GENERAL TERMS AND CONDITIONS
Last Updated: 6/8/2022
Definitions and Scope
These General Terms and Conditions (“Terms and Conditions”) provide the general terms under which you, an individual or entity (“you” or “Vendor”), agree to provide retail merchandise, equipment, raw goods or materials and/or other products (collectively, “Products”) and/or provide delivery, maintenance, construction, remediation or any other services (collectively, “Services”) to Refuel Operating Company, LLC (collectively with its parents and affiliates, the “Company”). For purposes of these Terms and Conditions, an “Affiliate” of any subject person, company or entity shall be deemed to mean any other person, company or entity that controls, is controlled by, or is under common control with such subject person, company or entity. These Terms and Conditions may be updated may be updated by us from time to time without notice to you.
Form and Entirety of Agreement
These Terms and Conditions are part of a “vendor packet” provided to and returned by you and utilized by the Company in connection with your engagement, or potential engagement, for the provision of Products and/or Services to the Company. The Vendor Packet includes multiple sections that may or may not be applicable to you, based on the scope of your engagement, including, “Insurance Requirements” (applicable to all Vendors), “Merchandise Terms and Conditions” (applicable only to Vendors providing Products for resale to the end consumer) and “Service Terms and Conditions” (applicable only to Vendors providing maintenance, construction or other on-location services) and may also include one or more project, Product or Service specific addenda (each an “Addendum”) setting forth further commercial terms or performance obligations that are specific to your engagement. As used herein, the term “Vendor Packet” is understood to include all such sections and Addenda (unless inapplicable to your engagement); and that Vendor Packet comprises the entire agreement between you and the Company for the provision of Products and Services to the Company and supersedes all prior oral or written agreements, arrangements or understandings. The Vendor Packet may be executed in several counterparts, all of which are identical, and all of which counterparts together shall constitute one and the same instrument. Copies of original signatures sent by facsimile, portable document format (.pdf), or other electronic imaging means shall be deemed to be originals for all purposes. In the event of any conflict between these Terms and Conditions, or any other general terms and conditions set forth in the Vendor Packet, on the one hand, and any specifically agreed upon provisions set forth in any Addendum, the provisions set forth in the Addendum shall control. No Addendum shall be deemed effective or incorporated as a part of the Vendor Packet unless signed both by you and an authorized Company representative.
The undersigned Vendor hereby represents as follows:
a). Vendor, if a partnership, corporation, limited liability company, or other legal entity, (i) is duly formed, validly existing and in good standing under the laws of its state of organization or formation and is duly qualified and licensed to do business in each jurisdiction in which Products will be sold or Services will be provided; (ii) is the primary operating company, as between itself and any parent companies, engaged in the provision of Products and Services of the type to be provided to the Company; (iii) is adequately capitalized and (iv) owns (or owns a majority of the stock or other equity interests of subsidiaries which themselves own) substantially all of the assets it utilizes in the conduct of its business (with the exception of assets rented, leased from, or subject to mortgage or deed of trust to, any party other than an Affiliate);
b). The information provided by Vendor (or its representatives) to the Company in the Vendor Packet is complete and accurate in all material respects; and
c). Vendor is duly authorized to offer the provision of Products and/or Services on the terms contemplated by the Vendor Packet, and the individual executing and delivering the Vendor Packet is duly authorized to execute and deliver the same to the Company.
Unless specified in any applicable Addendum, payment for Products and Services will be made thirty (30) days after receipt of invoice. All invoices, or other form of billing, are due within ninety (90) days after completion of Services or may be forever barred.
Vendor agrees to carry, at all times during which Products are sold or Services are provided to the Company, insurance meeting the Company’s minimum coverage limits and policy endorsements (including Additional Insured and Waiver of Subrogation endorsements) and to provide a certificate meeting the Company’s insurance requirements, as the same may be amended or modified from time to time. Vendor acknowledges receipt of the Company’s current insurance requirements of the Vendor Packet and agrees to give Company thirty (30) days advance notice of cancellation, non-renewal or material change to any policy. The Company reserves the right to withhold payment for any Products/Services sold or provided during the pendency of any lapse or non-renewal of any policy, coverage or endorsement required to be maintained in accordance with the above-referenced requirements (or any failure to provide a current certificate evidencing same), until such deficiency is remedied by Vendor.
Vendor is, and shall remain at all times, an independent contractor of the Company. Vendor hereby acknowledges and agrees that (i) unless set forth in an applicable Addendum, nothing in this Vendor Packet shall obligate the Company, in any manner or for any period or term, to engage Vendor to perform any Services or to purchase any quantity of Products and (ii) any Services provided by Vendor pursuant to any such engagement, or Products sold by Vendor to any Company, shall be in Vendor’s capacity as an independent contractor, and not as an employee, partner, agent of, or joint venturer with the Company for any purpose. No purchase order, service engagement, statement of work or communication between Company personnel and Vendor shall be deemed to create any contractual or other legal relationship, between Vendor, on the one hand, and Company, on the other. The Company shall not be responsible for withholding taxes with respect to any compensation received for services rendered hereunder. The Vendor shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
The Company shall give Vendor such tax resale certificate numbers as are appropriate to be exempt on the purchase of any Products for resale. Vendor shall not be obligated to pay sales or use tax on products that are purchased for consumption by the Company. Vendor agrees to list and identify all taxes charged to the Company as separate line items on Vendor’s invoices.
Compliance with Law
Vendor will fully comply with any and all federal, state, and local laws including, but not limited to, ordinances, orders, rules, taxing requirements and regulations and all laws including, but not limited to, those laws relating to equal opportunity, affirmative action, clean air and water, environmental law, toxic or hazardous materials, occupational health and safety. Vendor shall obtain all permits, licenses and approvals necessary for the sale of any Products or the provision of any Services to the Company.
Vendor acknowledges that it may be provided access to and become acquainted with various trade secrets, processes, information, records and specifications owned or licensed by the Company and/or used by the Company in connection with the operation of its business. Vendor agrees that it will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the course of its provision of Products or Services, or at any time thereafter, except as required by law. All files, records, documents, blueprints, specifications, information, letters, notes and similar items relating to the business of the Company, whether prepared by Vendor or otherwise coming into its possession, shall remain the exclusive property of the Company. Vendor shall not retain any copies of the foregoing without the Company’s prior written permission. If at any time requested by the Company, Vendor shall immediately deliver to the Company all such files, records, documents, specifications, information, and other items in its possession or under its control. Vendor further agrees that it will not make any public announcement or otherwise disclose its approval as an authorized or approved Vendor of the Company to any person without the prior written consent of the Company and shall at all times preserve the confidential nature of its relationship to the Company and of the services hereunder.
Non-Conforming Products and Offsetting
In the event any Products sold to the Company are damaged, defective or non-conforming, the Company may return such goods to Vendor for full credit of the purchase price. Such refund may be in the form of an offset or credit against other payments owed by the Company to Vendor. If, at any time, Vendor has a debit balance with the Company, the amount owed the Company may be deducted from future remittances at the Company’s option and any such deduction shall be deemed to be payment by the Company for all purposes including, without limitation, entitlement to cash discounts. The Company may pursue collection when necessary and Vendor shall pay all costs of collection including, without limitation, attorneys’ fees and court costs. The Company may transfer debit balances to other Company divisions with outstanding credit balances.
Vendor hereby warrants that any Products sold to the Company (as of the date hereof and as of the date of any sale or delivery) (i) conform to the descriptions provided by the Vendor, (ii) are of good design, material and workmanship, free of defects, merchantable, and fit for the purpose for which the Products are intended, (iii) are produced and furnished in compliance with all Federal, State or Local laws, regulations or ordinances, including, without limitation, the Federal Fair Labor Standards Act and any provisions related to health, safety, labeling, flammability, or price discrimination (iv) are not misbranded hazardous substances or banned hazardous substances within the meaning of the Federal Child Protection and Toy Safety Act, (v) are not in a misbranded package within the meaning of that term in the Federal Hazardous Substance Labeling Act, (vi) will be placed in packages that reflect true net weight, measure, contents, size and, if applicable, country of origin, pursuant to applicable Federal and State requirements, (vii) are properly labeled as to contents as required by applicable regulations of the Federal Trade Commission, and (viii) if applicable, comply with all requirements, including testing and certification, of the Consumer Product Safety Commission.
Vendor shall transfer good and marketable title to the Products to the Company free and clear of all liens, claims, encumbrances, and/or charges. If requested by the Company, Vendor shall execute and deliver to the Company an affidavit stating that Vendor has paid in full for all labor, materials, rental or equipment, transportation and all other charges in connection with Products delivered, services rendered and/or work performed under these Terms and Conditions for the period covered by such payment. In addition, waivers and releases of lien from all subcontractors and material men shall be furnished by the Vendor before payment is made, if requested by the Company.
In the event any discounts, rebates, agreed-upon pricing or other economic incentives have been offered by you as an incentive to purchase your Products, Company shall have the right, after advance written request and at reasonable times during normal business hours, to conduct a price-verification audit on all Products purchased from you. An advance 7-day written notification by Company to you is required for an onsite audit. The period for which prices may be verified may not exceed the immediately preceding 24-month period.
Vendor shall conduct itself in a professional and business-like manner at all times while performing its obligations in connection with the provision of Products and/or Services. Vendor shall act in accordance with and adhere to the Refuel Code of Ethics provided to Vendor in the Company’s “Vendor Packet. The offer or acceptance of gifts, entertainment, or other special favors to or from any Company personnel, is not permissible. Courtesies of nominal value, appropriate product samples and social invitations readily deemed to be customary and proper under the circumstances are acceptable, provided they imply no business obligation whatsoever nor involve significant or out of the ordinary expenses.
Vendor is not aware of any relationship or affiliation between itself, or its owners, principals and employees, on the one hand, and Company or its directors, officers or employees charges with any procurement function, on the other and no gift or gratuity or any promise of gift or gratuity, has been given, offered, or made directly or indirectly to, or for the benefit of, any employee or agent of Company for the purpose of influencing the selection of Vendor.
In the event of any proceedings by or against Vendor, voluntary or involuntary, in bankruptcy or insolvency, or for the appointment of a receiver or trustee, or an assignee for the benefit of creditor, of the property of Vendor, or in the event of a breach by Vendor of any of the conditions of these Terms and Conditions (or any agreement into which they are specifically incorporated), including any warrnties made herein, the Company shall have the right to immediately terminate without penalty, any and all minimum Product purchase and/or Service orders and any or all other orders or agreements between Vendor and Company and/or to reduce the quantities to be purchased hereunder.
Either party shall be excused for delays and failures to perform for a period equal to the length of any Force Majeure Delay; provided, that a Force Majeure Delay shall not delay a party’s performance if it fails to use all reasonable efforts and diligence to mitigate the occurrence or duration of the Force Majeure Delay. “Force Majeure Delay” shall mean delay to the extent caused by acts of God; acts of a public enemy; fire; civil disturbances; mudslides, landslides, fire or other casualty; strikes, work stoppages, extraordinary weather conditions, and moratoriums, governmental delays and other such factors which are beyond the reasonable control of either party (financial inability excepted). Notwithstanding the foregoing, a Force Majeure Delay shall not be deemed to have commenced until the date upon which notice of the occurrence of such event is given by the party claiming the delay to the other party, or, immediately after the Force Majeure Delay if notice was otherwise impossible during such time.
All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective (i) upon receipt if delivered in person, (ii) one (1) day after deposit, prepaid with a nationally recognized overnight delivery service, or (iii) three (3) days after deposit in United States mail (certified, postage prepaid, return receipt requested). Notices from Vendor to the Company shall be addressed as follows:
Refuel Operating Company, LLC
4105 Faber Place Dr Suite 300
North Charleston, South Carolina 29405
Attention: Travis Smith, Chief Development Officer
Choice of Law/Venue
The laws of the state of South Carolina, without reference to its choice of law rules, shall govern the provision of any Products or Services by Vendor to the Company, the validity of these Terms and Conditions and the construction of the terms hereunder, and the interpretation of the rights and duties of the parties under any ancillary Product or Service order or agreement. Vendor consents and submits to the jurisdiction and venue of the state and federal courts located in Charleston County, South Carolina for any dispute relating to the provision of Products and/or Services or the terms, interpretation or performance of these Terms and Conditions.
Any failure or partial failure of Company to enforce any of the terms and provisions of the Vendor Packet, whatsoever, or to exercise any right thereunder, or any acceptance by Company of any performance of an obligation of Vendor hereunder which is less than or other than the express terms of same, shall under no circumstances constitute a waiver of any required performance of Vendor of any of the terms herein or therein, nor shall it extinguish any right or claim of Company, nor shall it be considered a change in practice, or a new “course of dealing”, or an intent to agree to or create new terms with respect to any other performances in the future required by Vendor, and Vendor waives any and all such claims for modification or waiver of any such provision by such action or “course of dealing.” If any provision of these Terms and Conditions or the Vendor Packet, or any portion thereof, is held to be invalid and unenforceable, then the remainder thereof shall nevertheless remain in full force and effect. The terms and provisions set forth in the Vendor Packet will not be construed more or less favorably between the parties by reason of authorship or origin of language.
No Waiver of Representation or Warranty
Vendor agrees that the Company’s rights under this Agreement shall not be waived by any knowledge by the Company regarding any untruth or inaccuracy of any representation or warranty given by Contractor hereunder.
Upon written notice to Vendor, Company may assign its benefits and obligations under the Vendor Packet to an Affiliate. Otherwise, the rights and obligations set forth in the Vendor Packet shall not be assignable otherwise than by operation of law by any party without the prior written consent of the other party, and any purported assignment by any party without the prior written consent of the other shall be void; provided that the Company may, without Vendor’s consent but upon 15 days’ notice to Vendor, assign its rights and obligations set forth in the Vendor Packet in connection with a merger or sale of substantially all of the Company’s assets or stock.
No media releases, public announcements, or public disclosures may be made by either party with respect to this Agreement or the subject matter of this Agreement, including without limitation, promotional or marketing material, but not including announcements intended solely for internal distribution or to meet legal or regulatory requirements beyond the reasonable control of the disclosing party, unless both parties hereto shall so consent in writing.
VENDOR AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES AND AGENTS (REFERRED TO COLLECTIVELY AS THE “INDEMNIFIED PARTIES”), AND EACH OF THEM FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, ACTIONS, LIABILITIES, AND/OR ACTIONS ASSERTED BY ANY PERSON, INDIVIDUALLY OR THROUGH ANY REPRESENTATIVE, INCLUDING ALL COSTS, ATTORNEY’S FEES, SETTLEMENT FUNDS, DAMAGES OR EXPENSES RESULTING OR ALLEGEDLY RESULTING OR ARISING FROM (I) LIABILITY OF ANY NATURE OR KIND FOR OR ON ACCOUNT OF ANY ALLEGATION OR FINDING OF A VIOLATION OF ANY PATENT, TRADEMARK, COPYRIGHT, OR CONTRACTUAL OR OTHER RIGHTS OF ANY THIRD PARTY ARISING FROM THE PURCHASE, USE, OR SALE BY THE COMPANY OF ANY PRODUCTS; (II) ANY ALLEGATION OR FINDING OF ANY BREACH OF ANY REPRESENTATION, WARRANTY, GUARANTEE, COVENANT OR CERTIFICATION TO THE COMPANY, UNDER THESE TERMS AND CONDITIONS OR UNDER ANY ANCILLARY AGREEMENT, OR IN ANY WAY PERTAINING TO, OR IN CONNECTION WITH, THE MANUFACTURE, PRODUCTION, OR SALE OF ANY PRODUCTS TO OR BY THE COMPANY, OR FROM ANY CONSUMER COMPLAINT, CLAIM, OR LEGAL ACTION WHATSOEVER, ALLEGING DAMAGES, DEATH, ILLNESS, OR INJURY OR RESULTING FROM THE PURCHASE OR USE OF ANY OF THE PRODUCTS WHETHER FORESEEN OR UNFORESEEN; AND (III) ANY CLAIM BROUGHT AGAINST THE COMPANY ARISING OUT OF ANY SERVICES PROVIDED, OR ACTIONS OR OMISSIONS BY VENDOR OR ITS CONTRACTORS OR AGENTS IN THE COURSE OF DELIVERING ANY PRODUCTS, UPON PREMISES OWNED LEASED OR OPERATED BY THE COMPANY, REGARDLESS IF SUCH CLAIM BE BROUGHT BY VENDOR’S EMPLOYEES, CONTRACTORS, AGENTS OR THIRD PARTIES, SPECIFICALLY INCLUDING THOSE LIABILITIES DESCRIBED IN SUBPARAGRAPH (III) CAUSED BY, OR ARISING FROM, THE CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE OF THE INDEMNIFIED PARTY, BUT EXCLUDING THOSE LIABILITIES DETERMINED IN THE FINAL JUDGMENT OF A COURT TO HAVE BEEN PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTY.