Acceptance: Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and back hereof. Any additional or different terms or any attempt by the Seller to vary in any way the terms of this purchase order is hereby objected to and rejected, but such proposals shall not operate as a rejection of this purchase order unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods. Only terms and conditions that are specifically negotiated and agreed to by the parties in a subsequent written change order will be considered part of this agreement.
Payment: Purchaser agrees to pay Seller for the satisfactory performance of this purchase order upon the later of: (i) acceptance of the goods and/or work by the project owner; or (ii) forty-five (45) days from Purchaser's receipt of Seller's invoice. The price set forth on the front of this purchase order is firm and not subject to escalation by Seller.
Termination for convenience of Purchaser: Purchaser reserves the right to terminate this order or any part hereof for its sole convenience. In the event of such termination, Seller shall be paid a reasonable restocking charge plus all costs of shipping this order if Seller has actually shipped the order or a part thereof prior to receipt of the termination of the order.
Termination for Cause: Purchaser may also terminate this order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of this purchase order. The filing of bankruptcy by Seller, or the appointment of a receiver, in addition to late deliveries by the Seller, deliveries of products which are defective or which do not conform to this order, and failure of Seller to provide Purchaser, upon request, of reasonable assurances of future performance shall all be causes allowing Purchaser to terminate this order for cause. In the event of termination for cause, Seller shall be liable to Purchaser for any and all damages sustained by reasons of the default which gave rise to the termination.
Proprietary Information – Confidentiality – Advertising: Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract. Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser's written permission. Seller agrees that it will not release to any person, details, specifications, drawings, blueprints or designs of any article or component thereof which have been supplied to Seller by Purchaser and which components have been manufactured by Seller to Purchaser's specification.
Warranty: Seller expressly warrants that all goods or services furnished under this Agreement shall conform to all applicable laws, codes, ordinances and professional standards as well as all specifications, required by Purchaser or Purchaser's Customer, will be new, will be free from all defects in materials or workmanship and will be merchantable and fit for their intended purpose. Seller warrants that such goods or services will conform to any and all statements made on the containers or labels or advertisements for such goods, or services, and that all goods will be adequately contained, packaged, marked and labeled. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller's obligations under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller's warranty shall run to Purchaser, its successors, assigns and customers, and users of products sold by Purchaser. Seller agrees to replace, or correct defects of any goods or services not conforming to the foregoing warranty promptly, without any expense to Purchaser, when notified of such nonconformity by Purchaser. If Seller fails to correct defects in, or replace nonconforming goods or services promptly, Purchaser may make such corrections or replace such goods and services and charge Seller for the cost incurred by Purchaser in doing so. It is expressly understood that all of the materials supplied hereunder shall conform to and shall be in accordance with materials specified for use under Cooling Tower Institute (CTI) Standards if applicable.
Price Warranty: Seller warrants that the prices for the articles sold to Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for any such article during the term of his order, Seller agrees to reduce the prices hereof accordingly. Seller warrants that prices shown on this purchase order shall be complete, and no additional charges include, but are limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating. If Seller's prices are higher than the prices specified herein, Seller must not ship but shall return purchase order to Purchaser.
Force Majeure: Purchaser may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed.
Insurance: In the event that Seller's obligations hereunder require performance of services by Seller's employees, or persons under contract to Seller, to be done on Purchaser's property, or property of Purchaser's customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Purchaser. Seller shall maintain the following minimum levels of insurance coverage: (1) Commercial General Liability Insurance including contractual liability coverage covering liability assumed under this purchase order, broad form property liability coverage, personal injury coverage, and explosion, collapse and underground hazards with a combined single limit of $1,000,000 per claim and $2,000,000 in the aggregate; (2) Auto Liability insurance including all owned, hired, leased, assigned and non-owned vehicles with a limit of $1,000,000 per accident for bodily injury and property damage; (3) Workers Compensation and Employers Liability Insurance covering all of the Seller's employees, workers, leased workers, and subcontractors with at least the minimum amount of workers compensation insurance required by the state or governmental authority where the work is taking place, and Employers Liability insurance in the amount of $1,000,000 per accident/illness/claim, both of which policies shall name Purchaser as an alternate employer; (4) Contractors Equipment covering Seller's equipment, tools and business personal property that are used in connection with the performance of this purchase order; and (5) Umbrella/Excess Liability insurance covering the form of coverages required above with limits of liability equal to $5,000,000 per occurrence. Seller agrees that all such insurance will name Purchaser as an additional insured with respect to Seller's performance hereunder (except Workers Compensation), all such insurance shall be primary and non-contributory and be designed to protect Purchaser to the maximum extent allowed by law. All such insurance shall waive any rights of subrogation against Purchaser. Seller shall indemnify, hold harmless and defend Purchaser from and against any and all claims or liability arising out of the work covered by this purchase order.
Changes: Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging time and place of delivery and method of transportation. Any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified by change order in writing. Seller agrees to accept such changes subject to this paragraph.
Inspection/Testing: Payments for the goods delivered, hereunder shall not constitute acceptance thereof, Purchaser shall have the right to inspect such goods and reject any or all of said goods which are in Purchaser's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense. Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser receives goods whose defect or nonconformity is not apparent upon examination, Purchaser reserves the right to require replacement, as well as payment of damages. Replacement of materials will not be accepted unless such replacement has been authorized. Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
Indemnification: Seller shall defend, indemnify and hold harmless the Purchaser from and against all damages, claims, or liabilities and expenses (including reasonable attorney's fee) arising out of or resulting in any way from any defects in the goods or services purchased thereunder, or from any act or omission of Seller, its agents or customers for alleged patent infringement, as well as for any unfair competition resulting from similarity in design, trademark, or appearance of goods or services furnished hereunder.
Entire Agreement: This purchase order and any documents referred to on the face hereof, constitute the entire agreement between the parties.
Assignment and Subcontracting: No part of this order may be assigned or subcontracted by Seller without the prior written approval of Purchaser.
Set Off: All claims for money due or to become due from Purchaser shall be subject to deduction or set off by the Purchaser by reason of any claim or counterclaim, arising out of this or any other transaction with Seller.
Shipment: If in order to comply with Purchaser's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity or request for such rerouting or expedited handling has been caused by Purchaser. Do not ship prior to any specified date unless otherwise notified by Purchaser. Material will not be accepted unless tagged or marked with our Order Number and quantity as embodied in this order. If Seller's deliveries fail to meet the schedule shipments, it is understood that the Seller will allow the difference between the freight and express rate in the event Seller is unable to make delivered in time to meet Purchaser's requirement. Purchaser reserves the right to modify or cancel this order with no charge to Purchaser. It is also understood and agreed that Seller grants the Purchaser the right at any time to specify the carrier and/or the method of transportation to be employed in conveying any part or all transportation cost from the normal transportation cost agreed upon herein. Shipment of merchandise under this order is Seller's guarantee of full compliance with all applicable provisions of federal, state and municipal law, and Seller agrees to hold Purchaser harmless from all liability resulting from failure of such compliance. Our count and weight shall be final and conclusive on shipments not accompanied by a packing list. It is also agreed Seller shall mail its invoice immediately after each shipment is made, each invoice shall be DUPLICATE and shall bear Purchaser's order number, part number and amount of material shipped.
Waiver: Purchaser's failure to insist on performance of any of the terms and conditions herein or to exercise any right or privilege, or Purchaser's waiver of any breach thereunder shall not waive any other terms, conditions, or privileges, whether of the same or similar type.
Delivery: Time is of the essence of this contract, and if delivery of items or rendering of services is not completed by the time promised, Purchaser reserves the right without liability in addition to its other rights and remedies to terminate this contract by notice effective when received by Seller as to items not yet shipped or services no yet rendered and to purchase substitute items and services elsewhere and charge Seller with any loss incurred.
Limitation of Purchaser's Liability: In no event shall purchaser be liable for any CONSEQUENTIAL, INCEDENTAL, INDIRECT, SPECIAL, or EXEMPLARY DAMAGES of any kind regardless of the legal or equitable theory giving rise to any such claim. Purchaser's liability on any claim of any kinds for any loss or damage arising out of or in connection with or resulting from this purchase order or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of the action has accrued.
Equal Employment Opportunity: The Seller agrees to comply with the application provisions and situation of all Federal and State laws regulating Equal Opportunity, including sever (7) paragraphs in Section 202 of Executive Order 11246, as amended ad 41CFR, Part 60-1. This commitment to EEO shall be effective as of the date of this Purchase Order.
Governing Law and Disputes: Seller agrees to fully comply with all Federal, State and Local laws, rules, regulations and ordinances enacted or enforced by any applicable governing body having jurisdiction. In case of any disputes between Purchaser and Seller, the Parties agree that all such disputes shall be settled through litigation in the District Court of Jefferson County Colorado and that Colorado law shall govern this purchase order and any disputes between the parties. Seller agrees that both venue and jurisdiction in such court is proper.