TERMS AND CONDITIONS OF PURCHASE ORDER
1. PARTIES AND ACCEPTANCE OF PURCHASE ORDER. Supplier and Company are defined on the face of the purchase order. Supplier’s: (a) execution and delivery of the Purchase Order, (b) acknowledgement or commencement of the provision of services, (c) work on goods or shipment of goods subject to this Purchase Order, whichever occurs first, shall constitute acceptance of this Purchase Order. Any acceptance of this Purchase Order is limited to acceptance of the express terms contained on the face and back hereof, and any terms specifically incorporated by reference by Company.
2. INSPECTION, ACCEPTANCE OR REJECTION, EXPEDITING, AND SHIPMENT. All goods and services shall be subject to Company’s inspection and approval at any time. Company may accept or reject any or all goods and services that are in the Company’s sole judgment defective or nonconforming in any respect, and regardless of the date that the company discovers the nonconformity. Goods rejected, and goods supplied in excess of quantities ordered by this Purchase Order may be returned to Supplier for a full refund at Supplier’s expense (including shipping). Supplier shall bear all risk of loss of all goods covered by this Purchase Order until such are delivered to the designated location and accepted by the company.
3. WARRANTY. Supplier expressly warrants that all goods or services furnished under the Purchase Order shall (a) conform to all federal, state and local laws and regulations, all specifications and all appropriate or required standards, (b) will be new, and (c) will be free from defects in material and workmanship for a period of one (1) year from the date of receipt by Company or for the period warranted by the manufacturer, whichever is longer. Seller warrants that all goods or services will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. Seller warrants that all equipment shall comply with all national, regional and local codes and requirements. All electrical equipment and related components must be UL certified or meet other local required standards if delivered in the U.S., and meet equivalent national standards if delivered outside the U.S. If Supplier knows or has reason to know the particular purpose for which Company or its affiliates intends to use the goods or services, Supplier warrants that such goods or services will be fit for such particular purpose. Supplier’s warranty shall run to Company, its successors, assigns, customers, and user of goods and services sold hereunder. Supplier agrees to replace or correct defects or nonconformities of any goods or services promptly, without expense to Company. In the event of the failure of Supplier to promptly correct defects in or replace nonconforming goods or services, Company may make such corrections or replace such goods and services and charge Supplier for the cost incurred in so doing. In addition to the express warranty provided by Supplier herein, Company shall have the benefit of all implied warranties recognized in law. Supplier shall obtain all permits necessary for performance of this Purchase Order. Supplier warrants that the prices for the goods and services sold hereunder are as favorable as those extended to any other customer for the same or similar articles in similar quantities. In the event Supplier reduces its price for such goods and services during the term of this Purchase Order, Supplier agrees to reduce the prices herein correspondingly. Supplier warrants that prices shown in this Purchase Order shall be complete, and no additional charges of any type shall be added
without Company’s express written consent.
4. TAXES. Unless otherwise stated within the Purchase Order Documents Supplier is responsible for collecting the sales, use, or excise taxes applicable to shipments delivered, and shall indemnify and hold harmless Company for Supplier’s failure to do so. All such taxes, when applicable, shall be shown as separate items on all invoices.
5. INVOICING INSTRUCTIONS - Purchase Order number must appear on the front of all invoices, and on packages, shipping papers and correspondence. Unless otherwise stated herein, all invoices are to be forwarded to Company. Unless specifically instructed otherwise herein, Supplier shall render a separate invoice for each Purchase Order. All invoices for services must have Supplier’s Taxpayer I.D. Number or Social Security Number (unless previously submitted to Company’s Accounts Payable Department). Invoices shall have sufficient detail and back-up information to allow verification that they are accurate.
6. PRICE AND PAYMENTS. Unless otherwise specified in this Purchase Order, the price for goods and services includes all charges for packaging. Delivery shall be F.O.B. destination and shall be routed in accordance with any attached routing instructions. Payment information furnished by Supplier, such as name, account number(s) and name of payee is accurate. In no event shall Company be required to make additional payments where payment has been made in accordance with such Supplier furnished information. All payments shall be in U.S. currency. Payment terms shall be Net 30 days after receipt of invoice unless otherwise agreed under this Purchase Order.
7. INSURANCE. Supplier shall maintain such insurance as will protect Company and its affiliates from claims pursuant to this Purchase Order, whether such claims arise out of the act or failure to act of Supplier, Company and or its affiliates, or any direct or indirect delegee, appointee or employee of either party. Such insurance shall protect Supplier and Company from any and all claims, including claims of property damage, personal injury (including death), vehicle liability and Worker’s Compensation. If requested by Company, Supplier shall file certificates of aforementioned insurance with Company on a form acceptable to Company.
8. TERMINATION. Prior to Supplier’s full performance under this Purchase Order, Company shall have the right to cancel or suspend, by written notice, in whole or in part, this Purchase Order. If this Purchase Order is cancelled or suspended prior to Supplier’s full performance, Supplier shall be paid a reasonable termination charge consisting of 5% of the value of undelivered product or unperformed services on Purchase Orders up to $10,000.00 and 1% on Purchase Orders over $10,000.00. SUPPLIER WILL NOT BE ENTITLED TO ANY OTHER TERMINATION FEE OR ANY PAYMENT FOR UNPERFORMED WORK OR UNDELIVERED PRODUCT. FURTHER, SUPPLIER IS NOT ENTITLED TO SEEK ANY LOST PROFITS OR OTHER EARLY TERMINATION DAMAGES.
9. INDEMNITY AND DAMAGES. Supplier shall defend, indemnify and hold Company harmless from and against all third-party damages, claims or liabilities and expenses, including attorney’s fees, arising out of or resulting in any way from (a) the goods or services provided hereunder, (b) any breach hereof by Supplier, or (c) any other act or omission of Supplier, its agents, employees or subcontractors. This indemnification obligation shall be in addition to the warranty obligations of Supplier and shall not be limited by insurance coverage. No party to this Purchase Order shall be liable for consequential or indirect damages.
10. INFRINGEMENT. The Supplier shall, at its own expense, hold harmless and defend Company and its affiliates against any claim, suit or proceeding brought against Company and or its affiliates which is based on a claim, whether rightful or otherwise, that the goods or services, or any part thereof, furnished under this Purchase Order, constitute(s) an infringement of any patent, copyright, intellectual property right, trade secret or the like, and the Supplier shall pay all damages, losses, royalties, profits, costs, and expenses, including attorney’s fees, arising from such claims.
11. CONFIDENTIALITY - ADVERTISING. Supplier shall consider all information furnished by Company to be confidential and shall not disclose any such information to any other entity or person without Company’s written consent. Supplier shall not advertise or publish the fact that Company has contracted with Supplier without Company’s written consent.
12. INDEPENDENT CONTRACTOR. Supplier, its employees and agents, are independent contractors and not agents of Company or its affiliates.
13. ASSIGNMENT. Company reserves the right to assign this Purchase Order to successors, affiliates, or subsidiaries without further notice to Supplier. Such assignment shall not require the consent of Supplier. No part of this Purchase Order shall be assigned or subcontracted by Supplier without Company’s written consent.
14. ENTIRE AGREEMENT AND AMENDMENT. This Purchase Order constitutes the sole and entire agreement between the parties. No other terms or conditions not set forth herein will be binding. Any purported amendment of this Purchase Order must be in writing and signed by the party to be charged with any obligation under or pursuant to the amendment.
15. GOVERNING LAW AND VENUE. This Purchase Order, and the rights of the parties hereto, shall be construed under and governed by the laws of the State of Colorado, without regard to applicable conflicts of law provisions, which would cause this Purchase Order to be governed and construed by the laws of a state other than Colorado. All disputes arising hereunder shall be resolved exclusively in the state courts situate in the City and County of Denver, Colorado.
16. FORCE MAJEURE. Company may delay delivery or acceptance due to causes that are completely beyond its control. If delivery of goods or services by Supplier is delayed by the occurrence of unforeseen and unforeseeable events beyond Supplier’s control. Supplier must notify Company of such events as soon as they occur, and give Company revised delivery dates. If any delay exceeds thirty (30) days from the original delivery date, Company may cancel this Purchase Order without any liability.
17. WAIVER. Company’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege, or waiver of any breach hereunder shall not be construed or deemed to be a waiver of any other terms, conditions, rights, or privileges of the Purchase Order, nor a waiver of subsequent breach of the same term or condition.
18. NOTICES. All notices to Company arising hereunder shall be directed to: LivWell Enlightend Health, Purchasing Department, Suite 100, 4701 Marion Street, Denver, Colorado 80216.
19. COMPLIANCE WITH SITE POLICIES. Supplier, and its employees and subcontractors shall comply with all applicable provisions of Company’s plant, project or facility or site policy and procedures, including but not limited to any instructions and procedures pertaining to plant or facility site security, industrial safety, environmental directives, work authorization, equipment control and hazardous materials. In addition, Supplier, and its employees and subcontractors shall comply with and enforce, among Suppliers employees and subcontractors, plant or facility site conditions and job work rules which affect the performance of the work or services, including but not limited to work hours, smoking regulations, check-in and check-out procedures, job site safety regulations, and emergency plans and procedures.
20. SAFETY. Supplier shall be responsible for all safety precautions in connection with the work and shall take all reasonable precautions for the safety of Supplier and subcontractor’s employees performing the work and all other persons on or around the project. Supplier shall promptly take all reasonable and prudent actions to prevent and/or mitigate any damage, injury and/or loss, regardless of the source of the fault, particularly in the event of an emergency. Supplier and its subcontractors are directly responsible for the safety of their respective agents, employees and other representatives. Company in no way assumes any of the duties, obligations or liabilities attributed to Supplier under the Purchase Order. Supplier shall immediately report via telephone and in writing to a Company representative all accidents in connection with the work that result in death, personal injury, or property damage.