1. Acceptance of Contract: By its acceptance hereof or performance hereunder, Seller agrees to be bound by, and to comply with the terms and conditions stated herein, including any supplements or releases hereto, all of which are incorporated herein by reference and are collectively referred to as the "Contract." This Contract does not constitute acceptance by Buyer of any offer or proposal to sell. This Contract expressly limits acceptance to the terms and conditions stated herein and any additional or different terms proposed by the Seller in an order acknowledgment, invoice or otherwise, whether materially different herefrom or whether prior or subsequent to this Contract, are rejected and shall not be binding on Buyer or become a part of this Contract unless expressly agreed to in writing by Buyer. In the event of a conflict between the terms on the Purchase Order, including any supplements or releases hereto, and these terms and conditions, the terms on Purchase Order, including any supplements or releases hereto, shall control.
2. Entire Agreement: The parties agree that this Contract, including the terms and conditions on the Purchase Order, including any supplements or releases hereto, and any documents attached or incorporated by reference, contains the complete and final contract between Buyer and Seller, and that no agreement or understanding to modify this Contract shall be binding upon Buyer unless in writing and signed by Buyer's authorized representatives. All specifications, drawings, and data submitted to Seller regarding the products ("Products") and/or services ("Services" and collectively with deliverables resulting therefrom and Products, "Goods") ordered pursuant to this Contract or referred to by this Contract are incorporated into and made a part of this Contract.
3. Pricing: Unless otherwise specified in this Contract, the contract price shall include all taxes and duties imposed upon Seller in connection with the transactions under this Contract. Unless otherwise specified in this Contract, no additional charges of any kind, including, without limitation, charges or expenses incurred in connection with boxing, containerization, drayage, cartage or other transportation, overtime or insurance will be allowed unless specifically accepted by Buyer in writing. Price increases shall not be binding on Buyer unless evidenced by a change notice or revision issued and signed by Buyer.
4. Delivery: Completion of Services and/or shipment of Products shall be made in the quantities and by the time or times specified in this Contract or in the applicable release. Time is of the essence. If at any time Seller has reason to believe that deliveries of Products or completion of Services will not be made as scheduled, it shall immediately give Buyer written notice setting forth the cause or causes of the anticipated delay. In addition to any rights and remedies Buyer may have by contract or law, Buyer reserves the right, without liability, to terminate this Contract and/or the applicable release and purchase the Goods elsewhere and charge Seller with any resultant losses, costs and expenses and/or direct Seller to ship by a method other than that indicated in this Contract and Seller shall pay all transportation charges, customer penalties and all other costs and expenses incurred by Buyer.
5. Inspection and Acceptance: All Goods purchased hereunder are received subject to Buyer's right of inspection, count, and testing, and Buyer reserves the right to reject and refuse acceptance of Goods, or to return Goods already accepted, which are not in accordance with this Contract, Buyer's specifications or with Seller's warranties (express or implied). Payment for Goods shall not constitute acceptance thereof. Goods not accepted will be returned to Seller for full credit or replacement at Buyer's option and at Seller's risk and expense, including transportation charges both ways. Buyer will be given full credit for Services not accepted. No replacement of rejected Goods or reperformance of rejected Services shall be made unless specified by Buyer in writing. Acceptance of any part of the Goods shall not bind Buyer to accept, nor constitute a waiver of Buyer's right to cancel or return, future Goods. Such rights shall be in addition to any other rights and remedies Buyer may have by contract or law. Buyer shall have the right to inspect and test all Goods, tooling, and workmanship and to inspect and audit Seller's facilities and practices for compliance with this Agreement and applicable laws; however, the failure to audit, test or inspect will neither relieve Seller of any liability for defects or noncompliance, nor create any liability on the part of Buyer for noninspection.
6. Title and Risk of Loss: Unless otherwise specified herein, title and risk of loss of Products shall pass to Buyer upon completion of unloading at the dock at the destination set forth herein. Buyer shall not be responsible for any damage to goods which shall occur during shipment, and no such damage shall relieve Seller of any obligation to Buyer. Seller shall be liable for damage caused by improper boxing, crating, or packing and shall take reasonable measures to ensure the physical integrity and security of all shipments.
7. Seller's Warranties: Seller hereby warrants that the Goods furnished hereunder shall be free of defects in material, design, title and workmanship; be new and of merchantable quality; be fit for Buyer's purposes; and conform with all instructions, specifications, drawings, samples, and designs furnished, approved or adopted by Buyer. The foregoing warranties shall survive Buyer's inspection, acceptance, sale and use of the Goods. Said warranties shall be in addition to any warranties of additional scope given by Seller to Buyer and in addition to any warranties or remedies of Buyer, express or implied, which are provided by contract or law. Any attempt by Seller to limit, disclaim, exclude or restrict any such warranties or remedies of Buyer shall be void unless specifically agreed to in writing by Buyer. Seller agrees to promptly replace or correct, at Buyer's election, defects and non-conformities in any Goods, without expense to Buyer, when notified of such defect or non-conformity by Buyer. In the event of failure by Seller to promptly correct defects in or replace non-conforming Goods, Buyer, after reasonable notice to Seller, may, without liability, and, in addition to any other rights and remedies Buyer may have at law or by contract, make such corrections or replace such Goods and charge Seller with any resultant costs and expenses or deduct from the current invoice of Seller the cost of the defective or non-confirming Goods.
8. Proprietary Information: All technical and other knowledge or information obtained or learned by Seller as a result of this relationship and all technical and other information furnished by Buyer or its representatives or jointly developed by Buyer and Seller shall remain Buyer's property and unless otherwise consented to in writing by Buyer, shall be used only for performance of the work under this Contract and shall not be disclosed to third parties.
9. Indemnification: Seller agrees to indemnify, defend and hold Buyer harmless from and against all damages, actions, liabilities, claims, losses and expenses suffered by Buyer or third parties (including any losses for injury or death, damage to property, court costs and attorney's fees) relating to or resulting in any way from any act or omission (whether or not negligent) of Seller, any defect in the Goods furnished hereunder, any violation of any law by Seller or any Goods, or any breach by Seller of any provision of this Contract. Seller agrees that this indemnification shall survive acceptance of the Goods and payment therefor by Buyer, and shall be binding upon the Seller, its successors and assigns, and shall inure to the benefit of Buyer, its successors and assigns, and to the benefit of Buyer's officers, directors, agents and employees and their heirs, executors, administrators and assigns.
10. Insurance: Seller agrees, at its sole cost and expense, to maintain for the mutual benefit of Buyer and Seller such General Liability, Property Damage, Product Liability, Employer's Liability, Workers' Compensation and other insurance necessary to adequately protect Buyer against the damages, liabilities, actions, claims, losses and expenses (including attorneys' fees) referred to in paragraph 9. All policies of insurance shall provide that the proceeds shall be payable to Buyer and Seller as their respective interests may appear. All policies of insurance shall further provide that they shall not be cancelable on less than thirty (30) days notice to all insureds. Compliance by Seller with these insurance requirements does not in any way affect Seller's indemnification of Buyer under paragraph 9. Seller shall furnish evidence of insurance satisfactory to Buyer including, but not limited to, certificates of insurance adding Buyer as an additional insured in the following minimum limits prior to the execution of this Agreement.
$2,000,000 each person
$2,000,000 each accident
$2,000,000 each accident
11. Intellectual Property: Seller warrants that the Goods do not infringe any patent, copyright or other proprietary right of any third party. Seller agrees, at its own expense, to defend any claim, suit or action brought against Buyer for alleged infringement of patent, copyright or other intellectual property rights or any misappropriation of a trade secret arising from the sale or use of the Goods covered by this Contract and to indemnify and hold Buyer harmless from any damages, liabilities, claims, losses and expenses (including court costs and attorneys' fees) paid or incurred by Buyer in connection with any such suit or action; provided, however, that this indemnity shall not apply to any such damages, liabilities, claims, losses or expenses arising solely out of compliance by Seller with specifications furnished by Buyer. In the event Buyer is enjoined from using or selling any good, Seller shall, at its own expense and at its option, either procure for Buyer the right to continue using the good, or if the performance thereof will not be materially adversely affected, replace same with a non-infringing equivalent, or modify it so it becomes non-infringing or remove the infringing good and refund the full purchase price and the transportation and installation costs thereof.
12. Default: Should Seller breach this Contract, including any delay in delivery caused by the fault or negligence of Seller, Buyer shall have the right immediately to terminate this Contract, in whole or in part, without further obligation or liability and shall have all remedies available to it under this Contract, at law or in equity.
13. Termination: Buyer may at any time terminate this Contract in whole or in part for its convenience upon written notice to Seller and Seller shall immediately stop all work hereunder and shall minimize charges related to this Contract, including diverting materials to other uses. In no event shall Buyer's obligation hereunder exceed that which Buyer would have had to Seller in the absence of termination. Buyer shall not be obligated to purchase any raw materials of Seller or to pay any cancellation charges. Buyer shall not be liable for any work done after notice of termination is given or for costs that reasonably could have been avoided by Seller. Buyer shall not be liable for work performed by Seller not in accordance with this Contract or an applicable release. In no event shall Buyer be liable to Seller for any other amounts or adjustments, including, without limitation, consequential, incidental or special damages or lost profits.
14. Compliance with Laws: Seller represents and warrants that it shall comply with and that all Goods furnished hereunder will comply with all applicable foreign and U.S. federal, state and local laws (and with the regulations, orders and standards thereunder) including where applicable, but not limited to, those (i) prohibiting bribery or other similar payments or practices and (ii) relating to environmental protection, health, industrial hygiene and safety; the Fair Labor Standards Act of 1938; the Walsh-Healey Act; the Work Hours Act; the Civil Rights Act of 1964; Section 202 of Executive Order 11246 as to non-discrimination in employment; and the Occupational Safety and Health Act of 1970, and any amendments thereto. Seller further represents and warrants that none of the Goods supplied hereunder have been or will be produced utilizing forced, indentured or convict labor or utilizing the labor of persons in violation of minimum working age, wage, hour of service or overtime laws in the country of manufacture.
15. Waiver: The failure of Buyer to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Contract or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect.
16. Assignment: None of the sums due or to become due nor any of the work to be performed under this Contract shall be assigned by Seller, nor shall Seller subcontract for completed or substantially completed material called for by this Contract without Buyer's prior written consent.
17. Jurisdiction: Applicable Law: Seller and Buyer hereby agree that the provisions of this Contract shall be interpreted and construed in accordance with the laws of the State of Colorado, without giving effect to the conflict of laws provisions thereof, and to venue solely in Denver, Colorado. The parties hereby mutually agree to waive to the extent permitted by law, trial by jury in any litigation in any court in connection with or arising out of this Contract. The United Nations Convention on the International Sale of Goods shall not apply to this Contract.
18. Force Majeure: Neither party shall be liable for any failure or delay in performance under this Contract caused by or due to act of God, act of civil or military authorities, governmental priorities, accident, casualty, fire, flood, epidemic, terrorism, war, riot, or a contingency the non-occurrence of which was a basic assumption on which this order was made, provided that the party affected thereby promptly notifies the other party of such event, and provided further, that in the case of any such event affecting Seller, Seller shall allocate all available production, inventories and deliveries to Buyer. If Seller is unable to perform for more than thirty days, Buyer may cancel this Contract without penalty. Failure or delay due to labor strike, delay of Seller's suppliers or scarcity of materials or parts shall not excuse performance unless due to one of the causes noted in this Section.
19. Blanket Order: If, on the face of the Purchase Order, it is indicated as a "blanket" order, Buyer is not committed to purchase any Goods except as may be specified in a release issued by Buyer referencing this Contract. Under no circumstances shall Buyer be under an obligation to purchase Goods not specifically covered by a release from Buyer or in an amount in excess of the quantity specified on the release, including, but not limited to, any raw materials purchased by Seller prior to receipt of a release. Seller shall not make material commitments or production arrangements in advance of the time or in excess of the amount necessary to meet the requirements of the applicable release.
20. Buyer's Property: In the event Seller makes use of any of Buyer's tools, equipment or materials, they shall be accepted in "as is" condition, without any warranty and Seller shall indemnify and hold harmless Buyer from and against any and all loss or liability (including attorneys' fees and court costs) relating to or in respect of any failure of the same to be suitable for the intended purposes or for any damage, destruction, injury or death arising from their use. All tools, equipment and material furnished to Seller by Buyer or specially paid for by Buyer and any replacements thereof shall remain the property of Buyer. Seller shall not use Buyer's property except for performance of work hereunder. While in Seller's possession, Seller shall keep such property in good condition, hold it at Seller's risk and keep it insured (such insurance being primary insurance), at its sole expense, in an amount equal to the replacement cost with loss payable to Buyer and shall immediately replace it when lost, damaged or necessary for performance of work hereunder. Seller shall provide Buyer with evidence of such insurance satisfactory to Buyer. As and when directed by Buyer, Seller shall immediately disclose the location of such property and/or prepare it for shipment and ship it to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, whether or not Seller has asserted an affirmative claim against Buyer.
21. No Changes: Seller shall not make changes in the specifications, physical composition of, process used to manufacture or change any supplier of a material component of the Goods without Buyer's written consent.
22. Set Off: Buyer shall have the right at all times to set off any amounts owing at any time from Seller against any amount payable at any time by Buyer to Seller.
23. Liens: If this Contract covers the performance of Services, Seller agrees to furnish evidence satisfactory to Buyer that all liens have been released by all persons who have performed Services or furnished materials under this Contract.
Before being considered as an approved vendor, potential vendors must provide the following minimum information: Company name and physical address, ordering contact (including phone number, facsimile number, and e-mail address), invoicing / accounts receivable contact (including phone number, facsimile number, and e-mail address), remit to address, and tax identification number.
Carefree accepts invoices via e-mail at email@example.com or via USPS (or other delivery services such as UPS, FedEx, etc.) at 2145 West 6th Avenue; Broomfield, CO 80020. Invoices must include a unique invoice number, the vendor's name and address, vendor contact information, Carefree's purchase order number, delivery date, and unique shipment identifier (see Product / Shipment Labeling Standards for more information on shipment identifier). For each item delivered, the invoice must also include Carefree's purchase order line number, Carefree's part number, description, quantity delivered, unit price, and extended price. Freight, sales tax, and other additional charges must be clearly labeled and in accordance with Carefree's standard terms and conditions and/or additional terms and conditions as specified on Carefree's purchase order.
Invoices with missing or incomplete information, which do not agree with the purchase order, including any supplements or releases, or which do not agree with actual receipts will be returned for correction. No payment will be made until all outstanding problems are corrected. For the purpose of determining terms or discounts, Carefree will consider the date of invoice to be the later of the vendor's invoice date or the date when all required corrections have been made.