Purchase Order Terms and Conditions

Skybeam, LLC
Purchase Order Terms and Conditions 
for Goods and/or Services

version 1.1

In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Vendor (as defined below) agree as follows:

1. Basis of Bargain. These purchase order (hereinafter “PO”) terms and conditions submitted by Skybeam, LLC d/b/a Rise Broadband (hereinafter “Customer”) to vendor/supplier (hereinafter “Vendor”) form the basis of the bargain for the Goods and/or Services (as defined below) and constitutes the entire agreement between Customer and Vendor with respect thereto.  Customer will review Vendor’s quote or proposal, and if approved, Customer will then issue an appropriate PO to Vendor.  Customer’s obligation to accept delivery of any Vendor Goods and/or Services is contingent upon Vendor’s acceptance of these terms and conditions.  These PO terms and conditions control over any Vendor terms and conditions regardless of the means of delivery (e.g., with any invoice, a statement of sale, a sales order acknowledgement or any other Vendor document), all of which shall be deemed rejected and null and void unless otherwise explicitly agreed to in writing and signed by both parties prior to Vendor’s shipment of Goods and/or commencement of the ServicesCustomer may amend these terms and conditions at any time by posting a revised version on its website located at www.risebroadband.com/purchase-order-terms-and-conditions.  The revised version will become effective at the time it is posted.  Vendor will comply with the posted terms and conditions at the time a PO is issued and dated by Customer, or alternatively, if it is not dated by Customer at the time it is received by Vendor.  Unless otherwise indicated on a PO or in a separate written agreement between Customer and Vendor, all PO’s are nonexclusive and Customer does not make any commitment or guarantee for any minimum or maximum amount of purchases.

2. Select Definitions. As used herein, the following terms have the meaning ascribed to them as set forth below:

“Customer” means Skybeam, LLC d/b/a Rise Broadband and may include any of Customer’s controlled affiliates.

“Delivery Date” means each specific date enumerated in the applicable PO requiring delivery by Vendor.

“End-of-Life” means any termination of manufactured Goods.

“Goods” means all items of hardware or software, or other tangible products or items as set out in the applicable PO.

“PO” means a Purchase Order submitted by Customer’s authorized representative.

“Rejected Goods” means any Goods that are damaged, defective or do not conform to required specifications.

“Services” means the labor and effort necessary to fulfill the duties, commitments, obligations, and responsibilities of Vendor as set out in the applicable PO.  Services may include, without limitation, providing ideas, concepts, recommendations, interpretations, procedures, practices, processes, training, advice, knowledge, skill, talent, expertise and other such intangibles.  All right, title and interest in and to the Services, shall, at all times and in perpetuity after the expiration or earlier termination of the work or deliverable, belong to, and remain with Customer.

3. Vendor’s Acceptance or Rejection. The earliest to occur of: a) Vendor’s commencement of work on the Goods or Services ordered by Customer in the applicable PO; b) Vendor’s shipment of Goods; c) Customer’s receipt of Goods delivered by Vendor; or d) Vendor’s written notice to Customer accepting Customer’s PO, will be deemed Vendor’s acceptance of and agreement with the terms and conditions hereof.  Vendor will sell and, if applicable, license the Goods and/or Services to Customer subject to (i) the provisions of these terms and conditions, (ii) any quote or proposal accepted by Customer in writing, and (iii) all applicable Customer policies related to privacy, security and access to Customer’s networks, systems, equipment, property or premises made known to Vendor.  In the event Customer does not receive notice of acceptance from Vendor or delivery of Goods from Vendor has not occurred within the time frame specified in the applicable PO or, if no time frame is indicated in the applicable PO, within thirty (30) days after the date Customer places such PO with Vendor (beginning on the date of the applicable PO), then Customer may deem that Vendor has rejected Customer’s PO.  In addition, Customer may deem that Vendor has rejected the applicable PO if Vendor partially accepts any terms (whether communicated by notice or otherwise including, but not limited to, delivery of Goods that fail to conform fully with Customer’s order or any delivery that fails in any way to conform with the applicable PO).  In either event, Customer may avail itself of alternative vendors and shall not incur any penalties or be assessed any costs or damages in doing so.

4. Price, Authorization, and Taxes. Customer will pay the applicable PO price for the Goods and/or Services as set forth in the applicable PO (which may include the costs of producing, acquiring, selling, furnishing, providing and delivering the Goods to the specified delivery point).  Any price increase that does not conform to the applicable PO must be explicitly approved by Customer in advance and in writing.  All additional expenditures or costs not set forth in an applicable PO must be authorized by Customer in a separate, itemized, written invoice.  Any tax, duty, or similar charge that Customer may be required to pay or collect for the Goods and/or Services including, without limitation, sales, use, export, excise, ad valorem, and value added taxes, will be billed to Customer by Vendor as a separate line item.  Customer will pay only the tax itemized on the invoice.  Vendor is responsible for all taxes related to the Goods and/or Services not appropriately itemized on the invoice.

5. Inspection. All PO Goods and/or Services are subject to Customer’s inspection and approval.  Rejected Goods and/or Services will be returned at Vendor’s expense and risk.  If within thirty (30) days of delivery any Goods and/or Services are rejected by Customer, then Customer will determine in its sole discretion whether it will accept either:  a) a refund, b) a credit, or c) a replacement of the Goods and/or Services.  In the event Customer decides upon replacement Goods and/or Services, Vendor must obtain new shipping instructions from Customer.  Any replacement Goods and/or Services delivered without new shipping instructions may be returned to Vendor at Vendor’s expense and risk for reshipment in accordance with Customer’s specifications.  Goods supplied in excess of specified quantities may be either returned to Vendor at Vendor’s expense and risk or retained by Customer without additional charge.  Neither inspection nor payment by Customer for Goods and/or Services will constitute Customer’s acceptance thereof.
Should Customer receive a shortage of Goods, or receive Goods that are damaged, defective and/or non-conforming which is not apparent upon initial inspection but may become apparent upon further examination or use of such Goods, then Customer reserves the right to return the Goods to Vendor with all rights Customer has with respect to Rejected Goods.  Customer shall be entitled to full indemnity and reimbursement for all damages, loss, or expense of any kind incurred by Customer in connection with defective, non-conforming, recalled or damaged Goods delivered by or on behalf of Vendor including, without limitation, labor, downtime, freight, storage, replacement, repossession, truck rolls, transportation, Customer service outages, third-party property damage and all other costs that directly or indirectly arise from defective, non-conforming, recalled or damaged Goods, unless caused solely by Customer’s willful or gross negligence.

6. Transportation and Packaging.

(a)  Shipping Requirements.  When requested by Customer, Vendor will hold and consolidate orders and Vendor will ship only once per day, per destination.  All shipments will be Vendor’s domestic shipping point.  Freight charges will be paid by Vendor and invoiced by Vendor to Customer, with no mark-up or uplift.  Vendor is required to use an unaffiliated, nationally recognized carrier unless otherwise agreed to by Customer in writing.  Customer shall receive Vendor’s most favorable shipping rates.  Misdirected shipments will be reshipped to the correct destination and Customer shall be entitled to deduct from Vendor’s invoice(s) any costs incurred by Customer as a result thereof.  Vendor will be liable for risk of loss and excess freight charges resulting from noncompliance with Customer’s routing instructions, or, if no such instructions from Customer have been given, deviation from normal service or routing by Vendor.

(b)  Delivery Dates.  Unless otherwise mutually agreed, Vendor is required to meet the delivery dates specified in any PO.  In the event a delivery date is not met, then, without limiting any other rights and remedies available to Customer at law or in equity, Vendor agrees to: (i) reposition Customer to the front of Vendor’s manufacturing/shipping schedule; and (ii) immediately ship the pertinent Goods to Customer.  Vendor will use reasonable efforts to maintain a safety stock inventory on long lead-time Goods.

(c)  Packaging Requirements.  Vendor shall preserve, package, handle, and pack all Goods ordered by Customer hereunder so as to protect such Goods from loss or damage and in conformance with acceptable commercial practices, government regulations and other applicable standards agreed to by the Parties.  Packages and containers, including each box, shall be marked according to Customer’s requirements.  Vendor shall utilize the following guidelines and requirements in packing Good(s):

  • Each Goods container shall be labeled with the item master number (if applicable) and Goods description.
  • Date sensitive material shall be noted on the outside of the pertinent container.
  • Case quantity shall be noted on case lots.
  • Box quantity shall be noted on each box.
  • Multiple items shall not be packaged in the same box.
  • Bar coding, including the Customer part number, PO number, and container quantity.

Vendor shall be responsible for all loss, damage or harm to any of the Goods which are damaged during transit as a result of Vendor’s inadequate or improper packing and stuffing, or failure to pack and ship in accordance with these terms and conditions.

7. Payment Terms. Undisputed and accurate invoices will, at Customer’s option, be paid by mailing payment, wiring payment via Automated Clearing House, or by such other mutually agreed upon electronic payment method, within sixty (60) days of Customer’s receipt of the pertinent invoice.  Customer, at its sole discretion, is entitled to a two percent (2%) payment discount if payment is made within ten (10) days of the invoice date.  Disputed, incorrect or incomplete invoices may result in delayed payment and may be returned by Customer to Vendor for correction and reissue.  Payment of any invoice shall not constitute acceptance or approval of the respective Goods and/or Services.  Each invoice must contain a reference to the applicable PO number.

8. Change Orders. Customer may at any time issue a change order to the drawings, designs, requirements or specifications applicable to the Goods and/or Services.  If any change order affects the cost of the Goods and/or Services, an equitable adjustment, as mutually agreed upon, will be made in the purchase price.  Vendor cannot make any substitution of any Goods and/or Services without Customer’s prior written approval.

9. Suspension or Termination. Customer reserves the right to suspend (for a reasonable period) or terminate any PO at any time for convenience (without cause), in whole or in part, by providing thirty (30) days prior written notice to Vendor.  In such event, Vendor shall immediately stop all production or processing of the Goods and/or all work associated with the Services and cause any suppliers and/or subcontractors to cease all production or processing related to the applicable Goods and/or all work associated with the Services.  Upon a termination under this Section by Customer, Customer shall pay Vendor the following amounts:  (i) the PO price for all unpaid Goods and/or Services delivered to and accepted by Customer; and (ii) the actual cost incurred (exclusive of profit) by Vendor up to the date of termination, as properly allocable under generally accepted accounting practices, of Goods in the process of delivery and/or Services that have been concluded (where the Goods have actually left Vendor’s point of shipping origin); or (iii) if Customer has specifically ordered Goods that are considered unique  or special and Vendor cannot use such Goods in its normal business practices, then Customer shall pay for the completed Goods up to the date of termination.  In no event will Customer’s payment for Goods and/or Services exceed the applicable PO price.  Notwithstanding anything to the contrary stated herein, Vendor will not be paid for Goods and/or Services, work or costs incurred by Vendor or Vendor’s suppliers and subcontractors that Vendor could reasonably have avoided after receipt of a notice of termination.  Customer may terminate any PO, in whole or in part, for cause, and Customer will not be liable to Vendor for any amount other than for the Goods and/or Services delivered to and accepted by Customer in writing up to the date of termination, and Vendor shall be liable to Customer for all costs, expenses and damages sustained by Customer due to the cause that gave rise to the termination.  For purposes of this Section, the “date of termination” shall be the date of the notice of termination sent by Customer to Vendor, and “cause” shall mean any failure of Vendor to fulfill any of the warranties set forth herein or otherwise or any failure to comply with the terms and conditions hereof (including but not limited to the delivery by Vendor of Goods and/or Services that are damaged, defective, or otherwise do not conform to specifications).

10. Goods Warranties. Without in any way disclaiming implied remedies or limiting remedies for breach, Vendor represents and warrants that:  (i) all Goods delivered will be free from defect of material and workmanship, will be merchantable, safe, fit and appropriate for the purpose for which Goods of that kind are normally used; (ii) all Goods will substantially conform to the specifications, drawings, requirements and/or descriptions of the Goods that are made a part hereof and will be equivalent in all respects to any samples approved by Customer; (iii) all trademarks, trade names, patents, copyrights, intellectual property, trade secrets, rights of publicity and all other proprietary or protected interests (other than those of Customer) used by Vendor in connection with the Goods are either owned by Vendor or Vendor has all authorizations and licenses necessary to deliver the Goods to Customer; (iv) Vendor has all rights necessary to grant a license for Customer’s use of all software Goods and all software will substantially conform to published specifications current at the time of delivery or, if customized, to Customer’s specifications; (v) all Goods will be produced, labeled, shipped, invoiced, furnished, provided and delivered in compliance with all laws, regulations and ordinances, including without limitation, U.S. import and export laws; and (vi) Vendor will comply with all additional requirements of Customer when the procurement, performance, delivery, or provision of the Goods necessitate that an employee, agent or subcontractor of Vendor work within or upon Customer’s premises for thirty (30) days or more.  For third party Goods, Vendor hereby assigns or agrees to otherwise pass through, to the extent possible, the manufacturer’s or licensor’s warranties.

11. End-of-Life. Vendor will provide Customer with no less than six (6) months’ prior written notice of any termination of the manufacturing of any Goods (“End-of-Life”).  Any applicable PO issued prior to the end of such six (6) month period will be fulfilled without interruption.  Vendor will make available for Customer (if necessary) maintenance, support, repair service and replacement parts for at least two (2) years following the pertinent End-of-Life for all Goods.

12. Services Warranties. If Vendor provides any Services to Customer, then Vendor represents and warrants that it: (i) possesses adequate skill, training, expertise, knowledge and experience to perform the Services in a competent and professional manner; (ii) has sufficient personnel and equipment available to perform the Services within the milestones, timelines and time frames specified by Customer; (iii) all Vendor personnel, agents, representatives and contractors will abide by Customer’s work rules and regulations made known to Vendor when performing the Services; (iv) will deliver and perform the Services in substantial conformance with the requirements, specifications and instructions of Customer; (v) possesses or will possess all necessary rights, whether owned or acquired from third parties, to grant to Customer the stated ownership interests and licenses in and to the Services delivered hereunder (including, if necessary any right, title, and interest in and to all work or work product developed or produced in connection with the Services); (vi) will perform the Services in a good and workmanlike manner and in compliance with applicable laws, regulations and ordinances; (vii) will provide Services and any associated deliverables that do not and will not infringe upon, violate or misappropriate the patent, copyright, trade secret, intellectual property or other protected rights or interests of any third party and Vendor has not received any communication from any third Party alleging an infringement, violation or misappropriation; (viii) will maintain insurance as required herein or in compliance with applicable law so long as the Services are being provided; (ix) will assign and transfer to Customer all warranties, including warranties granted to Vendor and warranties granted to third party(s) associated with any Services in order for Customer to utilize the Services including any and all components, software, or hardware, when and as appropriate and to the extent permissible; and (x) will not do or perform any act not required by these terms and conditions and will not warehouse any materials or items required to create or deliver the Services other than as expressly set out in the applicable PO and to do so will entitle Customer to immediately terminate its relationship with Vendor.

13. Vendor Indemnification. Vendor shall, at its own cost and expense, reimburse, indemnify and hold Customer and its officers, directors, employees, agents, parent, subsidiaries and affiliates harmless from and against all claims, demands, actions, damages, loss, expense and/or liabilities including, without limitation, claims of infringement, personal injuries and death, property damage, litigation expenses and reasonable attorneys’ fees, connected with or arising from the delivery, nature, or intended use of the Goods and/or Services, a breach of Vendor’s warranties or obligations under these terms and conditions, or the acts or omissions of Vendor.

14. Insurance. Vendor shall obtain and maintain, at its expense, commercial general liability insurance to cover liabilities attributable to the Goods and/or Services and Vendor’s conduct in performance of its obligations hereunder in such amounts and with such companies and containing such other reasonable provisions satisfactory to Customer.  Vendor’s insurance will be considered the primary coverage for claims relating to the Goods and/or Services.  Vendor shall maintain workers’ compensation insurance in compliance with applicable law.  If requested by Customer, Vendor will submit certificates of insurance, in which Customer shall be named as an additional insured party.  If Vendor does not provide Customer with certificates of insurance when requested or if, in Customer’s opinion, Vendor’s insurance coverage does not provide adequate coverage, and Vendor does not furnish evidence of acceptable coverage within fifteen (15) days after Customer so notifies Vendor, Customer shall have the right to: (a) immediately terminate any applicable PO(s) and all outstanding authorizations of expenditure in whole or in part; or (b) withhold payment for the Goods until evidence of acceptable coverage is provided.  Vendor shall not pursue any claim against Customer relating to the Goods until Vendor first makes claim against Vendor’s insurance.

15. Limitation of Customer’s Liability. In no event will Customer be liable to vendor for LOST OR anticipated profits or for incidental or consequential damages under any pURCHASE oRDER.  Customer’S MAXIMUM AGGREGATE LIABILITY on any claim of any kind arising out of or in connection with thE GOODS AND/OR SERVICES DELIVERED UNDER any purchase order WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO VENDOR for the goods and/or services. IF GOODS and/or services are ONGOING, CUSTOMER’S MAXIMUM AGGREGATE LIABILITY TO VENDOR WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO VENDOR DURING THE six (6) MONTHS PRIOR TO THE LAST EVENT OCCURRING GIVING RISE TO LIABILITY.<

16. Remedies. Each party’s rights and remedies are cumulative and additional to remedies provided at law or in equity.  A waiver of a breach of any term or condition by either party does not constitute a waiver of a subsequent breach of the same provision or a breach of any other provision.

17. Excusable Delays. Vendor will not be liable for delays in delivery and Customer will not be liable for delays in receiving the Goods and/or Services when the delays are caused by acts of nature, acts of the U.S. government or any state or political subdivision, or other such causes beyond the reasonable control of the parties and without the fault or negligence of either party (each or collectively, a “Force Majeure Event”).  Any delay in providing the Goods and/or Services (including but not limited to those arising from the occurrence of a Force Majeure Event) may not extend beyond thirty (30) days without Customer’s written approval.

18. Law and JurisdictionThese terms and conditions will be governed by the laws of Colorado and specifically with the UCC Code of Colorado as to the duties, obligations and rights of the parties to the extent not expressly set forth herein. Vendor and Customer each submit to the exclusive venue and jurisdiction of the federal and state courts of Denver, Colorado for disputes pertaining to the Goods and/or Services delivered under any applicable PO. Vendor must file any claim alleging or otherwise resulting from a breach by Customer of any obligations arising with respect to these terms and conditions within one (1) year after the pertinent cause of action arises.

19. Confidentiality.

(a)  Definition of Confidential Information.  For purposes hereof, “Confidential Information” means (i) information contained in any correspondence, quotes, proposals or written communications concerning a PO; (ii) the pricing and/or quantity of Goods ordered under any PO and/or the delivery timeframes with respect to such ordered Goods; (iii) information set forth in any PO and/or any change order; (iv) information originally disclosed by either party to the other in written, graphic, machine-readable or any other tangible medium, to the extent marked with a “confidential,” “proprietary” or similar legend; and (v) information originally disclosed orally by either party, to the extent identified as confidential at the time of such original disclosure.

(b) Exceptions.  Confidential Information shall not include information which:  (i) was acquired by a party prior to the time of its disclosure by the other party, as shown by the files of the receiving party in existence at the time of disclosure, and at a time when the receiving party was under no obligation to the disclosing party to keep such information confidential; (ii) is or becomes available in the public domain through no act of the receiving party that violates this Section 19; (iii) is received by the receiving party from a third person or entity that is not known by the receiving party to be sharing such information in violation of the rights of the other party; (iv) is developed by, or on behalf of, the receiving party without any use of Confidential Information of the disclosing party; or (v) is at any time furnished to a third party by the party to whom such information belongs without restrictions on such third party’s rights to disclose.

(c) Obligations.  The receiving party shall:  (i) treat the disclosing party’s Confidential Information as it does its own valuable and sensitive information of a similar nature, and, in any event, with not less than a reasonable degree of care and protection; (ii) not divulge the disclosing party’s Confidential Information to any third party, except:  (A) the officers, directors, attorneys, accountants, independent auditors, employees, parent company, lenders (current and prospective, and including any of their attorneys and advisors) and/or investment bankers (current and prospective, and including any of their attorneys and advisors) of the receiving party, on a need to know basis and provided such third party is subject to confidentiality provisions at least as restrictive as those set forth in this Section 19 (each of the parties described in this clause (A) may hereinafter be referred to as an “Authorized Third Party”); or (B) subject to Section 19(d) herein, in order to comply with applicable law; (iii) refrain from copying the disclosing party’s Confidential Information, in whole or in part, except as required in furtherance of the uses permitted hereunder and subject to the accurate reproduction of all proprietary legends and notices located in the originals; and (iv) not use the disclosing party’s Confidential Information, except as necessary for the receiving party to perform its obligations in accordance with these terms and conditions.

(d) Required Disclosure.  If the receiving party becomes compelled to disclose any Confidential Information of the disclosing party pursuant to applicable laws, rules or regulations, or pursuant to the rules and regulations of any stock exchange or stock association on which securities of the receiving party may be traded from time to time (each, a “Legal Requirement”), the receiving party shall, to the extent not otherwise prohibited by law, provide the disclosing party with prompt notice of any such Legal Requirement and shall cooperate with the disclosing party, at the disclosing party’s expense, in seeking to obtain any protective order or other arrangement pursuant to which the confidentiality of the disclosing party’s Confidential Information is preserved.  If such an order or arrangement is not obtained, the receiving party shall disclose only that portion of the disclosing party’s Confidential Information as is required pursuant to such Legal Requirement.

(e) Return or Destruction of Confidential Information; Liability for Authorized Third Parties.  Upon the disclosing party’s written request, the receiving party shall return, or certify the destruction of, all of the disclosing party’s Confidential Information.  The receiving party shall, in all events, be responsible to the disclosing party for any action or inaction by any Authorized Third Party in violation of the provisions of this Section 19.

(f) Advertising/Publicity.  Neither party shall use the other party’s names, marks, codes, drawings or specifications in any advertising, promotional efforts or publicity of any kind without the prior written permission of the other party.  Neither party shall issue any press release or any other public announcement regarding any applicable PO, including the existence thereof, without the prior written approval of the other party.

(g) Equitable Relief.  Each party acknowledges that the rights being protected by the terms of this Section 19 are of a special, unique, unusual and extraordinary character, which gives them a particular value, and the disclosing party may be irreparably injured by a breach of this Section 19 by the receiving party.  In addition to any other remedies available at law or in equity to the disclosing party, the disclosing party shall, without having to post bond, be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 19 by the receiving party.

(h) Survival.  The obligations of confidentiality set forth in this Section 19 shall survive for three (3) years from the date of or earlier termination of the applicable PO to which these terms and conditions apply.

20. Assignment. Vendor may not assign any PO, in whole or in part, without the written consent of Customer.  The provisions of the following sections will survive the termination of a PO and the delivery of Goods: “Inspection and Rejection,” “Warranties;” “Vendor Indemnification,” “Limitation of Customer’s Liability;” “Remedies;” “Law and Jurisdiction” and “Confidentiality.”

21. No Third Party Beneficiaries. The parties agree that the terms and conditions hereof and the parties’ respective performance of obligations are not intended to benefit any person or entity not a party to the applicable PO, that the consideration provided by each party only runs to the parties thereto, and that no person or entity not a party to the applicable PO shall have any rights under it nor the right to require the performance by either of the respective parties.

22. Notice. Any notice required by the terms and conditions hereof must be in writing and must be sent overnight by a nationally recognized courier service or postage prepaid by certified mail, return receipt requested.  Notices to Customer will be sent to: 61 Inverness Dr. E., Suite #250, Denver, CO 80112, Attention: Strategic Procurement, with a copy to the same address, Attention: Legal Department.  Notices to Vendor will be sent to Vendor at Vendor’s address listed on the applicable PO unless Customer is informed otherwise by Vendor.  Notice is deemed given (effective) upon the date of receipt thereof when sent by courier service or five (5) days after being placed in the United States mail when sent by certified mail.

23. Amendments. These terms and conditions may not be amended, superseded or replaced by terms and conditions of sale that are part of a Vendor’s invoice, statement of sale, sales order acknowledgement, other Vendor document or any other means unless Customer expressly agrees in advance to such amendment, superseding or replacement as evidenced by authorized signature by the appropriate Customer representative and in any event, not by action or inaction after receipt of a Vendor document.

24. Independent Contractor. The parties agree that Vendor and its employees and agents are independent contractors for all purposes and not employees or partners of, or joint venturers with, Customer.  Nothing herein or in any applicable PO shall be deemed to constitute a fiduciary relationship between Customer and Vendor, nor shall anything be deemed to create an agency relationship between Vendor and Customer.  Neither Vendor nor Customer shall be or become liable or bound by any representation, act or omission whatsoever of the other.  Vendor will furnish at its cost and expense all labor, equipment, materials, travel, supervision, training and any other items necessary to provide the Good s and/or Services.  Vendor will be solely responsible at all times for withholding or payment of all Federal, State and local income and other payroll taxes with respect to its employees, including contributions from them as required by law, and for its acts and omissions or the acts and omissions of its agents, employees, and subcontractors.

25. Entire Agreement. These terms and conditions, together with the applicable PO(s) and/or any attachments issued or entered into pursuant to these terms and conditions, constitute the entire agreement between the parties. Any prior or contemporaneous oral or written communications or agreements of the parties with respect to the Goods and/or Services not expressly set forth herein, in the applicable PO and/or attachments are of no force or effect and these terms and conditions supersede all other prior or contemporaneous representations, discussions, negotiations and agreements, whether written or oral between the parties relating to the subject matter hereof.  No waiver of any provision hereof or any right or obligation of a party will be effective unless in writing and signed by the party waiving such provision or right.  The failure of either party to enforce a right shall not constitute a waiver.