Purchase Order Terms and Conditions
Services and Deliverables: Provider (“Seller”) agrees to perform the services (“Services”) and/or provide the goods or Service deliverables (collectively, “Goods”) described in any ElectraSteel Inc. (“Electra”) purchase order (“PO”) in accordance with these Purchase Order Terms and Conditions (“T&C’s”). The PO and these T&C’s are collectively referred to as the “Agreement”. Seller and Electra may each be referred to individually herein as a “Party” and collectively as the “Parties”.
Binding Terms: Upon acceptance of a PO, shipment of Goods, or commencement of a Service, Seller shall be bound by the provisions of the Agreement, including all provisions set forth on the face of any PO, whether Seller acknowledges or otherwise signs the Agreement or the PO, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services. The Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized manager of Electra. Any terms or conditions contained in any acknowledgment, invoice, response or other communication of Seller, which are different from or inconsistent with the terms and conditions herein, are hereby rejected. To the extent that the Agreement might be treated as an acceptance of Seller’s prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof and shipment of the Goods or beginning performance of any Services by Seller shall constitute such assent. Electra hereby reserves the right to reschedule any delivery of Goods or performance of Services or cancel any PO issued at any time prior to shipment of the Goods or prior to commencement of any Services. Electra shall not be subject to any charges or other fees as a result of any such rescheduling or cancellation.
Delivery and Shipping: Time is of the essence. Seller shall deliver the Goods and perform the Services specified in the PO in strict accordance with the performance standards and delivery schedule specified in the PO. Any delays or deficiencies in performance or delivery must be promptly communicated to Electra, and Seller shall be liable for any costs or damages resulting from late delivery and/or deficiencies in its performance. All Goods shall be properly packaged and shipped in accordance with industry standards to prevent damage during transit. Electra reserves the right to cancel any order in whole or in part if Seller should fail to make deliveries in accordance with the terms of the PO.
Title and Risk of Loss: Title and risk of loss for Goods shall pass to Electra upon delivery to Electra’s designated facility, provided, however, that the risk of loss shall remain with Seller as to Goods which are not accepted by Electra or which are rejected by Electra. Unless otherwise specified in the PO, all shipments of Goods shall be F.O.B. Electra’s designated facility.
Price and Cost: Seller will perform under the PO at the prices specified therein. Seller will not charge Electra any additional or higher fees than those shown on the PO, unless such additional or increased prices have been authorized by Electra in writing. There shall be no other costs apart from the price agreed between the Parties, appliable sales taxes, and actual freight charges, if any. All other costs shall be borne by the Seller.
Payment Terms: Payment for goods or services shall be made in accordance with the terms specified in the PO or as otherwise agreed upon in writing and signed by both Parties. Unless otherwise expressly set forth in the PO, payment terms are net 60 days following Electra’s receipt of invoice from Seller, or when goods have been accepted, whichever is later. Payment by Electra of any invoice shall not constitute acceptance of Goods or Services and is subject to adjustment for errors, defects, or non-conformance with specifications. Non-conforming or untimely invoice submission by Seller might result in late payment.
Invoices: The seller shall submit accurate and itemized invoices to Electra for payment together with all relevant supporting documentation. Invoices shall be rendered on completion of services or delivery of goods and shall contain the purchase order number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.
If applicable, Seller’s invoice may include applicable sales taxes and actual freight charges incurred by Seller in fulfilling the PO, provided that each is listed as a separate line item on Seller’s invoice. Seller recognizes that Purchaser will be treated as a taxable entity, and Purchaser will provide Seller with a tax exemption certificate when applicable. All invoices of Seller to Purchaser shall exclude taxes that are excludable under Purchaser’s tax-exempt status.
Seller shall email invoices to ap@electra.earth.
Taxes: Except for applicable sales taxes for the purchase of Goods or as otherwise expressly provided in the PO, the contract price shall include all applicable Federal, State and local taxes of any kind relating to the Goods and/or Services provided under the PO.
Quality Inspection: All Goods and Services delivered and/or provided under the Agreement shall conform to the specifications, drawings, samples, and quality standards agreed upon in writing by both Parties, including as set forth in the PO. Electra reserves the right to inspect and test the Goods and/or Services upon receipt and reject any non-conforming or defective Goods and/or Services within 90 days (rejection period) of order or service receipt. Electra’s payment for the goods/services shall not constitute its acceptance of any Goods or Services. Goods and/or Services rejected by Electra and Goods and/or Services supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Electra will notify Seller of any rejected Goods or Services within the rejection period. Transfer of title for Goods does not imply Electra’s acceptance. Seller shall bear all costs associated with rework, repair, reperformance, disposal, or replacement of rejected Goods and/or Services. Seller will act quickly and in good faith to correct or replace rejected Goods and/or Services. Seller shall not deliver Goods previously rejected by Electra without prior written approval by Electra and written disclosure of Seller’s efforts to correct such Good. Payment, if any, made for any Goods and/or Services rejected by Electra hereunder shall be promptly refunded by Seller.
Changes: Electra may at any time make changes in the delivery schedules, drawings, quantities, designs and specifications under the Agreement, but no change will be allowed unless authorized by Electra in writing. Electra may also make changes in the method of shipping or packing and place of delivery by any means of communication. If any such change affects cost or delivery schedules of the Agreement, an equitable adjustment shall be made, provided Seller makes a written claim therefore within 15 days from the date of Electra’s written notification.
Cancellation: Electra may at any time terminate all or any part of the Agreement.
Warranties and Remedies: Seller warrants that (a) all Goods delivered under the Purchase Order shall be free from defects in material, workmanship, and title, and shall be fit for the intended purpose, (b) all Services performed hereunder will be performed in compliance with the conditions and standards agreed by the Parties in writing (including in the PO) and in compliance with all applicable laws, and (c) no Goods delivered, and no Services provided, by Seller under the Agreement infringe upon any intellectual property rights of any third party. Electra’s remedy for breach of warranty shall be repair, replacement, or refund at Electra’s sole option. Such remedy is not exclusive. The warranty period, unless otherwise stated, shall begin the date that Electra accepts the Goods or Services defined within the PO and last for one year from that date.
Indemnification: Seller shall indemnify, defend and hold harmless Electra, its affiliates, and its and their respective officers, directors, employees, consultants and agents (collectively, “Electra Indemnitees”) against any third party claims, including reasonable attorneys’ fees for defending those claims, to the extent such claims arise from Seller’s (a) failure to comply with any terms and/or conditions of the Agreement, (b) failure to comply with all applicable laws, (c) failure to satisfy any of Seller’s warranties under the Agreement or (d) breach of any of its obligations under the Agreement .
Ownership of Work Product and Developed Intellectual Property: For purposes of the Agreement, “Work Product” shall include, without limitation, (a) all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others (including jointly with Electra) which result from or relate to the Services performed hereunder and (b) all intellectual property rights in or that cover any of the foregoing. Standard Goods manufactured by Seller and sold to Electra without having been designed, customized or modified for Electra do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Electra. Seller hereby assigns and agrees to assign to Electra all of Seller’s worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Electra will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Electra deems appropriate. Seller agrees: (i) to disclose promptly in writing to Electra all Work Product in its possession; (ii) to assist Electra in every reasonable way to secure, perfect, register, apply for, maintain, and defend for Electra’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Electra’s name as it deems appropriate; and (iii) to otherwise treat all Work Product as Electra Confidential Information. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of the Agreement. Anything supplied by Electra to Seller, including without limitation, all samples, tools, or equipment shall remain the sole and exclusive property of Electra and Seller is granted only a non-exclusive limited license to use the same solely to provide the Goods, Services and/or Work Product hereunder. Seller will ensure that its employees, contractors and consultants appropriately waive any and all claims and assign to Seller any and all rights or any interests in any Work Product or original works created in connection with the Agreement. Seller irrevocably agrees not to assert against Electra or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Seller affecting the Work Product.
Confidentiality: Seller may access or acquire knowledge of Electra Confidential Information (as defined below) in connection with its performance under the Agreement and agrees to keep such Electra Confidential Information in confidence during and following expiration or termination of the Agreement. “Electra Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by Electra relating to the current or anticipated business or affairs of Electra bio which is disclosed directly or indirectly to Seller. Seller agrees not to use, copy, alter or directly or indirectly disclose any Electra Confidential Information except as necessary to fulfill its obligations under the Agreement. Additionally, Seller agrees to limit its internal distribution of Electra Confidential Information to its employees who have a need to know the Confidential Information and who have signed nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use or disclosure of Electra Confidential Information. Seller further agrees not to use any Electra Confidential Information for its own benefit or for the benefit of any third party. All Electra Confidential Information is and shall remain the property of Electra. Upon Electra’s written request and/or upon expiration or termination of the Agreement, Seller shall return to Electra (or, with the prior written consent of Electra, destroy) all Electra Confidential Information in Seller’s possession or control, including all Work Product, as defined herein, and all copies thereof.
Termination: Electra reserves the right to terminate the Agreement, in whole or in part, for convenience or for cause, upon written notice to Seller. In the event of termination for cause, Seller shall be liable for any costs, damages, or losses incurred by Electra as a result of such breach.
Remedies: The rights and remedies provided by Electra herein shall be cumulative and in addition to any other rights and remedies provided by law or equity.
Documentation: Seller shall send Electra necessary and appropriate documentation related to the Goods purchased based on state and federal requirements and industry best practices, including but not limited to safety data sheets, certificate of analysis, certificate of conformance, itemized packing slip, and sales order.
Insurance: Seller shall maintain such insurance as will be adequate to protect it and Electra from all claims which may arise from Seller’s performance of its obligations hereunder. Seller further agrees to deliver, upon Electra’s request, insurance certificates showing that Seller has Workmen’s Compensation, Public Liability, Product Liability, Auto Liability, Professional Liability and Property insurance coverage. Such certificates must set forth the amount of coverage, policy carrier and number and date of expiration, and shall be subject to Electra’s approval for adequacy of insurance.
Compliance with Law: Seller shall comply with all applicable laws and relevant regulations in connection with the provision of Goods and Services under the PO.
Governing Law: The Agreement shall be interpreted and governed in all respects according to the laws of the State of Colorado, without regard to conflict of law principles thereof. For purposes of the Agreement, each Party submits to the exclusive jurisdiction of the state courts of the State of Colorado and/or the United States District Court for the District of Colorado.
Other Provisions: The Agreement is the complete, final and exclusive statement of the terms of the agreement between the Parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof, provided that any non-disclosure, confidentiality or similar agreements between the Parties shall not be superseded and shall remain in full force and effect. The Agreement may not be varied, modified, altered, or amended except in writing, including a PO or a change order issued by Electra and signed by the Parties. The terms and conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller. Notwithstanding the foregoing, the Agreement will not supersede or take the place of any written agreement which is signed by both Parties following the date of the PO and that covers the same subject matter as the Agreement or its related PO. If any provision of the Agreement is deemed unenforceable or invalid, the invalidity or unenforceability will apply only to that provision or part of it. The remaining provisions of the Agreement will continue to be valid and enforceable.
Survival: All clauses of the Agreement that explicitly or by their nature are intended to remain effective beyond the Agreement termination, expiry, or completion will remain valid and enforceable.