Terms and Conditions - En-Net Services

Purchase Order Terms and Conditions

Effective 01/01/2024

Terms and Conditions of Purchase Order– These terms and conditions, and the Purchase Order to which they are attached (collectively referred to as the “Purchase Order”) represent the entire agreement between En-Net Services, LLC, hereinafter referred to as “Buyer,” and the company (“Seller”) listed on the Purchase Order for the purchase of commercial goods and services (“Goods and Services”) in support of Seller’s customer (“Customer”).
Order Issuance and Acceptance– Purchase Orders are issued by En-Net Services LLC and accepted by Seller using the process set forth in this Section 2, Order Issuance and Acceptance.
1. Any Purchase Order issued by Buyer shall be issued either electronically, via e-mail with an electronic signature, or using the Seller’s electronic ordering system. En-Net Services LLC is responsible only for Purchase Orders issued by authorized personnel. Therefore, Force 3 shall not be responsible for any unsigned Purchase Orders, any Purchase Orders signed by unauthorized personnel, or any unauthorized orders placed in Seller’s electronic ordering system.
2. Seller shall confirm the Purchase Order within 24 hours of receipt. The Order confirmation shall include: (i) the Goods and/or Service price; and (ii) the quantity of Goods and/or Services. Alternatively, Seller shall within 24 hours commence performance and provide written notice to Buyer of same. Buyer shall be responsible only for payment of the amount set forth in the Purchase Order. If Seller requires any other costs or charges, or cannot perform within the specifications set forth in the Purchase Order, Seller shall immediately contact Buyer.
3. [Reserved].
4. Except as otherwise set forth in this Section 2, Acceptance is limited to the terms and conditions set forth in this Purchase Order. No change, modification or revision to this Purchase Order shall be valid and binding unless expressly agreed to in writing and signed by the authorized representative of both Parties.
Packing– Any and all goods that are shipped shall be suitably packed, marked and shipped in accordance with the requirements of common carriers. Buyer shall obtain the lowest transportation cost possible while ensuring the goods are not damaged during shipment. Buyer shall make no additional charges for packing, marking, shipping, or for the drayage or storage of goods unless otherwise stated herein or expressly agreed to in writing and signed by the authorized representative of Buyer. Unless otherwise specified, (i) all packing and crating by Seller shall be and in suitable containers for protection in shipment and storage, and (ii) the price or prices in this Purchase Order includes all charges for Seller’s packing and crating, and for transportation to the F.O.B. point. Where quotations are F.O.B. Destination, Buyer’s transportations much be prepaid by Seller.
Shipping, Delivery and Place of Service –
1. Seller shall properly mark each package with the Purchase Order Number, part number, serial number, quantity and where multiple packages comprise a single shipment, each package shall also be consecutively numbered. The Purchase Order number, part number, and serial number shall be shown on packing slips, bills of lading and invoices.
2. Delivery shall be made in the quantities and at the time specified by Buyer. Buyer shall include with each package a certificate of conformance certifying that the Goods and Services conform to all specifications set forth in the Purchase Order. Seller agrees that Buyer and Customer reserve the right to refuse shipments of defective, damaged or nonconforming Goods, quantities of Goods that differ from the amount ordered, and shipments delivered either before or after the scheduled delivery date set forth in the Purchase Order. In such case, Buyer shall not be responsible for Goods delivered in excess of the quantities specified in the Purchase Order.
3. If at any time Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay, and the duration of the anticipated delay will be given immediately to Buyer.
4. Seller shall provide Services at the place(s) specified by Buyer in the Purchase Order.
Changes– No substitutions or changes are allowed to the terms of this Purchase Order, either concerning price or the Goods to be supplied hereunder, once this Purchase Order is confirmed and accepted in accordance with Section 2, Order Issuance and Acceptance.
Inspection and Acceptance of Goods and Services– Acceptance of Goods and Services under this Purchase Order is subject to the inspection of both Buyer and its Customer. Goods and Services that are either defective, delayed, or otherwise fail to conform to the specifications in the Purchase Order may be rejected. When Seller receives notification of rejection of Goods or Services, Seller shall provide Buyer with instructions for the return of Goods at Seller’s exclusive expense. Seller shall not replace any rejected Goods or re-perform Services without the authorized express written and signed consent of Buyer.
Invoicing and Payment– Buyer shall pay Seller, upon submission of a properly payable invoice, the prices stipulated in the Purchase Order for Goods delivered and accepted or Services rendered and accepted, less any deductions provided. The invoice payment period will start on the later of the date: (i) 30 calendar days from Buyer’s receipt of a properly payable invoice; or (ii) the items are delivered and accepted or services rendered and accepted pursuant to Section 6, Inspection and Acceptance of Goods and Services. If a pricing discrepancy results when comparing the invoice amount to Buyer’s Order amount or Goods or Services received, processing of the invoice may be delayed.
Taxes– Except as may be otherwise provided in this Purchase Order, the prices herein include all Federal, state and local taxes applicable to the goods purchased herein.
Warranties– Seller expressly warrants that the goods and work covered by this Purchase Order shall:
1. conform to the specifications, drawing, samples or other descriptions furnished or specified by Buyer; and
2. shall be merchantable, of good material and workmanship, and free from defects under normal use and service for a period of one (1) year from the date of shipment.
3. [Reserved].
4. The warranties set forth in his Section 9 set forth the full extent of Seller’s responsibilities regarding any Goods and Services provided. The warranties set forth in this Section 9 are given in lieu of all other express warranties. Seller disclaims all other warranties or conditions, express or implied, including fitness for a particular purpose and infringement. In no event shall Seller be liable for damages in excess of the purchase price of any Goods or Services provided, for any loss of use, loss of time, inconvenience, commercial loss, lost profits or savings or other incidental, special, indirect, or consequential damages arising out of the use or inability to use such Products or Services, to the full extent such may be disclaimed by law.
5. Neither approval by Buyer of Seller’s design or material used, nor Buyer’s or Customer’s inspection of the same shall relieve Seller from any obligations under the warranties set forth in this Section 9.
6. The warranties set forth in this Section 9 shall survive acceptance and payment and shall run to Buyer and its Customer of any Goods and Services provided, and shall not be deemed to be the exclusive rights of Buyer, but shall be in addition to other rights of Buyer under law, equity, and the terms of this Purchase Order. The warranties set forth in this Section 9 are not assignable or transferable to any other party. Seller assumes no obligations or liability for additions or modifications to the warranties set forth in this Section 9 unless made in writing and signed by the Parties.
7. Seller is not responsible in any way for any ancillary equipment not furnished by Seller, which is attached to or used in connection with any Goods and Services provided, or for operation of the Goods with any ancillary equipment, and all such equipment is expressly excluded from the warranties set forth in this Section 9.
Patent and Copyright Indemnity– Seller warrants that the Goods by this Purchase Order do not infringe on any U.S. copyright, trademark, patent, or other intellectual property right. Seller agrees to defend and pay all damages finally awarded against Buyer, its affiliates, successors, assigns, customers and users of the Goods provided hereunder against any and all third party claims and liabilities (including, without limitation, attorneys’ fees and costs) finally awarded by a court of competent jurisdiction, or agreed to in writing by Seller in settlement of such a claim, regardless of the form of claim or action, arising out of or in connection with a claim that the goods infringe, violate, or misappropriate a valid third party patent, copyright, or other proprietary right. Seller’s duties under this Section 10 are conditioned upon: (a) Buyer promptly notifying Seller in writing of such a claim; (b) Seller having sole control of the defense of the suit and all negotiations for its settlement or compromise; and (c) Buyer cooperating with Seller and, if requested by Seller, providing reasonable assistance in the defense of such a claim. If a direct infringement of a United States patent or copyright claim occurs, or in Seller’s opinion is likely to occur, Seller may at its option and expense: (a) procure for Buyer the right to continue using any Goods or Services provided; (b) replace or modify the Goods or Services so that they become non-infringing; (c) grant Buyer (i) a pro-rated refund of any amounts pre-paid for the infringing Goods or Services or (ii) a credit for the infringing Goods or Services, less a reasonable charge for depreciation (if the infringing Goods are equipment, including equipment with embedded software). Seller will have no duty to defend or indemnify Buyer for any direct infringement of a United States patent or copyright claim that arises from or is based upon: (a) Buyer data, buyer-provided equipment, non-Seller content, or third-party equipment, hardware, software, data, or other third-party materials; (b) the combination of any Goods or Services with any products or materials not provided by Seller; (c) a Good or Service designed, modified, or manufactured in accordance with Buyer’s designs, specifications, guidelines, or instructions; (d) a modification of the Goods or Services by a party other than Seller; (e) use of the Goods or Services in a manner for which the Goods or Services were not designed or that is inconsistent with the terms of this Purchase Order; or (f) failure by the Buyer or Customer to use or install an update to the Goods or Services that is intended to correct any claimed infringement. In no event will Seller’s liability resulting from an infringement claim extend in any way to any payments due on a royalty basis, other than a reasonable royalty based upon revenue derived by Seller from Buyer from sales or license of any infringing Goods or Services.
Indemnification and Insurance– Seller shall pay all damages finally awarded by a court of competent jurisdiction, or agreed to in writing by Seller in settlement of any claim, against Buyer and its Customer, its officers, employees, affiliates, and customers from any liability, loss, damage, cost or expense by reason of personal injury of whatsoever nature or kind, or death arising out of, as a result of, or in connection with any act, omission or breach of contract of Seller, or of its employees, agents, subcontractors, lower-tier subcontractors, or suppliers, up to the value of this Purchase Order. Without in any way limiting the foregoing, Seller, its subcontractors, lower-tier subcontractors, and suppliers shall maintain public liability and property damage insurance in reasonable limits covering the obligations set forth above and shall maintain proper workman’s compensations insurance covering all employees performing under the scope of this Purchase Order. Except as provided above, Seller will not be liable in connection with this Purchaser Order for any indirect, incidental special, exemplary, punitive, or consequential damages or damages for lost profits or revenues, even if Seller has been advised by Buyer or any third party of the possibility of such damages or losses and whether or not such damages or losses are foreseeable.
Advertising or Publicity– Seller shall not, without prior written consent of Buyer, publish the fact the Buyer or its Customer has placed this Purchase Order, or otherwise release any information relating to this Purchase Order except as may be required in performance of this Purchase Order.
Rights in Proprietary Data and Inventions –
1. All specifications, information, data, drawings, software and other items delivered to Buyer by Seller, if any, shall be disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without restriction, unless Buyer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like.
2. Unless otherwise expressly agreed in writing to the contrary all specifications, information, data, drawings, software, samples, models, nomenclature and other items which are: supplied to Seller by Buyer, or obtained or developed by Seller in the performance of this Purchase Order or paid for by Buyer, shall be proprietary to Buyer, shall be used only for purposes of providing Goods or Services to Buyer pursuant to this Purchase Order, and shall not be disclosed to any third party without Buyer’s express written consent. All such Goods supplied by Buyer or obtained by Seller in performance of this Order or paid for by Buyer shall be promptly provided to Buyer on request or upon completion of this Order.
3. [Reserved]
Counterfeit Risk– All material, including material incorporated into the Goods delivered under this Purchase Order must be procured from the original equipment or component manufacturer (OEM/OCM), or the OEM/OCM’s authorized distributor. Independent distributors or brokers are not acceptable suppliers and shall not be used to provide product delivered under this purchase order. Suppliers shall maintain a counterfeit risk mitigation process in accordance with industry recognized standards.
Counterfeit Electronic Parts– Unless Buyer expressly indicates in writing otherwise, Seller certifies that it has an established Counterfeit Electronic Part Detection and Avoidance System satisfying all requirements under Defense Federal Acquisition Regulation Supplement (“DFARS”) clause 252.246-7007.
Relationship of Parties– Seller’s relationship to Buyer in the performance of this Order is that of an independent contractor. Neither Seller nor any of the persons utilized by Seller to furnish materials or perform work or Services under this Order are employees of Buyer. Seller shall, at its own expense, comply with all applicable laws and regulations and assume all liabilities and obligations imposed by such laws and regulations with respect to this Order. Seller agrees that neither it nor its personnel are employees of Buyer, or provided to any benefits provided or rights guaranteed by Buyer, or by operation of law, to Buyer’s respective employees.
Applicable Law and Disputes– Any dispute over any question of fact or law arising under this Purchase Order shall be governed by the laws of the State of Delaware. Until final resolution of any dispute hereunder, Seller shall diligently proceed with performance of this Purchase Order as directed by Buyer. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.
Any disputes under this Purchase Order that are not disposed of by mutual agreement of the Parties shall be resolved by mediation by sending a notice of mediation (“Notice of Mediation”) to the other party. The parties will choose an independent mediator within thirty (30) days of such Notice of Mediation. Neither party may unreasonably withhold consent to the selection of a mediator, but if the parties are unable to agree to a mediator, either party may request that the American Arbitration Association nominate a mediator. Each party will bear its own costs of mediation, but the parties will share the cost of the mediator equally. Each party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle any dispute. . Such arbitration shall be conducted in Anne Arundel County, Maryland before a single arbitrator with experience in government contracting law, and all communication relating to the dispute resolution will be maintained in strict confidence by the parties. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Any action or issue in equity that cannot be arbitrated shall be brought exclusively before a court of competent jurisdiction in Maryland without regard to conflicts of law principals and seller consents to personal jurisdiction in Maryland. The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity. Notwithstanding the foregoing, any dispute arising from or relating to Seller’s intellectual property rights will not be subject to negotiation or mediation in accordance with this Section 17, but instead will be decided by a court of competent jurisdiction.
Limitation of Liability– BUYER SHALL NOT BE LIABLE TO SELLER OR TO ANY OTHER PERSON FOR ANY INDIRECT (INCLUDING LOST PROFIT, LOST DATA, AND LOST BUSINESS OPPORTUNITY), INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER ARISING OUT OF TORT, BREACH OF WARRANTY, OR OTHERWISE, REGARDLESS OF WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES DAMAGES SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE ORDER.
Compliance with Federal, State and Local Laws– Seller agrees to comply with all applicable national, state and local laws, orders, rules, regulations, and ordinances including the Federal Acquisition Regulation (FAR) and Defense Acquisition Regulation Supplement (DFARS), if applicable to this order. Seller shall procure all licenses, permits, pay all fees, and other required charges and shall comply with all applicable guidelines and directives of any local, state and/or federal government entity. Seller further agrees to comply with all the flow down provisions, if any, attached hereto as Attachment A
Severability– If any part, term, or provision of this Purchase Order shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Purchase Order, the validity of the remaining portions of provisions shall not be affected thereby. In the event that any part, term or provision of this Purchase Order is held void, illegal, unenforceable, or in conflict with any law of the federal, state, or local government having jurisdiction over this Purchase Order, Seller agrees to negotiate a replacement provision, construed to accomplish its originally intended effect, that does not violate such law or regulation.
Termination –
1. Termination for Convenience. Buyer may, by written notice to Seller terminate in whole or in part this Purchase Order for convenience if Buyer’s customer has terminated its order. Termination shall be effective upon the date set forth in the termination notice. In the event of such termination, Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this Purchase Order, Seller shall be paid a percentage of the Purchase Order price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Seller can demonstrate to the satisfaction of Buyer using its standard record keeping system, have resulted from the termination. Seller shall not be paid for any work performed or cost incurred which reasonably could have been avoided.
2. Termination for Default. Buyer may, by written notice of default to Seller, terminate this Order in whole or in part if Seller fails to (i) deliver the goods and/or perform the services within the time specified in this Purchase Order or any extension thereof granted by Buyer in writing, (ii) perform any of the other provisions or meet any of the requirements of this Purchase Order, or(iii) make progress so as to endanger performance of this Order in accordance with its terms and, with regard to conditions (ii) and (iii) above, does not cure such failure within ten (10) calendar days after receipt of written notice of default from Buyer. If Buyer terminates this Order in whole or in part it may acquire, upon such terms as it deems appropriate, Goods and/or Services similar to those terminated. Seller shall be liable to Buyer for any excess cost related to the procurement of for such similar Goods and/or Services, provided, however, that Seller shall continue performance of this Purchase Order to the extent not terminated hereunder and, provided further, that Buyer shall pay the price set forth in this Purchase Order for completed goods or services delivered and accepted.
Assignment and Subcontracting– Seller shall not assign, delegate or otherwise transfer (by merger, asset sale, contract, operation of law or otherwise) its rights or obligations under and this Agreement or grant a security interest in or pledge as collateral any interest in this Agreement, without Buyer’s prior written consent.
Waiver– Buyer’s failure to insist upon or enforce strict compliance by Seller with respect to any aspect of this Purchase Order shall not be deemed a waiver or relinquishment to any extent of any of Buyer’s right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same shall remain in full force and effect. Waiver of a right under this Purchase Order shall not constitute a waiver of any other right, waiver or default under this Purchase Order.
Merger– This Agreement constitutes the entire agreement with respect to the Goods and Services between Buyer and Seller and all other subject matter covered herein and supersedes any and all prior agreements. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
Survivability– If this Purchase Order expires, is completed, or is terminated Seller shall not be relieved of those obligations contained in this Order for the following provisions: Section 2, Order Issuance and Acceptance; Section 7, Invoicing and Payment; Section 9, Warranties; Section 10, Patent and Copyright Indemnity; Section11, Indemnification and Insurance; Section 12, Advertising or Publicity; Section 13Rights in Proprietary Data and Inventions; Section 16, Notices; Section 16, Relationship of Parties; Section 17, Applicable Law and Disputes; Section 18, Limitation of Liability; Section 19, Compliance with Federal, State, and Local Laws; Section 20, Severability.