Terms & Conditions
Elnik Systems Purchase Order Terms and Conditions
1. Terms of Agreement:
The following Purchase Order (PO) Terms and Conditions sets forward the agreement between Elnik Systems, LLC (Elnik Systems or Purchaser) and the Supplier (Supplier and/or Vendor. The PO, together with any related documents or references, constitutes an entire and exclusive agreement between Elnik Systems and the Supplier. Any additional or conflicting terms proposed by the Supplier will not be incorporated into this agreement unless explicitly agreed to by Elnik Systems. By accepting the PO or commencing work, the Supplier acknowledges and agrees to the terms set forth herein. If a master agreement, supplier agreement or long-term agreement (LTA) hereafter referred as master agreement exists between Elnik Systems and the Supplier for the same scope of work, the terms of the master agreement shall take precedence over any conflicting provisions in the Purchase Order.
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2. Definitions:
a. Deliverables: Items or services the Supplier must deliver by the specified Delivery Date.
b. Delivery Date: The date(s) by which the Supplier is required to deliver the Work.
c. Harmful Code: Software designed to harm, disrupt, or impede operation, like viruses or back doors.
d. Intellectual Property Rights: Rights related to copyrights, trademarks, patents, trade secrets, and other intellectual and industrial properties.
e. Preexisting Materials: Intellectual property or tangible items created before this agreement or outside its scope.
f. Products: Tangible goods the Supplier must deliver by the Delivery Date.
g. Services: Services the Supplier is contracted to perform for Elnik Systems.
h. Statement or Scope of Work (SOW): A document detailing the scope, objectives, and timeframe for the Supplier’s work.
i. Subcontractor: A third party hired by the Supplier to perform work.
j. Supplier Personnel: The Supplier's team members, including employees, agents, and subcontractors.
k. Third Party Intellectual Property: Intellectual property from a third party that the Supplier incorporates into the work.
l. Work: The Deliverables, Products, and Services specified in the Purchase Order, including any SOW.
m. Product specifications: The products’ specified requirements, including Item Description (name/SKU), Quantity, Unit Price, Total Cost, and defined product attributes such as Dimensions, Weight, Material, Color, Packaging, and applicable Tolerances. All products must conform to the quality standards and specifications detailed in the PO.
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3. Delivery:
a. Timeliness: Supplier must meet all deadlines. If a delay is expected, Supplier must notify Elnik Systems at least five (5) business days before the delivery date. Elnik’s acceptance of the notice does not waive any obligations.
b. Late Deliveries: If the Supplier delivers Work after the Delivery Date, Elnik Systems can reject it.
c. Rejected Work: Elnik Systems may store rejected Work at the Supplier’s expense, including shipping and insurance costs. If return instructions are not received within five (5) business days, Elnik Systems reserves the right to charge back the cost, dispose of, resell, or destroy the rejected Work.
d. Backcharges: If Supplier fails to meet its obligations under this Purchase Order, Elnik Systems may perform or have performed the necessary work and back charge Supplier for all reasonable costs incurred. Such costs include, but are not limited to, rework (including material, labor, and tools), additional inspection, expedited shipping, handling, and administrative expenses. Elnik Systems may deduct backcharges from any amounts due or to become due to Supplier.
e. Packaging and Protection: The Supplier must pack and handle the Work to protect it from damage and follow local regulations, especially for hazardous materials.
f. Packing List: The Supplier must include a packing list with each delivery, detailing the Purchase Order number, Elnik Systems part number, product description, quantity, and shipment date.
g. Delivery Location and Charges: Unless instructed otherwise, the Supplier must deliver Work to Elnik Systems’ specified address, covering all shipping, customs, and insurance costs. Risk of loss doesn’t pass to Elnik Systems until acceptance.
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4. Price and Payment:
a. Price and Charges: The price for the Work includes all taxes, shipping, customs, and other charges unless otherwise stated. Suppliers must help Elnik Systems minimize taxes related to the order.
b. Payment Terms: Elnik Systems’ standard payment terms are net 45 days, unless otherwise mutually agreed in writing by both Elnik Systems and the Supplier. Payment will be made based on the latest of the following events: the Delivery Date, Elnik Systems’ acceptance of the Work, or receipt of a properly prepared invoice. Invoices must include the relevant Purchase Order number and all required certifications. Payments will be made in the local currency of the applicable Elnik Systems entity. If pricing is provided in a different currency, Elnik Systems reserves the right to convert the amount to the local currency. Elnik Systems also reserves the right to offset any amounts due from the Supplier against any payments owed to the Supplier.
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5. Ownership and License:
a. Ownership of Deliverables: Elnik Systems owns all Deliverables and associated Intellectual Property Rights, unless specified otherwise in a Statement of Work (SOW). The Supplier assigns all rights to Elnik Systems.
b. Preexisting Materials: Each party owns its own Preexisting Materials, but the Supplier grants Elnik Systems a perpetual, royalty-free license to use any Preexisting Materials incorporated into the Deliverables, as needed for Elnik Systems to exercise its rights.
c. Third-Party Intellectual Property: Supplier must obtain and assign to Elnik Systems a nonexclusive, royalty-free, transferable license for any third-party intellectual property required to use or delivered with the Work. The Supplier must provide copies of relevant releases and licenses upon Elnik Systems’ request.
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6. Inspection and Acceptance:
Elnik Systems can reject any Work that doesn’t meet the required standards within ten (10) business days of delivery (point of receipt), installation or testing. Elnik Systems can choose to:
a. Return the non-conforming Work for a refund or credit.
b. Ask the Supplier to replace the Work.
c. Have the Work repaired to meet the requirements.
d. Alternatively, Elnik Systems can accept the non-conforming Work but with a refund or credit for its reduced value. Payment to the Supplier before rejection does not mean Elnik Systems has accepted the Work. Additional charges to Supplier for rework may apply.
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7. Changes:
a. Change Definition: A "Change" refers to any modification Elnik Systems directs within the scope of the Agreement or Statement of Work (SOW).
b. Change Orders: Elnik Systems can make Changes through a written order, called a Change Order.
c. Supplier’s Notification: If the Supplier believes Elnik Systems has caused a change affecting cost or time without issuing a Change Order, the Supplier must promptly notify Elnik Systems with a description of the change, an estimate of the adjustment needed, and a deadline (at least 30 days) for Elnik Systems to respond.
d. Request for Adjustment: After notifying Elnik Systems of the Change or receiving a Change Order, the Supplier must submit a request for an equitable adjustment to the price or timeline within 10 days.
e. Negotiation: Both parties will negotiate an amendment to the SOW to adjust the price or performance time accordingly.
f, Proceeding with Changed Work: The Supplier must continue with the Changed Work as directed by Elnik Systems, even if the amendment to the Agreement or SOW hasn’t been finalized yet.
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8. Representations and Warranties:
a. Supplier’s Warranties: The Supplier warrants that:
b. It has the authority to enter the Purchase Order and fulfill its obligations.
c. It has the right to assign the Work to Elnik Systems, including any work by Supplier Personnel or Subcontractors.
d. The Work will not infringe on any third-party intellectual property or proprietary rights.
e. It will not disclose or use any confidential information from others that isn’t covered by a non-disclosure agreement.
f. The software provided is free from harmful code.
g. Work meets Elnik Systems’ specifications or, if not, is suitable for its intended use.
h. Elnik Systems’ Warranty: Elnik Systems warrants that it has the authority to enter and perform the Purchase Order.
i. No Other Warranties: Except as specifically stated, no other warranties (expressed or implied) are made, including those of merchantability or fitness for a particular purpose.
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9. Assignment and Subcontracting:
a. Assignment and Delegation: Supplier cannot assign rights or delegate obligations under the Purchase Order without Elnik Systems’ prior written consent, which Elnik Systems will not unreasonably withhold. Elnik Systems can void any unauthorized assignment or delegation.
b. Subcontracting: Supplier cannot subcontract rights or obligations without Elnik Systems’ written consent. If Elnik Systems approves a subcontractor, Supplier:
c. Remains responsible for the subcontracted work.
d. Indemnifies Elnik Systems for damages caused by the subcontractor’s actions.
e. Pays the subcontractor directly. If Supplier doesn’t pay the subcontractor, Elnik Systems can pay them and offset the cost from what’s owed to Supplier. Suppliers must also indemnify Elnik Systems for any costs due to non-payment.
f. Third-Party Rights: Only parties to the Purchase Order have the right to enforce its terms; third parties cannot benefit from or enforce these terms.
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10. Term and Termination:
a. Duration of the Purchase Order: The Purchase Order remains in effect for any issued SOW until it is terminated, or the Work is completed and accepted.
b. Elnik Systems Termination for Convenience: Elnik Systems can terminate the Purchase Order or any SOW with 15 days' written notice. The Supplier must inform Elnik Systems of the work completed, and Elnik Systems will pay for all accepted work done up to the termination date. No further payments will be due after termination.
c. Termination for Specific Events: Either party can terminate immediately if certain events occur, like a receiver being appointed, bankruptcy proceedings, or ceasing to do business.
d. Elnik Systems Termination for Change in Ownership: Elnik Systems can terminate immediately if there is a 20% or more change in Supplier’s ownership.
e. Termination for Material Breach: Either party can terminate immediately for a material breach not fixed within 30 days of notice. Elnik Systems will have no further payment obligation if it terminates due to a breach.
f. Survival of Obligations: Any obligations that naturally extend beyond the Purchase Order’s termination or expiration will survive.
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11. Confidential Information and Publicity:
a. Extension of NDA: If an NDA exists between Elnik Systems and the Supplier, and the NDA expires before the Purchase Order ends, the NDA’s term will automatically extend to match the Purchase Order’s term.
b. Confidentiality: The terms, conditions, and existence of the Purchase Order are considered Confidential Information under the NDA.
c. Public Disclosure: Supplier must obtain Elnik Systems’ written consent before making any public statements, such as publications, presentations, announcements, or press releases, about its relationship as a supplier to Elnik Systems.
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12. Indemnification:
a. Definition of Claim: A "Claim" includes any loss, damage, liability, cost, or expense that one party may need to defend, indemnify, and hold the other party harmless for.
b. Supplier’s Indemnification: Supplier must defend, indemnify, and hold Elnik Systems harmless for Claims arising from:
c. Supplier’s (or its subcontractors’) actions or omissions in performing the Work.
d. Any infringement of third-party intellectual property rights or other rights.
e. Elnik Systems’ Indemnification: Elnik Systems will indemnify and hold Supplier harmless for Claims arising from:
f. Supplier’s use of Elnik Systems products or services.
g. Supplier’s use of Elnik Systems -provided information or materials.
h. Infringement resulting from Supplier following Elnik Systems’ written instructions.
i. Personal Injury or Property Damage: Both parties will indemnify each other for Claims arising from their own negligence or willful actions that result in personal injury or property damage (excluding lost/damaged data).
j. Claim Notification and Control: The Indemnified Party must promptly notify the Indemnifying Party of a Claim and allow them to control the defense and settlement. The Indemnified Party can employ its own counsel at its own expense but cannot settle the Claim on its behalf.
k. Third-Party Interference with Work: If a third party blocks or interferes with Elnik Systems’ use of the Work, Supplier must try to obtain the necessary licenses, modify or replace the Work, or refund Elnik Systems if those options are not commercially reasonable.
l. Other Remedies: This section does not limit other remedies available to the parties.
13. Liability:
a. Liability Limitation: Elnik Systems’ liability to the Supplier is limited to the amount Elnik Systems paid to the Supplier in the six months prior to the event that caused the liability.
b. Exclusion of Certain Damages: Elnik Systems will not be liable for incidental, indirect, special, or consequential damages, or loss of profits, even if it was advised of the possibility of such damages.
c. Exceptions to Liability Limits: These liability limits still apply even if a limited remedy fails its essential purpose. However, the Purchase Order does not limit liability for bodily injury, death, physical property damage, or other liabilities that cannot be excluded by law.
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14. Insurance:
a. Insurance Requirements: Supplier must maintain insurance to cover third-party liabilities for bodily injury (personal injury) and property damage in amounts sufficient to protect Elnik Systems.
b. Compliance with Laws: Supplier must comply with all relevant laws, regulations, and orders regarding employer liabilities to employees for injuries or diseases related to their employment.
c. Additional Insurance: Supplier must also maintain other types and amounts of insurance that are typical for a company of similar size and operations in the relevant jurisdiction(s).
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15. Force Majeure:
a. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) if such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to acts of God, fire, flood, earthquake, explosion, war, terrorism, civil unrest, government action, embargoes, labor strikes not involving the affected party’s own workforce, or shortages of transportation.
b. The affected party must give written notice of the force majeure event within five (5) business days of its occurrence, describing the event and the expected duration of the delay. Performance shall be suspended during the period of force majeure but shall resume as soon as reasonably practicable.
c. If the force majeure event continues for more than thirty (30) consecutive days, the non-affected party may terminate the Purchase Order without penalty.
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16. Compliance with Laws:
a. Legal Compliance: The Supplier guarantees compliance with all applicable laws and regulations in the performance of the Purchase Order, including anti-bribery legislation (e.g., U.S. Foreign Corrupt Practices Act, UK Bribery Act 2010) that prohibits offering or receiving bribes to influence business decisions.
b. Federal Contractor Requirements: If the Supplier is a U.S. federal contractor or subcontractor, it agrees to comply with specific regulations (41 CFR 60-1.4, 29 CFR part 471, 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a)) related to non-discrimination based on veteran status and disability, and affirmative action for these groups. Non-compliance is considered a material breach of the Purchase Order.
c. Conflict Minerals: Elnik Systems aims to be conflict-free regarding materials from the Democratic Republic of the Congo (DRC). Suppliers must adopt policies and practices to ensure their goods do not contain "conflict minerals" from the DRC or surrounding areas. Suppliers must provide relevant supply chain data upon ELNIK SYSTEMS’ request to meet reporting obligations.
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17. Governing Law:
The Purchase Order, this Agreement, and the transaction described within are governed by the laws of the State of North Carolina. Any legal action related to or arising from these terms and conditions must be filed and litigated exclusively in the courts of North Carolina. The Buyer and Seller submit to the jurisdiction and venue of the courts located in Mecklenburg County, North Carolina. Furthermore, both parties waive the right to a jury trial in any action, proceeding, or counterclaim arising from the Purchase Order, this Agreement, or the transaction described herein.
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18. Notice Requirements: Notices under the Purchase Order must be in writing and addressed to the party at the address specified in the Purchase Order. Notices are effective in different ways, depending on the delivery method:
a. Personal delivery: upon delivery
b. Overnight service: upon receipt
c. Fax or email: upon confirmation of receipt
d. Certified or registered mail: within five days of mailing.
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19. Document Conflicts: If there are conflicts between the Purchase Order and any incorporated documents:
a. Conflicts between the Purchase Order and exhibits/hyperlinks are resolved in favor of the Purchase Order.
b. Conflicts between the Purchase Order and a Statement of Work (SOW) are resolved in favor of the SOW.
c. Conflicts between exhibits/hyperlinks and an SOW are resolved in favor of the SOW.
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20. Severability: If a court finds any provision of the Purchase Order illegal, invalid, or unenforceable, the remaining provisions will stay in effect, as long as the court’s decision doesn’t defeat the parties' intent.
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21. Waiver: A party’s failure to enforce strict performance of the Purchase Order’s terms doesn’t waive future enforcement of those terms or any other terms.