• Price
• Terms of Payment
• Termination
• Late Shipments
• Changes
• Packing and Shipping
• Delivery
• Risk of Loss
• Inspection
• Offer / Acceptance
• Safety Information
• Warranties
• Buyer Ownership
• Quality
• Sub-Contracts
• Indemnification
• Insurance
• Independent Contractor
• Proprietary / Trade Secret
• General




THESE STANDARD TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE INTO THE ATTACHED PURCHASE ORDER BETWEEN CHECKERS INDUSTRIAL PRODUCTS, LLC OR RIMSTAR, LLC (“BUYER”) AND THE ENTITY TO WHOM THIS PURCHASE ORDER (“PO”) IS DIRECTED (“SUPPLIER”). The terms and conditions shall be deemed to have been accepted upon first performance by the Supplier of its obligations under the PO.

1.   PRICE:  If price is not stated in this PO the price for Supplier’s services, goods or products (collectively, “Products”) will be Supplier’s lowest prevailing market price.  All price increases and surcharges must be submitted with a reasonable explanation in writing to the Buyer and approved by the Buyer 60 days in advance before the new price takes effect.  The PO must not be filled at a price higher than shown on the face of this PO.  Supplier warrants to Buyer that the prices for the Products sold to Buyer under this PO are not less favorable than those currently extended to any other customer for the same or like goods in equal or less quantities.  If Supplier reduces its price for such Products during the term of this PO, Supplier shall correspondingly reduce the price of the Products sold thereafter to Buyer under this PO.

2.   TERMS OF PAYMENT:  Unless this PO states otherwise or the parties have otherwise agreed in writing, the terms of payment will be net 45 days after Buyer receives Supplier’s invoice. 

3.  TERMINATION:  This PO may be terminated by Buyer with or without cause.  In the event Buyer terminates without cause, Buyer will compensate Supplier for the actual and reasonable expenses incurred by Supplier for work in process up to and including the date of termination, provided such expenses do not exceed the agreed upon price.

4.   LATE SHIPMENTS:  In this PO and in any contract arising therefrom, time shall be of the essence.  If Supplier fails to deliver on time, Buyer may purchase replacement goods elsewhere and Supplier will be liable for any actual and reasonable costs and damages Buyer incurs.  Supplier will promptly notify Buyer if it is unable to comply with the delivery date specified in this PO.

5.   CHANGES:  Buyer reserves the right at any time to change by written notification any of the following: (a) specifications, drawings and data incorporated in this PO where the items to be furnished are to be specifically manufactured for Buyer; (b) quantity; (c) methods of shipment or packaging; (d) place of delivery; (e) time of delivery; and (f) any other matters affecting this order.  If any change by Buyer causes an increase or decrease in the cost of or the delivery schedule for the PO, Buyer will make in writing an equitable adjustment in the contract price or delivery schedule, or both.  Any claim by Supplier for adjustment under this clause shall be deemed waived unless asserted in writing within seven (7) days from Supplier’s receipt of the written change notice from Buyer.

6.  PACKING AND SHIPPING:  Except as otherwise stated in writing by Buyer in connection with the PO: (a) all Products shall be packed and shipped by Supplier in accordance with Buyer’s instructions (if any) and good commercial practice, so as to assure that no damage will result from handling, weather or transportation; (b) a detailed packing slip or equivalent document, which includes a description of the items, quantity, and the date the Products were shipped, must accompany every shipment of Products; and (c) Buyer’s PO number must appear on each such document and each shipping container.  All Products shipped must conform exactly to the PO, and substitution will not be permitted without Buyer’s prior written approval.  If Supplier fails to comply with Buyer’s shipping instructions located on the PO, Supplier will be responsible for paying in full any shipping costs associated with compliance.

7.   DELIVERY:  Supplier shall deliver all Products strictly according to the schedule and instructions specified or referred to in the PO.  Products shipped in advance of schedule without Buyer’s prior written approval may be returned to Supplier at Supplier’s expense.  Upon any failure of Supplier to deliver as agreed, Buyer may cancel the PO in whole or in part and be relieved of all liability for any undelivered Products in addition to any other rights or remedies.

8.   RISK OF LOSS:  Risk of any loss or damage to the Products shall pass from Supplier to Buyer upon delivery of Products to Buyer in conformance with the provisions of the PO.  Passing of title to Buyer in connection with such delivery shall not constitute acceptance of the Products by Buyer or relieve Supplier of any of its obligations under the PO.

9.   INSPECTION:  Buyer shall have the right to inspect and approve the Products within a reasonable time after delivery irrespective of payment date.  The making or failure to make any inspection of the Products shall in no way impair Buyer’s warranty rights or its right to reject nonconforming or defective Products, nor be deemed to constitute acceptance by Buyer of the Products or any part thereof, or affect in any way Supplier’s obligations under the PO.  Buyer may reject Products not in accordance with the specifications or Supplier’s express or implied warranties (“Nonconforming Products”) or may accept some and reject other Nonconforming Products, at its option.  All rejected Products shall be held at Supplier’s risk.  Buyer may return rejected Products to Supplier at Supplier’s risk and expense and Buyer shall have no further obligation for such rejected Products.  Payment for any Products shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected Products.

10.   OFFER/ACCEPTANCE:  The terms and conditions of the PO, supplemented by these terms and conditions, set forth the entire agreement between the parties and supersede all previous communication, representation or agreements, whether oral or written, between the parties.  This PO is an offer to buy, subject to Supplier’s acceptance, which must be demonstrated by either performance of the PO or by a formal acknowledgment in writing.  Any counter-offer to sell is automatically construed as a cancellation of this PO unless a change order is issued accepting a counter-offer.  If Supplier’s form(s) or part(s) of forms are included in, or as an attachment to, any bid, proposal, offer, acknowledgment, or otherwise, Supplier agrees that, in the event of inconsistencies or contradictions, the terms and conditions of the PO and these terms and condition shall supersede and control over those contained in the Supplier’s form(s), regardless of any statement to the contrary in Supplier’s form(s).

11.   SAFETY INFORMATION:  All chemicals, equipment and materials proposed and/or used in the performance of this PO must conform to the current state and federal standards including those standards required by the Occupational Safety and Health Act of 1970.  Supplier must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery.

12.   WARRANTIES:  Supplier warrants to Buyer that all Products covered by this PO shall conform to the specifications, drawings, samples or other descriptions specified by Buyer or if none are specified, to Supplier’s standard specifications for such Products.  Supplier also warrants to Buyer that all Products shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defect.  Buyer’s inspection, test, acceptance or use of the Products shall not affect Supplier’s obligations under these warranties.  Supplier shall replace or correct, at Buyer’s option and at Supplier’s cost, defects of any Products not conforming to these warranties.  If Supplier fails to correct defects in or replace Nonconforming Products within ten (10) days from the date the Buyer notifies Supplier of the defect or defects, Buyer may, upon ten (10) days prior written notice to Supplier, either (i) make such corrections or replace such Products and charge Supplier for all costs incurred by Buyer, or (ii) revoke its acceptance of the Products in which event Supplier shall be obligated to refund the purchase price and make all necessary arrangements, at Supplier’s costs, for the return of the Products to Supplier.  All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of the PO and are in addition to any warranties stipulated in the specifications.

13.   RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE OR OTHER INTELLECTUAL PROPERTY (BUYER OWNERSHIP):  Unless otherwise agreed in writing, any software, research, reports, studies, data, photographs, negatives, video or other documents, drawings or materials delivered by Supplier in the performance of its obligations under this PO shall be the exclusive property of Buyer.  The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.  In the event any article sold or delivered under this PO is covered by any patent, copyright, trademark, or application therefor, Supplier will indemnify and hold harmless Buyer from any and all loss, liability, cost, expenses and legal fees incurred on account of any claims, legal actions, or judgments arising out of manufacture, sale or use of such article in violation, infringement or the like of rights under such patent, copyright, trademark or application.

14.   QUALITY:  Buyer will be the sole judge in determining “equals” with regard to quality, price and performance.  All products delivered shall be newly manufactured and of the manufacturer’s current model, design or specification unless otherwise specified.

15.   SUB-CONTRACTS:  Should Supplier utilize a sub-contractor in fulfilling its obligation under this PO, Supplier will be solely responsible for the performance of such sub-contractor whether or not the sub-contractor was referred or recommended by Buyer.  Supplier will provide sub-contractor with a copy of these terms and conditions and secure the agreement of the sub-contractor to adhere thereto.

16.   INDEMNIFICATION:  Supplier shall defend, indemnify and hold Buyer, its owners, agents, managers, representatives, officers, employees and other affiliates, at Supplier's sole cost and expense, harmless from all liability, costs and expenses, including attorney's fees, arising from any death, personal injury or property damage caused in whole or in part by Supplier's acts or omissions.  Supplier agrees to obtain and maintain at all times during the term of this PO sufficient insurance to cover any loss of Buyer’s property in its possession which may be required to produce the Products or otherwise provide the service(s) hereunder.

17.   INSURANCE: Supplier and its subcontractors shall provide Buyer evidence of liability insurance coverage evidenced by a certificate of insurance naming Buyer as an additional insured in the amount of no less than One Million and 00/100 Dollars ($1,000,000.00). 

18.   INDEPENDENT CONTRACTOR.  Supplier is independent of Buyer and is not by this Agreement required to work exclusively for Buyer during the term hereof.  Nothing in this Agreement shall create, or be construed to create, any employment, joint venture, or partnership relationship between Buyer and Supplier or be construed to combine the business operations of the parties.  SUPPLIER IS AND SHALL BE SOLELY LIABLE FOR ANY FEDERAL AND STATE INCOME TAXES AND WITHHOLDING, UNEMPLOYMENT TAXES, FICA CONTRIBUTIONS, WORKERS’ COMPENSATION PAYMENTS AND PREMIUMS APPLICABLE TO SUPPLIER OR ANY SERVICES PROVIDED BY SUPPLIER HEREUNDER.  SUPPLIER SHALL INDEMNIFY BUYER FOR ANY LIABILITY RESULTING FROM NONPAYMENT OF SUCH TAXES AND SUMS.  THE REQUIREMENTS OF THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.  SUPPLIER HEREBY AGREES THAT BUYER SHALL NOT BE OBLIGATED TO PROVIDE SUPPLIER WITH VACATION PAY, DISABILITY INSURANCE, WORKERS’ COMPENSATION INSURANCE OR ANY BENEFIT ARISING FROM AN EMPLOYMENT RELATIONSHIP.

19.   CONFIDENTIAL, PROPRIETARY AND TRADE SECRET INFORMATION AND MATERIALS.  Buyer and Supplier shall each keep confidential and protect from unauthorized use and disclosure all (a) confidential, proprietary, and/or trade secret information; (b) tangible items containing, conveying or embodying such information; and (c) tooling identified as being subject to this PO or obtained, directly or indirectly, from the other in connection with this PO (collectively referred to as a “Proprietary Information and Materials”).  Buyer and Supplier shall each use Proprietary Information and Materials of the other only in the performance of and for the purpose of this PO.  However, despite any other obligations or restriction imposed by this article, Buyer shall have the right to use, disclose and reproduce Supplier’s Proprietary Information and Materials, and make derivative works thereof, for the purposes of testing, certification, use, sale or support of any product delivered under this PO.  Any such use, disclosure, reproduction or derivative work by Buyer shall, whenever appropriate, include a restrictive legend suitable to the particular circumstances.  The restrictions on disclosure or use of Proprietary Information and Materials by Supplier shall apply to all materials derived by Supplier or others from Buyer’s Proprietary Information and Materials.  Upon Buyer’s request at any time, and in any event upon the completion, termination or cancellation of this contract, Supplier shall return to Buyer all of Buyer’s Proprietary Information and Materials and all materials derived therefrom, unless specifically directed otherwise in writing by Buyer.  Supplier shall not, without the prior written authorization of Buyer, sell or otherwise dispose of (as scrap or otherwise) any parts or other materials containing, conveying, embodying or made in accordance with or by reference to any Proprietary Information and Materials of Buyer.  Prior to disposing of such parts or other materials as scrap, Supplier shall render them unusable.  Buyer shall have the right to audit Supplier’s compliance with this article.  Supplier may disclose Proprietary Information and Materials of Buyer to its subcontractors as required for the performance of this PO, provided that each such subcontractor first agrees in writing to the same obligations imposed upon Supplier under this article relating to Proprietary Information and Material.  Supplier shall be liable to Buyer for any breach of such obligation by such subcontractor.  The provisions of this Section 19 shall survive the performance, completion, termination or cancellation of this PO.  To the extent executed, the parties hereby incorporate the terms and conditions of the Non-Disclosure Agreement, which shall not be superseded by this provision.

20.  GENERAL:  (a) The laws of the State of Colorado will exclusively govern any dispute between Supplier and Buyer and all disputes arising hereunder will be venued in the State of Colorado; (b) Supplier may not assign this Agreement without the prior written consent of Buyer.  (c) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. (d) If any of the provisions contained herein are deemed illegal or unenforceable, such determinations shall not affect the validity of the remaining terms and conditions and the remaining terms will continue in force and effect to the fullest extent permitted under applicable law. (e) Buyer reserves the right to correct all typographical, computation or other errors in quotations, PO’s or otherwise. (f) This Agreement supersedes and replaces any prior terms and conditions or similar Agreements of any kind whatsoever that Supplier may have been subject to.  

May 2011