TERMS AND CONDITIONS TO PURCHASE ORDER
(1) Applicability. The purchase order to which these terms and conditions are attached (the “Purchase Order”) is an offer by Zanskar Operating Company, LLC or its affiliate stated on the Order (the “Buyer”), for the purchase of the goods, materials, equipment, products or other items specified on the Purchase Order (the “Products”) and certain services and work specified on the Order (the “Services”) from the party to whom the Purchase Order is addressed (the “Vendor”, and, together with Buyer, each a “Party” and collectively, the “Parties”) in accordance with and subject to these terms and conditions (these “Terms”, and together the Purchase Order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Vendor’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Vendor’s general terms and conditions of sale, provision of services, or any other document issued by Vendor in connection with this Order. These Terms apply to any repaired or replacement Products or corrected or re-performed Services provided by Vendor hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
(2) Acceptance. This Order is not binding on Buyer until Vendor provides to Buyer a countersigned copy of this Order or starts to perform in accordance with the Order. If Vendor does not provide to Buyer a countersigned copy of this Order or provide written notice that it has commenced performance within 5 days of Vendor’s receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Vendor.
(3) Delivery. Vendor shall deliver the Products to the location(s), in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the Parties (the “Delivery Date”). Timely delivery of the Products is of the essence. If Vendor fails to deliver the Products in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Vendor and Vendor shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Vendor’s failure to deliver the Products on the Delivery Date. Buyer has the right to return any Products delivered prior to the Delivery Date at Vendor’s expense and Vendor shall redeliver such Products on the Delivery Date.
(4) Performance of Services. Vendor shall provide the Services to Buyer as described in, and in accordance with the dates or schedule set forth in, the Order and in accordance with these Terms. Vendor acknowledges that time is of the essence in the performance of the Services, including all dates, timetables, project milestones in the Order.
(5) Packing; Shipping; Documentation. All Products shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Vendor must provide Buyer written notice in advance of shipment if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Vendor’s sole cost and expense. Delivery shall be made Delivery at Place Unloaded Delivery Location, Incoterms® 2020 and in accordance with the terms on the face of this Order. Vendor shall give written notice of shipment to Buyer when the Products are delivered to a carrier for transportation. Vendor shall provide Buyer all shipping documents, including the commercial invoice, packing list (a copy of which shall also be transmitted to Buyer prior to shipment), and one (1) original and two copies of all bills of lading and/or air waybills, and any other documents necessary to release the Products to Buyer within one (1) business day after Vendor delivers the Products to the transportation carrier. The Order number, Delivery Location, Buyer name, and name of project must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order. For all Products delivered pursuant to this Order, Vendor shall deliver to Buyer Material Safety Data Sheets for each Product and components thereof at least five (5) days prior to shipment of such Products.
(6) Title and Risk of Loss. Title passes to Buyer upon delivery of the Products to the Delivery Location. Vendor bears all risk of loss or damage to the Products until delivery of the Products to the Delivery Location.
(7) Inspection and Rejection of Nonconforming Products. Buyer has the right to inspect the Products on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind the Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products. If Buyer requires replacement of the Products, Vendor shall, at its expense, promptly but in any event within seven (7) days replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Vendor fails to timely deliver replacement Products, Buyer may replace them with Products from a third party and charge Vendor the cost thereof and terminate this Order pursuant to Section 15. Any inspection or other action by Buyer under this Section 7 shall not reduce or otherwise affect Vendor’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
(8) Price and Payment.
(a) Price. The price of the Products and Services is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Vendor’s published price list in force as of the date of the Order, including any applicable volume or customer discounts. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price after the date of this Order is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
(b) Payment. Vendor shall issue an initial invoice to Buyer on or any time after the completion of delivery of the Products or performance of the Services and only in accordance with the Terms. In the even the Products are delivered in multiple shipments, Vendor shall submit a separate invoice for each shipment, and label such invoice as “Partial Billing” or “Final Billing” as applicable. Buyer shall pay all properly invoiced amounts due to Vendor within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars and made by Buyer or its affiliate to the account provided in writing by Vendor at the time of issuance of Vendor’s invoice. In the event of a payment dispute, Buyer shall deliver a written statement to Vendor no later than the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 8(b). The Parties shall seek to resolve all such disputes expeditiously and in good faith by commercial negations and failing such commercial resolution pursuant to Section 17(c). Vendor shall continue performing its obligations under the Order during the pendency of any such dispute.
(c) Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor under the Order.
(9) Vendor’s Obligations Regarding Services. Vendor shall:
(a) Perform all Services in a good and workmanlike manner with the degree of skill and care ordinarily exercised by service providers performing services similar to the Services, but in no event with less than a reasonable degree thereof;
(b) Unless otherwise stated in the Order, provide all materials, equipment, tools and personnel, which personnel shall be competent, skilled, experienced, properly qualified and trained, and sufficient in quantity to perform the Services they are providing, in connection with the Services;
(c) before the date on which the Services are to start, obtain, and at all times during the term of this Order, maintain, all necessary licenses and permits and comply in all material respects with all laws applicable to the provision of the Services;
(d) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and health, safety and environmental policies of Buyer or its affiliate, including attending safety trainings and the wearing of any personal protective equipment;
(e) maintain complete and accurate records relating to the provision of the Services under this Order, including records of the time spent and materials used by Vendor in providing the Services in a form reasonably acceptable to Buyer. During the term of this Order and for a period of eighteen (18) months following completion of the Services, upon Buyer's written request, Vendor shall allow Buyer to inspect and make copies of such records in connection with the provision of the Services;
(f) obtain Buyer’s written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer's approval shall not relieve Vendor of its obligations under the Order, and Vendor shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Vendor subcontractor or supplier;
(g) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Order, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;
(h) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
(i) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and
(j) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer's written instructions or authorization.
(10)Warranties.
(a) Vendor warrants to Buyer that for the longer of eighteen (18) months from the Delivery Date for Products or twelve (12) months form the completion of Services, all Products and Services will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer in the Order; (iii) be fit for their intended purpose and operate as intended; (iv) be free and clear of all liens, security interests or other encumbrances; and (iv) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer
(b) These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Products or Services with the foregoing warranties. If Buyer gives Vendor notice of noncompliance with this Section 10, Vendor shall, at its own cost and expense, (i) promptly but in any event within seven (7) days, replace or repair the defective or nonconforming Products or reperform the defective Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Vendor and the delivery of repaired or replacement Products to Buyer.
(11)Indemnification.
(a) General. Vendor shall indemnify, defend and hold harmless Buyer and its affiliates and their respective stockholders, members, managers, directors, officers, employees, agents, representatives, affiliates, successors and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, investigations, arbitrations, mediations, judgments, settlements, interests, awards, penalties, fines, costs, or expenses of whatever kind or character, including reasonable attorneys’ fees, court costs and expenses, and all other fees and expenses in connection with enforcing any right to indemnification under this Order and the cost of pursuing any insurance providers, incurred by or alleged against Indemnified Party (collectively “Losses”) arising out of or occurring in connection with: (a) the provision of the Products or Services; (b) illness, injury or death of any of Vendor’s personnel, employees, contractors and service providers; (c) damage to or destruction of the Products prior to delivery or any of Vendor’s equipment, machinery, or other property; or (d) Vendor’s or its affiliates’, personnel’s, employees’, contractor’s negligence, gross negligence, willful misconduct or material breach of this Order, including any representation or warranty made by Vendor herein. Vendor shall not enter into any settlement without Buyer’s or Indemnified Party’s prior written consent.
(b) Intellectual Property. Vendor shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnified Party against any and all Losses arising out of or in connection with any claim that Buyer’s or any Indemnified Party’s use or possession of the Products or any of the of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Vendor enter into any settlement without Buyer’s or and Indemnified Party’s prior written consent.
(12)Limitation of Liability; Waiver of Certain Damages. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND OR CHARACTER, INCLUDING LOST PROFIT OR LOSS OF BUSINESS OPPORTUNITY, UNDER WHATEVER CAUSE OF ACTION, WHETHER CONTRACT OR TORT (INCLUDING NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, OR STRICT LIABILITY), ARISING OUT OF THIS ORDER.
(13) Insurance. From acceptance of this Order until delivery to the Delivery Location of the last shipment hereunder or the completion of the Services, Vendor shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, the coverages set forth in Section 13(a), in each case, with financially sound and reputable insurers. Upon Buyer’s request, Vendor shall provide Buyer with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in this Order. Vendor shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in any Vendor’s insurance policy. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer and any Indemnified Party.
(a) Vendor shall maintain the coverages in the amounts listed below, subject to this Section 13:
(i) Workers’ Compensation in statutorily prescribed amounts;
(ii) Comprehensive General Commercial Liability (including products liability) with limits of not less than $2,000,000 in the aggregate and $1,000,000 per occurrence;
(iii) Bodily injury with limits of not less than $500,000 per occurrence and in the aggregate;
(iv) Property Damage with limits of not less than $200,000 per occurrence and in the aggregate;
(v) Contractual Liability with limits of not less than $200,000 per occurrence and $500,000 in the aggregate; and
(vi) Automobile Liability with combined bodily injury and property damage limits of not less than $500,000 per occurrence and in the aggregate.
(14) Compliance with Laws. Vendor is in compliance with and shall comply with all applicable laws, regulations and ordinances in each case, in all material respects. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Vendor shall comply with all export and import laws of all countries involved in the sale of Products under this Order. Vendor assumes all responsibility for shipments of Products requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Products.
(15) Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause on written notice to Vendor. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Products or the Vendor’s completion of the Services, if Vendor has not performed or complied with any of these Terms, in whole or in part. If Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Vendor. If Buyer terminates the Order for any reason, Vendor’s sole and exclusive remedy is payment for the Products received and accepted and Services accepted by Buyer prior to the termination.
(16) Force Majeure. As used in this Order “Force Majeure” shall mean any event or circumstance or combination of events or circumstances (each, a “Force Majeure Event”) that prevents any Party from performing its obligations in accordance with the terms of this Order, but only if and to the extent that such events and circumstances are not within the affected Party’s reasonable control. Force Majeure events shall include but are not limited to: act of God; fire, storm of an unusual or extraordinary nature, flood, hurricane, tornado, earthquake, epidemic or pandemic (excluding any effects of the SARS-CoV-2 or the Coronavirus in effect as of the date of this Order), or other natural disaster; action, delay or inaction of any governmental authority, court or regulatory body; war, invasion, emergency, embargo, sanction, sabotage, insurgency, terrorism, civil war, riot or insurrection; lock-out, strike, or other labor dispute. Notwithstanding the foregoing, the following shall not constitute a Force Majeure Event: (i) inability to obtain or delay in obtaining raw materials, (ii) any increase in price of Vendor’s material suppliers, (iii) Vendor’s ability to obtain a more favorable price from another customer, or (iv) economic hardship. Any obligation of either Party under this Order shall be excused only to the extent that the Party’s inability to perform is caused by Force Majeure. Each Party shall use all reasonable efforts to cure, minimize, mitigate or remedy the effects of Force Majeure. Notwithstanding that Force Majeure may otherwise exist, a Force Majeure Event shall not excuse or delay the payment of money when due under this Order by any Party.
(17) Miscellaneous.
(a) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given (i) upon actual receipt, if given by personal delivery, (ii) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, or (iii) one business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective Parties at their physical or email address set forth on the Order; provided that if a physical notice or other communication is circulated, the same shall also be sent by email. Either Party may change or update such Party’s notice address by delivery of written notice to the other Party pursuant to this Section 17.
(b) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or venture, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
(c) Governing Law; Venue; Jurisdiction. THIS ORDER, AND ALL CLAIMS ARISING HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF UTAH. ALL DISPUTES MAY BE REDRESSED BY RESORT TO LEGAL PROCESS IN THE FEDERAL COURTS OF THE DISTRICT OF UTAH OR THE STATE COURTS OF THE STATE OF UTAH LOCATED IN SALT LAKE COUNTY, UTAH. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SOLE AND EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND EACH IRREVOCABLY WAIVES ANY OBJECTION TO THE PERSONAL JURISDICTION OR VENUE OF SUCH COURTS.
(d) Entire Agreement. This Order represents the entire agreement of the Parties concerning the subject matter hereof and supersedes all prior agreements between the Parties, and no other agreement, written or oral, exists between the Parties concerning the subject matter hereof.
(e) Waiver. Subject to applicable statutes of limitation, no failure or delay, in whole or in part, by either Party in exercising any right hereunder shall operate as a full or partial waiver of such right.
(f) Amendment. No amendment, modification or change to this Agreement shall be enforceable against either Party unless reduced to writing and executed by both Parties.
(g) Assignment. This Agreement may not be assigned, subcontracted or delegated by Vendor without the prior written consent of Buyer.
(h) No Third Party Beneficiaries. This Order is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
(i) Remedies Cumulative. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
(j) Severability. If any provision of this Order shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be deemed severed from this Order, and the legality, validity and enforceability of all other provisions of this Order shall not be affected thereby.
(k) Survival. The provisions of this Order shall survive any expiration or termination thereof for so long as necessary to give effect to the intent of the Parties, but in no event to exceed any applicable statutes of limitation.
(l) Counterparts. This Order may be executed and delivered in counterparts, including by electronic signature and delivery, each of which shall be deemed to be an original and all of which shall constitute one and the same document.
(m) Confidentiality. Any information belonging to Buyer that is confidential and disclosed to Vendor in the course of performance of this Order or has been disclosed during the negotiations leading up to this Order (collectively, the “Confidential Information”), shall be held in confidence and shall not be disclosed to others without the written approval of Buyer. Confidential Information is not information that (i) is already known to Vendor at the time of disclosure by Buyer, (ii is now or hereafter becomes available within the public domain other than as a result of a breach of this Order, (iii) is received by Vendor from a person under no obligation to keep the Confidential Information confidential, or (iv) is independently developed by Vendor without reliance on Confidential Information. A Party shall also have the right to disclose Confidential Information without the consent of Buyer in connection with a subpoena, interrogatory, request for production, civil investigative demand or other such legal process issued by any court or administrative, legislative, investigative or regulatory body, but only to the extent necessary to fully respond thereto and after providing prior written notice to the Buyer. Upon the reasonable request of Buyer, Vendor shall, in its sole discretion, either return the Confidential Information or destroy it, provided that Vendor may retain a copy of Confidential Information, which shall remain subject to the confidentiality and non-disclosure obligations set forth herein, as necessary to comply with applicable law.