Purchase Order – Terms and Conditions

1. Definitions. These Terms and Conditions of Purchase Order are referred to below as “these Terms and Conditions.” “Buyer” means Plateau Equipment Brokers, LLC d/b/a Plateau Equipment. “Seller” means the vendor identified in the Purchase Order, its subsidiaries, and when it does business under any assumed business name selling goods to Buyer. These Terms and Conditions and the Purchase Order into which they are incorporated are referred to collectively below as the “Purchase Order.” The goods to be purchased by Buyer under the Purchase Order are referred to below as the “Goods.” 

2. Entire Contract. Goods purchased from the Seller will be confirmed with a Purchase Order from the Buyer. The Purchase Order and the acceptance of it shall be considered a contract in the state in which Buyer’s office shown of the face of the Purchase Order is located, and the contract shall be governed by the laws of that state. Unless a separate written agreement is signed by both parties, the entire contract between Buyer and Seller is contained in the Purchase Order, except such other terms as may be specifically incorporated in the Purchase Order by reference. 

3. Acceptance. Any additional or different term or condition stated by Seller in any acknowledgement form, or in otherwise acknowledging or accepting the purchase order, is deemed by Buyer to be a material alteration of the Purchase Order and is hereby objected to by Buyer. Buyer rejects any such additional or different terms or conditions not specifically accepted by Buyer in writing. 

4. Seller’s Warranties. Seller warrants that all Goods sold hereunder or pursuant hereto shall conform to the specifications set forth in the Purchase Order. Seller also warrants and represents that all Goods (a) will be of merchantable quality, free from all defects in design, workmanship and materials; (b) are free and clear of all liens and encumbrances; (c) do not infringe or misappropriate any third party’s patent or other intellectual property rights; (d) will be fit for the particular purposes for which they are purchased; and (e) shall be provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer. Seller represents and warrants that all Goods furnished to Buyer will comply with and be manufactured, priced, sold, and labeled in compliance with all applicable federal, state, and local laws, rules, ordinances, regulations, government standards, and codes, including without limitation, health and safety, environmental protection, labor, consumer product safety regulations and labeling requirements, and the Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S. C. 6901 et seq. Seller further represents and warrants that all Goods furnished to Buyer shall comply with all United States laws and regulations applicable to trademark, trade secret, copyright, and patent rights. Seller represents and warrants that all Goods are and will be manufactured, processed, labeled, packaged, accurately marked, tagged, tested, certified, inspected, shipped and sold in compliance with all legal requirements, including by way of example all legal requirements relating to labor, health, safety, environment, labeling, country of origin designation and Customs requirements; toxic substances, OSHA, CPSC and EPA regulations; and the requirements of California Proposition 65. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Purchase Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Seller shall include an itemized list of Goods, and Safety Data Sheets with each shipment. Seller represents and warrants that the Goods may be transported and introduced into interstate commerce. 

5. Seller’s Liability. Seller is responsible for the cost of replacing defective and/or nonconforming Goods as specified in the Buyer’s Purchase Order following rejection by Buyer. Seller shall be liable to Buyer for all damages arising from defects, nonconformity of the Goods, delays in shipments and any other misrepresentation or breach by Seller, including but not limited to incidental and consequential damages. 

6. Indemnification. Seller agrees to defend, indemnify and hold harmless Buyer, Buyer’s customers, members, officers, directors, managers, employees and affiliates (each an “Indemnitee”) from any and all claims, losses, damages, costs and legal fees of any nature whatsoever, including but not limited to consequential or incidental damages (“Losses”), arising out of or incurred in connection with the Goods purchased from Seller, Seller's breach of the Purchase Order, or Seller’s acts or omissions, including any negligent act or omission of Seller, its agents, employees, subcontractors, or any other persons directly or indirectly acting on behalf of them. The indemnified Losses shall include, without limitation, those losses incurred as a result of any violation of any law, regulation, or order; bodily injury, death or property damage; breach of warranty; representation or misrepresentation regarding a product’s attributes or performance ability. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. 

7. Insurance. Seller agrees to maintain, in force, insurance coverage for the indemnity obligations set forth in above, including general and contractual liability insurance. Seller shall provide evidence of such coverage to Buyer at Buyer’s request. 

8. Set-Off. Buyer and Seller agree that Buyer may deduct and set-off from any sums due and owing Seller amounts equal to the costs, damages and losses that Buyer has incurred as a result of the failure of the Goods to comply with the specifications and/or any breach of this or any other contract by Seller. 

9. Extra Charges. No extra charges of any kind will be allowed for Buyer’s account unless specifically agreed to by Buyer. 

10. Inspection/Claims. Final acceptance or rejection of the Goods shall be made as promptly as practical after delivery to the ultimate destination, except as otherwise provided in the Purchase Order. Failure to inspect, accept or reject the Goods or failure to detect defects by inspection shall neither relieve Seller from responsibility for the Goods nor impose liabilities on the Buyer. 

11. Recalls; Safety Notices. If all or any portion of the Goods are the subject of a recall (or safety notice) or other action required to bring the Goods into compliance with the specifications, the Purchase Order or these Terms and Conditions whether initiated by Buyer, Seller, or a government or consumer protection agency, Seller shall be responsible for all costs and expenses associated with the recall, notice or action and shall promptly reimburse Buyer for all actual costs and expenses incurred by Buyer in recalling, publishing notices about, shipping and/or destroying the Goods (and where applicable, any products with which the Goods has been packaged, consolidated or commingled), including refunds to customers and Seller’s net landed cost of unsold Goods. 

12. Title; Risk of Loss. Title to the Goods and risk of loss shall pass to Buyer at time of delivery of Goods to the required location and acceptance by Buyer of such Goods. 

13. Changes. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and the Purchase Order shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph. 

14. Force Majeure and Cancellation. The Purchase Order can be cancelled or rescinded only by a writing signed by both of the parties, except as otherwise expressly provided in these Terms and Conditions. In the event of United States or foreign government intervention, trade restrictions, and/or quotas which may delay or prevent delivery of the Goods or any part thereof, Buyer, at Buyer’s option, may cancel purchase of Goods without liability. In the event any of the Goods become subject to any governmental fees or duties not presently in effect, or to any increase in any existing fee or duty, including any antidumping duty or countervailing duty, Buyer, at Buyer’s option, may cancel the unshipped balance of the Goods without liability. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within five days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty days following written notice given by it under this Section 24, the other party may thereafter terminate this Agreement upon five days' written notice. 

15. Seller Compliance. The Seller agrees to comply with the following: A) Executive Order 11246 as amended and all regulations promulgated pursuant to that Executive Order including but not limited to the provisions of paragraphs (1) through (7) of the “Equal Opportunity Clause” and the “Certification of Nonsegregated Facilities”, each of which is incorporated herein by reference, B) Section 503 of the Rehabilitation Act of 1973 including the applicable parts of the affirmative action clause entitled “Affirmative Action for Handicapped Workers” (41 CFR 60-741.4) incorporated by reference, C) The Vietnam Era Veterans Readjustment Assistance Act (30 USC §2012) including the applicable parts of the affirmative action clause entitle “Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era” (41 CFR 60-250.4) incorporated herein by reference, D) Executive Order 13496 “Notification of Employee Rights Under Federal labor laws” (29 CFR Part 471, Appendix A to Subpart A) also incorporated herein by reference, E) Seller agrees to comply with all applicable commercial and public anti-bribery laws, including, without limitation, the US Foreign Corrupt Practices Act, the Canadian Corruption of Foreign Public Officials, and the UK Bribery Act and F) Seller hereby represents and warrants that neither Seller, nor any persons or entities holding any legal or beneficial interest whatsoever in Seller, are (i) the target of any sanctions program that is established by Executive order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (ii) designated by the President of OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, The International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, The Patriot Act, Public law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated nationals and Blocked Persons.” If the foregoing representation is untrue at any time, an event of default will be deemed to have occurred without the necessity of notice to Seller. 

16. Default. Time is of the essence. The Goods are to be made available to Buyer for shipment within the shipping period stipulated in the Purchase Order or as otherwise specified and agreed to by Buyer in writing. In the event Seller fails to make shipment strictly in accordance with the delivery terms of the Purchase Order or Buyer’s change order, Buyer, at Buyer’s option, may cancel the unshipped balance of the Goods without liability, and pursue any and all remedies at law or in equity for breach of contract against Seller. 

17. Dispute Resolution. Except as specifically set forth in this Section 17, any claim of any kind that arises out of or relates to the Purchase Order, or to the interpretation or breach thereof, shall be brought solely in the state court sitting within the county in which Buyer’s office is located as shown on the face of the Purchase Order. However, at Buyer’s option, and in Buyer’s sole discretion, Buyer may require that any controversy or claim arising out of or related to any contracts between Buyer and Seller or breach thereof shall be settled by arbitration under the applicable Rules of the American Arbitration Association, or under the rules of any other organization providing arbitration services which may be agreed upon by the parties, with the place of arbitration being the city in which Buyer’s office shown on face of Purchase Order is located. Judgement may be entered upon the arbitration award. In connection with any arbitration proceeding, each party shall pay (a) one-half of the arbitrator’s fees and any administrative charges associated with the proceeding, and (b) all of its own attorney and other professional fees and costs. 

18. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. 

19. Taxes. Unless specified on the Purchase Oder, the prices are inclusive of, and Seller shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales use or excise tax. No sales or use tax shall be added when a valid tax exempt notation is indicated on the Purchase Order. 

20. Waiver. No waiver of any provision of the Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 

21. Severability/Survival. If any portion of the Agreement of its application is construed to be invalid, illegal, or unenforceable, then the other portions of the Agreement or its application thereof shall not be affected thereby and shall be given full force and effect without regard to the invalid or unenforceable portions. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Purchase Order.