Terms and Conditions of Purchase

These Terms and Conditions of Purchase (these “Terms”) shall apply to all purchase orders (“Purchase Orders”) issued from Everon, LLC, a Colorado limited liability company, on behalf of itself and its affiliates and subsidiaries (collectively referred to as “Buyer”) to sellers, vendors and suppliers (collectively referred to as “Seller”) and shall govern the purchase of products (the “Products”) and services (the “Services”) pursuant to the Purchase Order, unless the Purchase Order is made under an existing contract between Seller and Buyer, in which case the terms of the existing contract shall apply. 

1. Purchase Order. A Purchase Order shall be deemed accepted by Seller in the event Seller fails to provide proper written notice of rejection within two (2) business days of Buyer’s issuance of the Purchase Order. Upon acceptance by Seller, either by acknowledgement, commencement of Services or shipment of Products, or otherwise, the Purchase Order, including these Terms, shall be a binding contract between Buyer and Seller. Buyer may cancel a Purchase Order, in whole or in part, at any time prior to shipment of Products and/or commencement of performance of Services, without further obligation or liability to Seller, upon notice to Seller. Any proposed addition, alteration or deletion of these Terms by Seller is expressly rejected by Buyer and shall not be binding on or enforceable against Buyer.
2. Delivery of Products. All Products shall be shipped to Buyer DDP (Incoterms 2000) at the location identified in the Purchase Order. Seller shall ship all Products to Buyer in new condition and shall use commercially reasonable efforts to package Product according to instructions Buyer provides, and if none are provided, then according to good commercial practice to ensure safe arrival of the Product. If Seller fails to deliver Products in accordance with the lead- time specified in the applicable Purchase Order, then Buyer may request Seller, and Seller shall assist to the best of its ability, to expedite or cancel a shipment that is past due. Title and risk of loss shall pass to Buyer at the time the Products are delivered to and accepted by Buyer with an authorized signature. Seller shall convey to Buyer good title, free and clear of all liens and other security interests.
3. Software. For all software provided by Seller (“Software”), Seller grants to Buyer a perpetual, non-exclusive, transferable, irrevocable, royalty-free, worldwide right and license to use, reproduce, prepare derivative works of, distribute, sell, offer to sell the Software in connection with Buyer’s use, sale and support of the Products. During the Term of the Purchase Order (including any Transition Term), Seller agrees to provide all support services, updates and modifications to the Software to Buyer and/or its end user customer without additional charges. Use of the Software by Buyer’s end user customers shall be subject to Seller’s End User License Agreement, if applicable (the “EULA”). In the event Buyer’s end user customer reasonably objects to any provisions of the EULA, Seller shall cooperate in good faith with Buyer in making commercially reasonable modifications to the EULA. 
4. Pricing and Payment Terms. Prices shall be as quoted in the Purchase Order, and shall be all-inclusive of all fees and taxes, and represents the sole and exclusive consideration to Seller for the Products and/or Services. Seller warrants that the prices for the Products and/or Services are not less favorable than those currently charged by Seller to any other customer purchasing equal or lesser quantities of substantially comparable products or services. Seller shall invoice Buyer on a monthly basis. Undisputed invoices are due and payable within sixty (60) days from the receipt thereof. If Buyer disputes the amount in an invoice, Buyer shall notify Seller as to any discrepancies with respect to the invoice. Buyer shall be entitled to withhold payment of the disputed portion of any invoice, and Buyer shall pay the undisputed portion of the invoice as set forth in this section.
5. Inspection and Acceptance. All Products and/or Services shall be subject to inspection and testing by Buyer prior to acceptance and payment of the purchase price therefor. Buyer may reject any or all of the work that does not conform to the applicable requirements, and Seller shall re-deliver the Products or re-perform the Services at no additional cost to Buyer per Buyer’s instructions.
6. Warranties. Seller hereby warrants that for a period of thirty six (36) months following Buyers acceptance of the Products hereunder, such Product shall: (i) be free from defects in materials, workmanship, design and manufacturing; (ii) operate in conformity with the performance, functionality, and other specifications contained in its product documentation; (iii) conform to all specifications, drawings, and descriptions referenced or set forth in the Purchase Order or otherwise agreed upon; (iv) be merchantable; (v) be fit for their intended purposes; and (vi) not infringe upon the intellectual property or proprietary rights of any third party. In addition, Seller shall perform the Services hereunder in a professional and efficient manner, using due care, skill, diligence and at a level equivalent to industry best standards and practices. Notwithstanding anything contained herein to the contrary, Buyers may, at its option, assign or otherwise transfer the warranty, in whole or in part, on any particular Product(s) to any of Buyer’s customers; whereupon (A) such customer may enforce such warranty against Seller on, in, and for such customer’s own behalf, name, and benefit, and (B) Buyers may enforce such warranty against Seller on, in, and for Buyer’s or such customer’s behalf, name, or benefit. During the warranty period, Seller shall, at no additional cost to Buyer, replace, credit or refund at Buyer’s option any Product that fails to conform to its warranty. If Buyer’s option is for refund or credit, Seller shall refund or grant Buyer a credit equal to the full amount of the purchase price paid by Buyer for the Product. If Buyer’s option is to replace such Product, the replacement Product must be new and conform to the warranty in all respects.
7. Termination. Buyer may terminate the Purchase Order, in whole or in part, at any time, if any of the following events occurs:(i) Seller fails to deliver Products or perform Services by the delivery date specified in the Purchase Order; (ii) Products and/or Services do not conform to the applicable descriptions or specifications; or (iii) Seller fails to perform any material provision of these Terms and fails to cure such default within fifteen (15) days after receiving notice of default from Buyer. Buyer shall have the right to terminate the Purchase Order, in whole or in part, at any time, for no cause upon notice to Seller. For a period requested by Buyer not to exceed six (6) months after the termination or expiration of the Purchase Order (the “Transition Term”), Seller shall provide to Buyer such assistance as may be required to transition from Seller to an alternative supplier, including the following: (i) continue to fulfill purchase order as requested by Buyer pursuant to applicable prices immediately preceding the termination or expiration hereof; (ii) continue to provide support and services associated with the Products without interruption, delay or degradation in quality, availability or security; (iii) such other additional services as are reasonably requested by Buyer.
8. Indemnity. Seller agrees to defend, indemnify and hold harmless Buyer from and against any and all losses, damages, suits, expenses (including reasonable attorneys' fees) and costs of a third party claim (collectively "Claims") arising out of (i) any breach by Seller of any of these Terms or any other terms or conditions in the Purchase Order;  (ii) any defects in any Products and/or Services provided hereunder, (iii) the acts or omissions of Seller, its employees, agents or representatives with respect to Seller's performance of the Purchase Order; or (iv) any Products or Services provided hereunder allegedly infringe any intellectual property, trade secret or other right of any third party. Buyer shall promptly notify Seller in writing of any Claims and give control of the defense and settlement of the Claim to Seller. Buyer shall reasonably cooperate with Seller and its legal counsel, at Seller's expense, in the defense of such Claims. Buyer shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at Buyer's expense. If the use of any Products or Services provided hereunder is enjoined as a result of a Claim, Seller shall, at its sole expense, either obtain on behalf of the Buyer the right to continue to use such services or products, substitute an equivalent service or product reasonably acceptable to Buyer in its place, or reimburse Buyer the purchase price of the Services or Products.
9. Insurance. Seller shall procure and maintain, at its sole cost and expense, insurance of the following kinds and amounts, or in the amounts required by law, whichever is greater: (i) Workers’ Compensation insurance prescribed by applicable local law; (ii) Employers Liability insurance with limits of at least $1,000,000 for each accident; (iii) Comprehensive automobile liability covering all vehicles that Seller owns, hires or leases in an amount not less than $2,000,000 (combined single limit for bodily injury and property damage); (iv) Comprehensive General Liability (“CGL”) insurance including Contractual Liability Coverage covering the contractual obligations accepted under this section, with limits not less than $5,000,000 for each occurrence of bodily injury, including death, and $5,000,000 for each occurrence of property damage; (v) Professional Liability Insurance (errors and omissions) with limits of $2,000,000 each occurrence; and (vi) Cyber Liability coverage, including Internet media, network security and privacy liability, with limits not less than $10,000,000 limit per occurrence/$10,000,000 limit in the aggregate. The policies will (i) name Buyer as an additional insured, including without limitation, with respect to third party claims or actions brought directly against Seller or against Buyer and Seller as co-defendants and arising out of the Purchase Order, (ii) contain a provision that Buyer, although named as an additional insured, will nonetheless be entitled to recovery for any loss suffered by Buyer as a result of Seller’s negligence, (iii) include a waiver of subrogation in favor of Buyer, and (iv) be written as a primary policy not contributing with any other coverage which Buyer may carry. Seller shall provide Buyer with certificates of insurance evidencing the required coverage, concurrently with the acceptance of the Purchase Order and upon each renewal of such policies thereafter. Seller shall give Buyer at least thirty (30) days prior written notice of any material change or cancellation of such policies.
10. Confidentiality. The parties acknowledge and agree that each may receive confidential information from the other party. The receiving party shall maintain the confidential information in confidence by using the same degree of care as receiving party uses to protect its own information of a like nature, but no less than a reasonable degree of care and disclose only to its employees who have a need to know such confidential information in order to fulfill the business affairs and transactions between the parties contemplated by this Purchase Order. The receiving party shall remain responsible for breaches of this Section arising from the acts of its employees. The receiving party agrees not to use the disclosing party's confidential information for its own purpose or for the benefit of any third party, without the prior written approval of the disclosing party. The receiving party shall promptly return or certify destruction of all copies of confidential information upon request by the disclosing Party or upon the expiration or termination of this Purchase Order. Each party acknowledges that each party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings.  Such remedy will not be deemed to be the exclusive remedy for any such breach but will be in addition to all other remedies available at law or in equity.
11. M&A Activity. Should Buyer, from time to time, sell, transfer or otherwise divest (whether by way of spin-offs, restructurings, reorganizations or otherwise) itself of the equity ownership, or substantially or a majority of all of its assets, or any division, or business unit (all jointly hereafter referred to as “Divested Unit”), and as part of such transfer Buyer agrees to provide transitional services to the Divested Unit following the divestiture of the Divested Unit, including the continued receipt of the Services by such Divested Unit, then Buyer shall have the right to do so for the remainder of the term of the Purchase Order after the completion of any such transfer with no additional payment to Seller, except for those fees set forth in this Purchase Order. In the event that Buyer acquires a business entity (“Acquired Business”) that receives services from Seller pursuant to an existing agreement, then at Buyer’s option, the Acquired Business’s agreement with Buyer may be cancelled (without penalty) and any further services performed for the Acquired Business shall be performed in accordance with these Terms.
12. Non-Solicitation. During the term of this Purchase Order (including any Transition Term) and for a period of one (1) year thereafter, Seller shall not, nor cause any other party to, directly or indirectly (i) solicit any end user or customer of Buyer for the purpose of marketing, selling, servicing or providing the Products and/or Services or the similar thereof; or (ii) solicit or induce for employment any person who performed any work under the Purchase Order who is then in the employment of Buyer. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions shall not be construed as a solicitation or inducement for the purposes of this Section.
13. Compliance with Laws. Seller and the Products and/or Services supplied hereunder shall comply with all applicable federal, state, and local laws, codes, ordinances, rules, regulations and requirements, including, without limitation, all applicable laws and regulations governing international transactions or activities including, but not limited to, export controls, import controls, customs regulations, trade embargoes and other trade sanctions.
14. Governing Law; Venue. This Purchase Order will be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of law principles.  The parties irrevocably submit to the jurisdiction of the court of competent jurisdiction located in Palm Beach County, Florida to resolve any disputes arising under or related to this Purchase Order. THE PARTIES AGREE AND ACKNOWLEDGE THAT THEY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS PURCHASE ORDER.
15. Time of the Essence. Seller acknowledges and agrees that time is of the essence with respect to Seller’s performance under this Purchase Order.
16. Waiver. Any waiver by either party shall be in writing.  Any waiver by either party hereto of any provision of these Terms will not be construed as a waiver of any other provision of these Terms, nor will such waiver be construed as a waiver of such provision with respect to any other event or circumstance, whether past, present or future.
17. Assignment. Neither these Terms, nor any Purchase Order, nor any interest under either of them may be assigned or delegated by Seller without the prior written consent of Buyer.
18. Publicity. Seller shall not, without the prior written consent of Buyer, advertise or otherwise disclose that Buyer has placed any orders with Seller. Seller shall not use Buyer’s name or trademark in any press release, marketing or advertising materials without Buyer’s prior written consent.
19. Specifications. All specifications, drawings or other documents, prototype and data furnished by Buyer shall be deemed Buyer's property and treated as Buyer Confidential Information. They are delivered solely for the purpose of Seller’s performance of this Purchase Order, shall not be disclosed to others nor used for any other purpose without the prior written consent of Buyer, and shall be returned to Buyer promptly upon Buyer’s request.
20. Entire Agreement. These Terms, together with Purchase Orders issued hereunder, constitute the final and entire agreement between Buyer and Seller with respect to the purchase of the Products and/or Services and supersede any terms and conditions in any acknowledgement form, invoice or other document of Seller. These Terms may be amended only by a written instrument duly executed by both parties, and may not be amended orally or by course of performance.