Purchase Order Terms and Conditions

2. CONDITIONS OF PERFORMANCE

(A) Acceptance:

1. 1. 1. This ORDER is BUYER’S offer to purchase the goods and/or services described on the reverse hereof from VENDOR. BUYER’S placement of this ORDER with VENDOR is expressly conditioned upon VENDOR’S acceptance of all terms and conditions of purchase contained on or attached to this ORDER.
      2. Any additional or different terms or conditions which may appear in any communication from VENDOR are hereby expressly objected to by the Contracts & Procurement Division, and no such additional or different terms or conditions in any printed form of VENDOR’S shall become part of this contract despite BUYER’S acceptance of goods or services unless agreed to in writing by BUYER.
      3. Any goods and/or services provided by VENDOR prior to issuance of a valid ORDER by BUYER shall be at VENDOR’S risk.
      4. VENDOR’S commencement of work or delivery of the goods or services subject to this ORDER shall be deemed an effective mode of acceptance of this ORDER.
      5. All goods and/or services purchased under this ORDER must be received and invoiced by December 31st of the year it is issued.
      6. When required, VENDOR shall obtain, at its own expense, proof of insurance coverage, to include worker’s compensation, property damage, public liability, personal injury and employer’s liability, and any other applicable insurance deemed necessary by BUYER. The Certificate of Insurance shall name El Paso County as additional insured and shall contain a notice of cancellation date of not less than thirty (30) days. The Contracts & Procurement Division must receive this Certificate of Insurance before an ORDER will be issued to VENDOR.

(B) Termination:

BUYER reserves the right to terminate this ORDER, or any part hereof, for its sole convenience. BUYER also reserves the right to terminate this ORDER, or any part hereof, for cause in the event of any default by VENDOR if the VENDOR fails to comply with any of the terms and conditions of this ORDER. In such event, a Notice of Termination will be served upon VENDOR. After receipt of such Notice of Termination, VENDOR will not be paid for any goods or services, or for any costs incurred by VENDOR that VENDOR could reasonably have avoided.

(C) Shipping Instructions

All goods are to be shipped freight prepaid, F.O.B. destination, unless otherwise stated. Where BUYER has so authorized in writing, goods may be shipped F.O.B. shipping point, but VENDOR shall prepay all shipping charges.

(D) Delivery:

Time is of the essence. This ORDER may be terminated if delivery is not made or services are not performed by the date specified on the reverse side hereof.

(E) Invoicing:

VENDOR shall submit invoices to billing address shown on face of ORDER. Include the ORDER number on all invoices against this order and: (1) This ORDER, along with any additional change orders, expires at midnight, December 31st of the year it is issued. This clause shall suffice as written notification for termination where a written notice is required unless this agreement is terminated earlier for any reason. (2) Financial obligations of the BUYER payable after the current fiscal year are contingent upon funds for this project/item being appropriated, budgeted and otherwise made available.

(F) Indemnification:

1. 1. 1. 1. The VENDOR hereby agrees to defend, indemnify, and hold harmless the BUYER, its appointed and elected officials, agents and employees against all liabilities. claims, judgments, suits or demands for damages to persons or property arising out of, resulting from, or relating to the Services performed under this Agreement and any actions, activities, or other conduct by VENDOR or the VENDOR’S employee upon El Paso County property (“Claims”) unless and until such Claims have been specifically determined by the trier of fact to be due to the sole negligence or willful misconduct of the BUYER. This indemnity shall be interpreted in the broadest possible manner to indemnify BUYER for any acts or omissions of the VENDOR or the VENDOR’S employees, either passive or active, irrespective of fault, including the VENDOR’S concurrent negligence whether active or passive, except for the sole negligence or willful misconduct of the BUYER.
         2. The VENDOR’S duty to defend and indemnify the BUYER shall arise at the time written notice of the Claim is first provided to the BUYER regardless of whether an action has been filed in court on the Claim.
         3. The VENDOR’S duty to defend and indemnify the BUYER shall arise even if the BUYER is the only party sued and/or it is alleged that the BUYER ‘S negligence or willful misconduct was the sole cause of the alleged damages. The VENDOR will defend any and all Claims which may be brought or threatened against the BUYER and will pay on behalf of the BUYER any expenses incurred by reason of such Claims including, but not limited to, court costs and attorney fees incurred in defending and investigating such Claims or seeking to enforce this indemnity obligation. Such payments on behalf of the BUYER shall be in addition to any other legal remedies available to BUYER and shall not be considered the BUYER’S exclusive remedy.
         4. Insurance coverage requirements specified in this contract shall in no way lessen or limit the liability of the VENDOR under the terms of this indemnification obligation. The VENDOR shall obtain, at its own expense, any additional insurance that it deems necessary for the BUYER’S protection.
         5. These defense and indemnification obligations of the VENDOR shall survive the expiration or termination of this contract.
         6. Nothing in this section shall be deemed to waive or otherwise limit the defenses available to the BUYER pursuant to the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. or otherwise provided by law.

(G) Taxes:

The BUYER is exempt from all Federal, State and local taxes. A tax-exempt certificate will be supplied upon request.

(H) Assignment:

VENDOR shall not assign this contract, or the right to payment due hereunder, without BUYER’S prior written consent.

(I) Leins, Claims and Encumbrances:

VENDOR warrants and represents that all goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of every kind.

(J) Inspection/Rejection:

All goods and services purchased hereunder are subject to BUYER’S inspection and approval. Payment for the goods delivered or services performed shall not constitute acceptance thereof. BUYER shall have the right to inspect such goods or services and to reject any or all that are, in BUYER’S judgement, defective or non-conforming.

(K) Warranties:

VENDOR warrants and guarantees to the BUYER that the items furnished under this ORDER are free from all defects in workmanship and materials. The VENDOR further warrants and agrees to remedy any defects found and replace the item(s), if necessary, at its expense and at no cost to the BUYER.

(L) Infringements:

VENDOR warrants that BUYER’S purchase, installation, and/or use of goods or services covered hereby will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise, or other intellectual property right.

(M) Drawings or Specifications:

Any drawing or specifications prepared by VENDOR are to become the property of BUYER and shall be marked “Property of El Paso County” and shall be stored separately when not in use. Such drawings or specifications will be sent to the Contracts & Procurement Division, 15 E. Vermijo Avenue, Colorado Springs, CO 80903, ATTN: Division Manager, when ORDER is completed.

(N) Law:

The laws of the State of Colorado shall govern this ORDER, and the venue of any action brought hereunder may be laid in or transferred to the County of El Paso, State of Colorado.