The term “Seller” refers to the addressee set forth on the face of DKFD’s purchase order. The term “DKFD” refers to Deltech Kiln and Furnace Design, LLC a limited liability partnership organized and existing under the laws of the State of Colorado and located in Denver, Colorado.
The following terms and conditions apply to all DKFD purchase orders, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications, or other documents incorporated by reference (each, collectively, an “Order”). Acceptance by DKFD of any offer from Seller is expressly limited to the terms and conditions of the Order, and DKFD hereby objects to and shall not be bound by any additional, different, or conflicting terms, whether printed or otherwise, in any other communication between the parties (including on any of Seller’s forms, letters, or papers), it being understood that the terms and conditions of the Order shall prevail notwithstanding any such additional, different, or conflicting terms.
The Order shall be deemed accepted by Seller on receipt by DKFD of a copy of the Order signed by an authorized Seller representative. The Order shall become effective upon return of a copy signed by both the Seller and an authorized DKFD representative to the Seller.
DKFD may make changes to the Order at any time and Seller shall accept such changes. If a change by DKFD causes an increase or decrease in the cost or time required for Seller’s performance, as soon as practicable the parties shall agree to an equitable adjustment of the purchase price and/or delivery schedule, as applicable, and incorporate such changes as a revision change to the Order. No other form of notification or verbal agreement shall be binding on DKFD.
Termination for Convenience
DKFD may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for DKFD’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If DKFD terminates for convenience, DKFD shall pay Seller for goods and services accepted as of the date of termination and for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. It will be incumbent on the Seller to provide evidence of those costs.
Termination for Cause
DKFD may, by written notice to Seller, terminate the Order, or any part thereof, if Seller breaches any of the terms and conditions of the Order. Failure by Seller to make timely, complete, and conforming delivery of goods and services, or breach of the representations or warranties set forth in the Order, shall entitle DKFD to terminate the Order for cause. If DKFD terminates for cause, DKFD shall have no payment obligations to Seller.
Without limiting DKFD’s rights and remedies at law or in equity, DKFD reserves the right to charge Seller for any loss, expense (including reasonable attorney’s fees) or damage sustained as a result of the Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with DKFD’s purchase of substitute goods or services, incidental damages, and consequential damages resulting from Seller’s failure or breach.
Choice of Law
All matters arising under or related to the Order shall be construed and enforced in accordance with the laws of the State of Colorado, without regard to conflicts of law rules.
Seller shall preserve in strict confidence all confidential, sensitive, or proprietary information of DKFD received from DKFD, whether or not marked “Proprietary” or “Confidential”, and whether oral or written, using the same degree of care as it takes to preserve and safeguard its own confidential or proprietary information (but in no event less than a reasonable degree of care). Seller will not use or cause to be used any such Confidential Information for any purpose except as required in the performance of the services required by the Order.
The Order represents the entire agreement between Seller and DKFD with respect to the goods and services described in the Order.