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Purchase Order Terms and Conditions
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These Purchase Order Terms & Conditions (these “Terms and Conditions”) apply to the sale of products to and the performance of related services for Denvr Dataworks (“Buyer” or “Denvr”), by the supplier, pursuant to any purchase agreement, supply agreement, purchase order, service order or like instrument between or binding upon Denvr and Seller (the “Purchase Agreement”). References hereunder to “products” and “services” includes items specifically provided for in the Purchase Agreement. These Terms and Conditions are deemed incorporated into the Purchase Agreement. Everything here is in addition and in alignment with the supplier code of conduct obligations found at Supplier Code of Conduct | Denvr Dataworks.
1. TERMS AND CONDITIONS OF PURCHASE By selling products to or performing services for Denvr or accepting the Buyer’s orders for products or services, Seller confirms that these Terms and Conditions apply to Denvr’s purchases. In the event of a conflict between these Terms and Conditions and the terms of the Purchase Agreement or Seller’s general terms and conditions, these Terms and Conditions shall prevail to the extent of such conflict.
2. PRICING; PAYMENT
(a) Unless stated otherwise in the Purchase Agreement, prices are: (i) in U.S. dollars or CAN dollars; (ii) fixed for the duration of the Agreement; and (iii) DDP INCOTERMS (2022) at the Buyer-specified facility. Extra charges are only allowed if agreed to by Buyer in writing.
(b) Unless specified elsewhere, payment is due net 60 days from Buyer’s receipt and acceptance of an invoice and satisfactory product or services.
(c) Seller’s price includes all applicable taxes, fees, or duties. Seller will indicate taxes on invoices unless prohibited by law and must remit them to the appropriate authorities. If exempt, Seller must provide a valid tax exemption certificate 30 days prior to payment. Buyer may withhold taxes if required by law and will provide a tax receipt.
(d) If Seller fails to meet more favorable third-party terms, Buyer can purchase from the third party. Seller must match or decline such terms within five days of Buyer’s notice or during an online event.
(e) Buyer may exercise the rights under (f) as often as necessary during the Agreement’s term.
(f) If Buyer is required to purchase a percentage of its needs from Seller, reasonable third-party purchases for product qualification are excluded from Buyer’s requirements.
(g) Seller must promptly notify Buyer of any tax claims and coordinate responses. Buyer’s liability for such taxes is contingent on timely notification. The parties will work together to minimize Buyer’s tax responsibility.
3. TRANSPORTATION & DELIVERY
(a) Seller shall deliver the goods to Buyer’s designated location in the quantities and on the dates specified by Buyer in its purchase orders furnished to Seller under the Purchase Agreement.
(b) Delivery dates in this agreement are crucial, and the Seller must make every effort to meet them. If the Seller anticipates any delays, they must notify the Buyer immediately in writing. The Buyer is not obligated to accept late deliveries but may choose to do so. If the Buyer accepts a late delivery, they can require the Seller to expedite the shipment at the Seller's expense. Accepting late deliveries does not waive the Buyer's right to hold the Seller accountable for any resulting damages. If the Seller fails to meet a delivery date, the Buyer may obtain replacement products or services, and the Seller will be responsible for all related costs due to early or late deliveries.
(c) Unless otherwise provided elsewhere in the Purchase Agreement, delivery will occur, and title and risk of loss will transfer, when: with respect to product not incorporated into services, product passes into Buyer's designated facility or location; or, with respect to product incorporated into services, the completed services have been accepted by Buyer.
(d) Packing, preservation and marking will be in accordance with the specification drawing or as specified in this Purchase Agreement, or if not specified, the best commercially accepted practice will be used, consistent with applicable law. The gross and net weight, shipping address, mode of packing, and in case of over-dimensional shipment the hook-points and stacking ability shall be marked on the packing.
(e) No charges for unauthorized transportation shall be allowed.
(f) Seller shall only declare value for customs purposes on material shipped via courier, such as United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post.
(g) Seller shall release shipments at the lowest released valuation permitted in the governing tariff or classification.
(h) If Seller’s failure to deliver continues for more than seven (7) consecutive days beyond the delivery date or more than two (2) incidents per quarter, Buyer shall also have the right to terminate the Purchase Agreement (and/or the subject affected order) without liability or penalty.
(i) Delivery dates are a defined number of days for Seller’s delivery of products from the date the applicable purchase order is issued, unless otherwise mutually agreed to and acknowledged in writing by both parties. If the subject products will not be delivered by the date specified in the applicable purchase order by utilizing the shipping method set forth therein, then Seller shall expedite airfreight, or ship premium freight, the subject products at Seller’s sole expense.
4. INSPECTION
(a) Buyer or its representatives shall have the right to inspect and test all products and services and all materials, equipment and facilities utilized by Seller in producing products or providing services for Buyer. This includes, without limitation, reasonable access during normal working hours of Seller to the sites where work under this Purchase Agreement is performed, in order to assess work quality, conformance with Buyer’s specifications, and conformance with Seller’s representations, warranties, certifications and covenants under the Purchase Agreement. Seller will maintain an inspection and testing system for the same that is acceptable to Buyer and will keep records of all inspection and testing for two (2) years after delivery. If required due regulatory or because of the scope of work procured, Seller will deliver to Buyer a certificate of analysis as to specifications approved by Buyer with respect to each product shipped.
(b) If any of the products or services ordered are found at any time to be defective, or otherwise not in conformity with the requirements of the Purchase Agreement, including any applicable drawings and specifications, Buyer may, at is option and sole discretion, and in addition to any other rights and remedies it may have: (i) reject and return such products at Seller’s expense; (ii) require Seller to inspect the products and remove and replace non-conforming products with products that conform to the Purchase Agreement; (iii) upon notice to Seller, take such actions as may be required to cure all defects and/or bring the products or services into conformity with all the requirements of the Purchase Agreement; and/or (iv) reject the services and require Seller to re-perform, at its own expense, any defective portion of the services performed. If Buyer elects option (ii) above and Seller fails to promptly make the necessary inspection, removal and replacement, Buyer may at its option inspect and sort the products, and Seller shall pay the cost thereof.
(c) Whether or not Buyer inspects or tests the products, Seller shall not be relieved from any responsibility regarding defects or other failures to meet order requirements which may be subsequently discovered, including latent defects.
5. WARRANTIES
(a) Seller warrants that all products and services will be: (i) free of any claims by third parties and that Seller will convey clear title thereto to Buyer;(ii) in strict accordance with the specifications, samples, drawings or other descriptions approved by Buyer; (iii) of merchantable quality and free from all defects in design, workmanship and materials; and (iv) to the extent that Buyer relies on Seller to specify the products or services, fit for their intended purpose. Seller further warrants that all software, firmware, or computer or electronic equipment provided hereunder will be: (v) free of computer viruses or code or instructions that may be used to access, modify, delete, damage, or disable any computer, associated equipment, computer programs, data files or other electronically stored information operated or maintained by Buyer; and (vi) unaffected in its performance or functionality by date changes. Seller further warrants that all services will be performed in accordance with the highest standards of care and diligence normally practiced by persons performing similar services and in the best workmanlike manner, and by personnel who have the required skill, experience and qualifications to perform the services.
(b) If any products or services fail to conform to the above warranties, Seller, at Buyer’s option, will: (i) with respect to products, replace or repair the nonconforming products; (ii) with respect to services, re-perform all services necessary to correct any such nonconformity; or (iii) refund the purchase price of the nonconforming products or services and any related costs incurred by Buyer. Any replacement products or services also will be subject to the above warranties and warranty period. The warranty period for repaired products will be extended to account for the time lapsed until the repair was completed. This remedy is in addition to any other right or remedy to which Buyer may be entitled by law or as per the Purchase Agreement. If Seller does not replace, repair or re-perform, as applicable, promptly a reasonable time after notice, Buyer may do so at Seller’s expense.
(c) In addition to any other rights conferred hereunder or otherwise available under applicable law or equity, including the recovery of any and all damages caused, at Buyer’s sole discretion, Buyer may: (i) at Seller’s expense, require Seller to inspect, remove, reinstall, ship and repair or replace/re-perform nonconforming products and/or services with products and/or services that conform to all requirements of the subject order; (ii) take such actions as may be required to cure all defects and/or bring the products and/or services into conformity with all requirements of the subject order, in which event all related costs and expenses (including, but not limited to, material, labor and handling and any required re-performance of value added machining or other service) and other reasonable charges shall be for Seller’s account; and/or (iii) reject and return all or any portion of such products and/or services.
6. CHANGES Buyer shall have the right at any time to make changes within the general scope of this Purchase Agreement in any one or more of the following: (a) drawings, designs or specifications where the products to be furnished are to be specially manufactured for Buyer; (b) method of shipment or packing; (c) place and time of delivery; (d) amount of Buyer’s furnished property; (e) quality; (f) quantity; or (g) scope or schedule of services. If any changes cause an increase or decrease in the cost of, or the time required for the performance of, any work under the Purchase Agreement, an equitable adjustment shall be made to the price or delivery schedule, or both, in writing. Any Seller claim for adjustment under this clause will be deemed waived unless asserted within five (5) days from Seller’s receipt of the change or suspension notification, and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change.
7. COMPLIANCE WITH LAWS. Seller represents, warrants, certifies and covenants to Buyer that:
(a) Seller will comply with any provisions, representations or agreements, or contractual clauses required thereby to be included or incorporated by reference or operation of law in the Purchase Agreement;
(b) From time to time, at Buyer’s request, Seller shall provide certificates to Buyer relating to compliance with any applicable legal requirements, including those listed in this Section, or to update the certifications, representations and warranties in this Section, in each case in form and substance satisfactory to Buyer.
8. BUYER’S PROPERTY
(a) All tools, equipment, materials, drawings, computer programs, or other documented data of every description furnished to Seller by Buyer or paid for by Buyer, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the property of Buyer. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as “Property of Denvr” and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Buyer’s property and shall not use Buyer’s property except in filling Buyer’s orders. Buyer’s property while in Seller’s custody or control shall be held at Seller’s risk. Buyer’s property shall be subject to removal at Buyer’s written request, in which event Seller shall prepare such property for shipment and shall deliver it as directed by Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
(b) If this Purchase Agreement funds the development of any item; including without limitation any composition of matter, article of manufacture, machine, process, method, software program, or database; or results in any idea, invention, or work of authorship which may be subject to patent, copyright, trademark or trade secret protection; Seller hereby agrees to assign all right, title and interest in and to said item, idea, invention or work of authorship to Buyer. Seller shall notify Buyer of the development of such item, idea, invention, or work of authorship and shall cooperate with and assist Buyer in every reasonable way to perfect its right, title and interest, such as by executing and delivering all additional documents reasonably requested by Buyer in order to perfect, register, and/or enforce the same, and Buyer shall reimburse Seller for reasonable costs incurred by Seller in providing such assistance.
9. CUSTOMS AND TRADE Under this agreement, the Buyer will not be involved in the importation of products unless agreed otherwise in writing. All prices include duties and customs costs, and the Seller must not list the Buyer as the importer of record. If the Buyer does become the importer of record, the Seller must provide all necessary information for customs entry, ensuring accurate details on tariffs and duties. The Seller must also support the Buyer in claiming duty drawbacks and ensure no anti-dumping duties arise. The Seller is responsible for accurately indicating the country of origin on all relevant documentation and providing certificates of origin as needed. All transfers of products and data must comply with applicable laws. The Seller must notify the Buyer promptly of any tax claims and work with the Buyer to minimize any tax liabilities, provided the Seller informs the Buyer within five business days of any tax assessments. Both parties agree to collaborate on tax matters to minimize the Buyer's tax responsibilities.
10. SERVICES/LIENS; SITE RULES
(a) Seller will obtain from all of its subcontractors waivers and releases of all liens which may be imposed by them against the products provided under the Purchase Agreement or Buyer’s premises or the improvements thereon, and Seller will defend, indemnify, and hold harmless Buyer with respect thereto.
(b) Seller will conform strictly to all of Buyer’s site rules and regulations when performing services on Buyer’s premises. It is Seller’s obligation to obtain a copy of Buyer’s (or its customers’) site rules.
11. INDEMNIFICATION To the fullest extent permitted by applicable law, Seller will indemnify, release, defend and hold harmless Buyer, its subsidiaries, affiliates, licensees and assigns, and their respective officers, directors, agents, representatives, subcontractors and employees, whether acting in the course of their employment or otherwise (each, an “Indemnified Party”), from all claims, demands, losses, damages, liabilities, judgments, costs (including reasonable attorneys’ fees), expenses, liens or actions (collectively, “Claims”) incurred by or asserted against an Indemnified Party, in any manner arising out of or relating to Seller’s performance or failure to perform its obligations, Seller’s breach of any of the representations, warranties, certifications or covenants contained in the Purchase Agreement, or any products or services supplied hereunder, including without limitation Claims relating to death, personal injury, or damage to property. Seller agrees to include this clause in any subcontracts issued hereunder.
12. TERMINATION FOR CONVENIENCE Buyer may, by written notice to Seller specifying the extent of termination and the effective date, terminate the Purchase Agreement, or its purchase of any quantity of products or services thereunder, for convenience, and Buyer and Seller shall negotiate reasonable termination costs consistent with the cost of materials and labor incurred (and not otherwise mitigated) on ordered products or services prior to the date of Buyer’s termination notice, provided Seller takes all steps reasonably necessary to mitigate such costs. Seller will notify Buyer of its actual cost of such material and labor incurred within thirty (30) days after termination.
13. TERMINATION FOR CAUSE In the event:
(a) Seller fails to complete or deliver any part of the products or services hereunder when required;
(b) Seller is otherwise in breach of any material term of the Purchase Agreement;
(c) Buyer determines any of Seller’s representations, warranties, certifications or covenants to be untrue; or
(d) If the Seller can no longer operate normally, fails to meet financial obligations, enters bankruptcy, or assigns assets for creditor benefit, the Buyer can immediately terminate the Purchase Agreement without further payment to the Seller. The Seller must then compensate the Buyer for any damages incurred. Upon receiving a termination notice, the Seller must stop all work, halt further orders or subcontracts, and terminate existing subcontracts related to the work. The Seller is also required to hand over all completed work, work in progress, and related documentation to the Buyer.
14. FORCE MAJEURE Performance delays or failures due to force majeure, such as natural disasters, strikes, government actions, or pandemics, are excused under this agreement. Economic challenges or better market opportunities don't qualify as force majeure. The affected party must notify the other party promptly with details and expected duration and make reasonable efforts to resolve the issue. If the force majeure event continues for more than 30 days, either party may terminate the agreement without penalty. During a force majeure, the Buyer can source products or services from other suppliers. If the Seller’s production is impacted, they must allocate products fairly, ensuring the Buyer receives a proportional share. The Seller is also required to attempt to source alternative products at their own expense. All sourced products must meet the agreed specifications and quality standards. If the Seller cannot deliver, the Buyer has the right to procure products from other sources. The agreement seeks to balance the risks and responsibilities of both parties during unforeseen events.
15. OTHER TERMS
(a) The failure of Buyer to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Buyer thereafter to enforce each and every such provision. Any check or approval of drawings by Buyer will be for Seller’s convenience and will not relieve Seller of its responsibility to meet all requirements of the Purchase Agreement. No claim or right arising out of a breach of this order can be discharged in whole or part by a waiver of the claim or right unless the waiver is supported by consideration and is in writing signed by the aggrieved party.
(b) Any rights or remedies of Buyer set forth in the Purchase Agreement are not exclusive and Buyer also has all rights and remedies available under applicable law.
(c) Seller may not assign or subcontract its obligations hereunder without the prior written consent of Buyer, and if Seller attempts to do so, the assignment or subcontract will be void. Buyer in its sole discretion may assign its rights hereunder to its affiliates, subsidiaries, or to third party purchasers.
(d) Seller shall provide products and services hereunder as an independent contractor and not as Buyer’s agent or employee.
(e) The provisions of these Terms and Conditions which by their nature should apply beyond the expiration or termination of the Purchase Agreement will remain in force after any termination or expiration of the Purchase Agreement, to allow the parties to enforce their rights and remedies.
(f) The invalidity, in whole or in part, of any of the paragraphs of the Purchase Agreement (or any of these Terms and Conditions) shall not affect the remainder of such paragraphs or any other paragraph of the Purchase Agreement or these Terms and Conditions.