For purposes of this Purchase Order, the term "Service Supplier" shall include the provider of any real estate development or construction related services or materials to McDonald's for which a purchase order is issued. This Purchase Order includes and incorporates by reference all terms and conditions of the Master Contract for Professional Services, the Master Contract for Environmental Site Assessment Services, the Master Contract for Civil Engineering and Surveying Services, , and Supplemental Agreement to the Master Construction Contract or such other Construction Contract(s) or Construction Management Agreement McDonald's has entered into to provide services and/or furnish materials or such other contract(s) Service Supplier has entered into with McDonald's to provide services, including without limitation, any Master Supplement to any of these agreements ("Master Contract") relative to the site identified in this Purchase Order by and between McDonald's as Agent under such Master Contract, and the Service Supplier under such Master Contract(s). In the event of a conflict or discrepancy between the terms of this Purchase Order and those of the Master Contract, with the exception of the payment terms and conditions which are specifically set out in this Purchase Order, the terms and conditions of the Master Contract shall control. Where Service Supplier has also submitted an electronic offer to perform the services referenced herein (the "Service Supplier Proposal"), the terms and conditions of which are incorporated into this Purchase Order by reference.
The provisions of this Purchase Order shall also be applicable to services and/or labor to be performed by Service Supplier where there is no previously existing Master Contract or other agreement between the parties.
The issuance and delivery of this Purchaser Order constitutes McDonald's acceptance of the Service Supplier Proposal pursuant to the terms and conditions contained below. McDonald's expressly rejects any modification or change of any terms and conditions in the Service Supplier Proposal or this Purchase Order by Service Supplier, and any such modification or change shall be considered ineffective and not binding on McDonald's. In the event of a conflict or discrepancy between the terms of this Purchase Order and those of the Service Supplier Proposal where there is no previously existing Master Contract, the conditions and stipulations of this Purchase Order shall control. The Master Contract, if any, the Service Supplier Proposal and this Purchaser Order shall be referred to, collectively, as the "Contract". Service Supplier expressly acknowledges and agrees that upon the issuance and delivery of this Purchase Order the Contract is effective.
1. Permits and Approvals: Service Supplier shall be properly licensed and to the extent necessary, obtain all permits, approvals, and certificates necessary to perform the work described in the Service Supplier Proposal and this Purchase Order.
2. Codes and Regulations: All work performed and materials furnished shall be in compliance with all applicable codes, statutes, laws, rules, regulations, ordinances, or governmental interpretations including, but not limited to, Occupational Safety and Health Association ("OSHA"), the Americans with Disabilities Act ("ADA") and Americans with Disabilities Act Guidelines ("ADAAG"), collectively ("Legal Requirements") and without use of asbestos, asbestos-containing materials, or other hazardous materials as defined from time to time by applicable federal, state or local laws, rules, and regulations.
3. Service Supplier's Insurance: Service Supplier shall not commence work unless Service Supplier has insurance with companies having a financial rating of at least category A- VIII in Best's Insurance Reports. Such insurance must insure McDonald's Corporation, McDonald's USA, LLC, any parent, subsidiaries and affiliates, the McDonald's franchisees and any landlord if applicable with coverages listed below. Such insurance shall be primary insurance for all such insureds.
A. Worker's Compensation Insurance in accordance with the statutory requirements, including Employer's Liability Insurance with limits not less than $1,000,000.00 each accident.
B. Commercial General Liability Insurance including Products/Completed Operations coverage, with Bodily Injury and Property Damage limits of $1,000,000.00 per occurrence/$5,000,000.00 general aggregate, including coverage for advertising and personal injury limits of $1,000,000.00 per person or organization. This insurance shall include contractual liability.
C. Commercial Automobile Liability Insurance, including owned, non-owned, and hired vehicles, with combined limits not less than $1,000,000.00 per accident
D. Professional Liability Insurance with a limit of at least $1,000,000.00 per occurrence. Such coverage shall be maintained through completion of the work contemplated herein, and for a period of three (3) years after completion of the work.
E. In addition to the above, the Service Supplier shall also satisfy any insurance requirements required by any governmental authority.
F. If not previously provided to McDonald's pursuant to the Master Contract, Service Supplier shall deliver to McDonald's certificate(s), the form of which shall be acceptable to McDonald's, evidencing such insurance coverage(s) upon receipt of this Purchase Order, and immediately upon any renewal of such insurance policies, and at any time upon request by McDonald's. Service Supplier shall deliver insurance certificates as required herein for each project Service Supplier provides services to McDonald's.
4. Changes in Service Supplier's Work: No additional, new or extra work or change in the scope of work shall be commenced by Service Supplier without submission of a new or revised Service Supplier Proposal and the issuance by McDonald's of a new or revised Purchase Order setting forth the cost of or credit for the extra work or change that has been agreed to by the parties.
5. Indemnity: Service Supplier agrees to indemnify, defend and save McDonald's, McDonald's Corporation, any parent, subsidiaries and affiliates, the McDonald's franchisees and any landlord if applicable ("Indemnitees") harmless from any and all liability, loss, damage, cost, and expense, including court costs and attorney's fees (whether or not litigation is commenced) of whatever nature or type, that the Indemnitees may suffer by reason of any injury or damage sustained, or purported to have been sustained, by any person or thing as a result of the work performed by Service Supplier or associated with such work.
6. Guarantee: Service Supplier guarantees to use quality materials and to perform the work in accordance with the best practice of high quality, first class Service Suppliers in a first class workmanlike manner and guarantees all work against defects in material or workmanship for a period of one (1) year, or such longer period of time as may be required by any contract pertaining to the work contemplated herein, the Master Contract, if any, or by the manufacturer or other third party, from the date of from completion to McDonald's satisfaction. Within thirty (30) days after written notice, Service Supplier shall remedy and repair any defects in materials or workmanship, including any incidental and consequential damage, without expense to McDonald's.
7. Liens: Service Supplier will not allow any liens, of any nature, to encumber the real estate. In the event McDonald's receives a notice of claim of lien due to the work performed, Service Supplier will act in the best interest of McDonald's and shall promptly remove the lien or defend the claim and post an appropriate bond, if requested by McDonald's. Additionally, Service Supplier will deliver to McDonald's such partial and/or final waivers of lien as may be requested by McDonald's.
8. Electrical Certification: In the event the work involves the electrical system in any way, then in such event, upon completion of the electrical wiring, the electrical Service Supplier shall include in their work product, complete, or cause to be completed, the McDonald's Electrician checklist and visual guide for POS, a copy of which has been received by Service Supplier, if applicable, and shall deliver a fully executed original Electrical Certification (on McDonald's Form properly signed by both the Service Supplier and electrician. In the event that Service Supplier has not received the Electrician checklist and visual guide for POS, Service Supplier shall obtain the guide from McDonald's. Any changes made to the electrical system after the certification process has been completed shall require system re-certification.
9. Requests for Payment: Upon completion of the work to McDonald's satisfaction, Service Supplier shall submit a payment request including an invoice and if requested, completed contractor's sworn statement, partial lien waivers, if required by McDonald's, final lien waivers, and such other documentation required by, and in a form approved by McDonald's. Payment will be made within 30 days of receipt of Service Supplier's payment request with required documentation.
10. Confidentiality and Ownership of Work: Service Supplier acknowledges that it may learn of and have access to confidential information of McDonald's in connection with the solicitation, preparation and submission of the Service Supplier Proposal and/or its performance of the services described in this Purchase Order. "Confidential Information" means any and all information, materials, data, ideas and documents (whether or not specifically labeled or identified as "confidential"), in any form or medium (whether in oral, written, electronic, graphic or other form), that are disclosed to, or developed or learned by, or that becomes known to, Service Supplier or any of its employees in connection with this Contract, and/or that relates to the business, operations, products, services, know how, policies, procedures, strategies, promotions, research, financial information, plans, equipment, specifications, construction methods or means, or developments of McDonald's or McDonald's franchisees.
Service Supplier agrees that during the term of this Contract and at all times thereafter, Service Supplier shall not use, and shall require its employees not to use, Confidential Information for any purpose other than to fulfill Service Supplier's obligations under this Contract. Service Supplier further agrees that during the term of this Contract and at all times thereafter, Service Supplier shall not disclose, and Service Supplier shall require its employees not to disclose, any Confidential Information to any third party other than to their employees, agents or representatives who have a need to know and have agreed to maintain the confidentiality of same. Service Supplier acknowledges and agrees that any threatened or existing breach of this confidentiality provision would cause McDonald's irreparable injury for which it would have no adequate remedy at law. In each such case, Service Supplier acknowledges and agrees that McDonald's shall be entitled to immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to McDonald's.
Service Supplier agrees that all developments, improvements, updates, derivative works, inventions, innovations, discoveries, ideas, techniques, products, processes, modifications, alterations, changes, enhancements, adaptations, and concepts (collectively, "Developments") created, produced, designed or developed by Service Supplier or Service Supplier's agents or employees in response to the Contract shall be the exclusive property of McDonald's, and all Developments protectable under United States copyright law shall be owned by McDonald's as "works made for hire" as defined in Section 101 of the United States Copyright Act. If and to the extent that any or all of such Developments are not deemed to be a work made for hire, Service Supplier assigns to McDonald's all right, title, and interest in and to the world-wide copyrights in such Developments.
11. Miscellaneous Provisions:
A. Service Supplier will not assign this Contract without the express written consent of McDonald's.
B. No right or remedy conferred upon or reserved to McDonald's is intended to be exclusive of any other right or remedy allowed by law or this Contract, but each shall be cumulative and in addition to every other right or remedy given in this Contract or now or hereafter existing at law or in equity or by statute.
C. Where the work involves remodeling, repair, modification or other work while the restaurant remains open for business, Service Supplier shall schedule and perform the work in such a manner so as not to disrupt the operation of the McDonald's restaurant on the premises and shall coordinate with McDonald's so there will be no interference with restaurant operations during peak business times.
D. Hot Work. Where the work involves the use of flame, spark or hot ember producing equipment, such as but not limited to, welding, blow torch and metal grinding type equipment and equipment using internal combustion engines ("Hot Work"), McDonald's Hot Work safety procedures, a copy of which has been received by Service Supplier, must be followed. In the event that Service Supplier has not received the McDonald's Hot Work safety procedures, Service Supplier shall obtain the procedures from McDonald's.
E. Service Supplier further agrees to protect the work from damage or injury of any kind, and Service Supplier will be solely responsible for all work until final acceptance of the completed work by McDonald's.
F. If, in McDonald's sole opinion, Service Supplier should refuse or fail to prosecute the work diligently or properly or to supply enough properly skilled workmen or proper materials, or is otherwise in breach of any of the terms, conditions and stipulations of the Contract, after receiving five (5) calendar days written notice of such deficiencies, then McDonald's may terminate this Contract and finish the work by whatever method it may deem expedient and McDonald's shall have all remedies available at law or in equity for Service Supplier's failure to perform.
G. All notices, demands or other writing in this Contract provided to be given, made or sent by either party to the
other shall be in writing and shall be deemed to have been fully given, made or sent when deposited in the United States Mail certified or registered and postage prepaid and addressed as follows: To McDonald's - McDONALD'S USA, LLC, One McDonald's Plaza, Oak Brook, Illinois 60523, Attention: US Legal, and to Service Supplier at the address for Service Supplier set forth herein.
H. This Contract shall be governed by the internal laws of the State of Illinois. Service Supplier submits to the jurisdiction and venue of the United States District Court for the Northern District of Illinois (Eastern Division) and the Circuit Court of DuPage County of Illinois in connection with all suits, actions, proceedings or other disputes relating to this Contract, provided, however, mechanics lien foreclosure actions shall take place in the county where the site is located. Should either party employ an attorney or attorneys to enforce any of the provisions of this Contract or to recover damages for the breach of this Contract, the non-prevailing party shall pay to the prevailing party all reasonable costs, damages and expenses, including attorney's fees, expended or incurred in connection therewith, and any judgment entered in such enforcement action shall include such amount as a specific line item.
I. Service Supplier acknowledges and agrees that all costs and expenses relative to the performance of the work contemplated herein are included unless expressly exclude or specifically enumerated as reimbursable items, with respective costs or charges, and accepted by McDonald's by inclusion in this Purchase Order.
J. Service Supplier acknowledges and agrees that the time for performance shall commence upon the later of the date of issuance of this Purchase Order by McDonald's or the date stated in the Service Supplier Proposal and the time for completion of the work and services shall be as stated therein.
12. Anti-Terrorism Representation and Warranty: McDonald's and Service Supplier each represent and warrant that neither they nor the officers and directors controlling McDonald's and Service Supplier, respectively, are acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by the United States Treasury Department as a Specially Designated National and Blocked Person, or for or on behalf of any person, group, entity, or nation designated in Presidential Executive Order 13224 as a person who commits, threatens to commit, or supports terrorism; and that they are not engaged in this transaction directly or indirectly on behalf of, or facilitating this transaction directly or indirectly on behalf of, any such person, group, entity or nation. Each party agrees to defend, indemnify, and hold harmless the other party from and against any and all claims, damages, losses, risks, liabilities and expenses (including reasonable attorneys' fees and costs) arising from or related to any breach of the foregoing representation and warranty.
13. The following provisions are applicable, in addition to the terms and conditions stated above, to the purchase of materials, fixtures and equipment without installation.
A. Handling: A Purchase Order Number must be shown on each package, packing slip and invoice. Invoices must be rendered in duplicate not later than the day following shipment. A bill of lading or express receipt must be attached to each invoice.
B. Extra Charges: No additional charges of any kind, including charges for boxing, packing, cartage, or other extras, will be allowed unless specifically agreed to in writing in advance by McDonald's, except for freight and tax which shall be excluded and billed separately.
C. Payment: It is understood that any cash discount period will date from the receipt of the goods or from the date of the invoice, whichever is later.
D. Quantities: The specific quantity ordered must be delivered in full and not to be changed without McDonald's written consent by issuance of a revised or new Purchase Order by McDonald's expressly incorporating the changed terms. Any unauthorized quantity is subject to McDonald's rejection and return at Service Supplier's expense. McDonald's reserves the right, but not the obligation in its sole judgment and discretion, to make a partial payment where less than a full order has been received or to withhold payment until the full order is received.
E. Applicable Laws: Service Supplier represents that the merchandise covered by this Purchase Order was not manufactured and is not being sold or priced in violation of any federal, state or local law, ordinance, or regulation.
F. Warranty Specifications: Service Supplier expressly warrants that all the materials and articles covered by this Purchase Order, or other description or specification furnished by McDonald's, will be in exactly accordance with such order, description or specification and free from defects in material and/or workmanship, and merchantable. Such warranty shall survive delivery, and shall not be deemed waived either by reason of McDonald's acceptance of such materials or articles or by payment for them. Any deviations from this Purchase Order or specifications furnished in conjunction with this Purchase Order, or any other exceptions or alterations must be approved in writing by McDonald's.
G. Cancellation: McDonald's reserves the right to cancel all or any part of the undelivered portion of this Purchase Order if Service Supplier does not make deliveries as specified, time being of the essence, or if Service Supplier breaches any of the terms of this Purchase Order including, without limitation, the warranties of Service Supplier.
H. Inspection and Acceptance: All goods shall be received subject to McDonald's right of inspection and rejection. Defective goods or goods not in accordance with McDonald's specifications will be held for Service Supplier's instruction at Service Supplier's risk and if Service Supplier so directs, will be returned at Service Supplier's expense. If inspection discloses that part(s) of the goods received are not in accordance with McDonald's specifications, McDonald's shall have the right to cancel any unshipped portion of the Purchase Order. Payment for goods on this Purchase Order prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that McDonald's may have against Service Supplier.
I. Interpretation of Contract and Assignments: This Purchase Order shall be construed according to the laws of the State of Illinois. This Purchase Order may not be assigned by Service Supplier without McDonald's written consent.
J. Exceptions: If Service Supplier is an approved national Service Supplier of McDonald's, the Vendor Services Agreement and /or Business Relationship & Confidentiality Agreement Service Supplier has previously executed supersedes the Terms and Conditions of this Purchase Order in the event of any conflict.
K. Hazardous Materials: Where the goods ordered hereunder are chemical substances, McDonald's shall not be obligated to make payment until Service Supplier has furnished a Material Safety Data Sheet for each chemical substance.
L. Indemnity: Service Supplier agrees to indemnify, defend and save McDonald's, any parent, subsidiaries and affiliates, the McDonald's franchisees and any landlord if applicable ("Indemnitees") harmless from any and all liability, loss, damage, cost, and expense, including court costs and attorney's fees (whether or not litigation is commenced) of whatever nature or type, that the Indemnitees may suffer by reason of any injury or damage sustained, or purported to have been sustained, by any person or thing arising out of any defect in the goods or materials.
M. Risk of Loss: Title and risk of loss shall not pass to McDonald's until good or materials called for in this Purchase Order actually have been received and accepted by McDonald's at the destination specified herein.
Document #: 474527-v8