries or other remunerations paid to persons employed in connection with performance of this order

PATENT INDEMNITY – Seller agrees to indemnify SMWD its officers and employees against liability of any kind including attorney’s fees, costs and expenses incurred for the use of any invention or discovery or for the infringement of any letters patent occurring in the performance of this order or arising by reason of the use or disposal by or for the account of SMWD of items manufactured or supplied under this order. 

LAW/ VENUE -- This purchase order shall be interpreted in accordance with the laws of the State of California.  If any action is brought to interpret or enforce any term of this purchase order, the action shall be brought in a state or federal court situated in the County of Orange, State of California.

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