VERDESIAN LIFE SCIENCES U.S. LLC TERMS AND CONDITIONS OF PURCHASE
- Offer and Acceptance. These Terms and Conditions, together with the terms the face of this document, any agreed upon attachments hereto and any agreed upon documents expressly referenced in the face hereof (collectively, this “Contract”) constitute the complete and entire agreement between Verdesian Life Sciences U.S., LLC or any of its affiliates identified on the face hereof (“Buyer”) and the seller to whom it is addressed (“Supplier”) in accordance with its terms. Supplier offers to sell to Buyer and Buyer is willing to purchase from Supplier the products, items, materials, raw materials, chemicals, goods and/or services identified in this Contract (collectively “Products”). Supplier accepts this Contract by any reasonable indication of acceptance, including without limitation if Supplier: 1) fails to object to Buyer in writing within five (5) days of receipt of this Contract, or (ii) begins work on or ships Products to Buyer. Acceptance is limited to the terms of this Contract and Buyer rejects any and all additions, exceptions, deletions, modifications, or changes to these terms, whether contained in any printed form of Supplier or elsewhere, unless expressly referencing this Contract and accepted to in a writing signed by an authorized representative of Buyer. This Contract may be amended, modified, or supplemented only in a writing signed by an authorized representative of Buyer. This Contract supersedes any prior contracts, proposals, understandings, offers or course of conduct existing with respect to the subject matter of this Contract.
- Pricing, Changes, Payment. Pricing is firm and is not subject to change unless otherwise agreed to in writing by Buyer. Unless otherwise agreed in writing, prices for Products include all applicable federal, state, provincial, and local taxes and import duties. Buyer retains the right of setoff. Buyer may notify Supplier of changes to the drawings, specifications, quantity, delivery or other requirements (such notice, a “Change Notice”), however the time for performance and price will not change unless Supplier notifies Buyer within five (5) days of Buyer’s providing a Change Notice that such changes will require a price change and Supplier provides supporting documentation reasonably setting forth the basis for any such price change, in which case the parties will negotiate an equitable adjustment regarding the time for performance and/or price. The terms of this Contract, including without limitation, the nature, type or quality of any services, raw materials or goods used by Supplier or its suppliers, may not be changed without the prior written approval of Buyer. Any general price reduction made by Supplier with respect to any Product ordered, subsequent to the placement of this Contract by Buyer, and prior to Buyer’s receipt of the Product, will apply to this Contract. Supplier represents that the prices charged to Buyer are the best or lowest prices charged by Supplier to buyers purchasing comparable quantities and similar delivery conditions. Unless otherwise agreed to in writing by Buyer, payment terms are net sixty (60) days. All invoices and/or advance shipping notices must reference the purchase order number, amendment or release number, and as applicable Buyer’s part / SKU number, Supplier’s part number, quantity in units or Units of Measurement shipped and number of cartons or containers, Supplier’s name and contact information, and bill of lading number, for payment to be made.
- Electronic Communication & Financials. Supplier will utilize electronic communication methods reasonably specified by Buyer, including requirements for vendor managed inventory, electronic funds transfer, purchase order transmission, electronic signature and/or communication. Upon Buyer’s request, Supplier will furnish to Buyer current financial reports, income statements, balance sheets, cash flow statements and supporting data, for itself and any related company of Supplier involved in producing, supplying, or financing the Products.
- Volume & Quantity. Any estimates, forecasts or projections of future quantity requirements for Products by Buyer are provided for informational purposes only and are subject to change and do not constitute an offer or obligation by or of the Buyer to purchase Products. If quantities and delivery schedules are not specified in this Contract, they will be as reasonably determined by Buyer and stated in releases or schedules issued to Supplier periodically. If Supplier is under a vendor managed inventory system, Supplier will at all times maintain Buyer’s supply at the agreed levels.
- Shipping, Delivery & Acceptance. Supplier will ship Products using best commercial practices complying with Buyer’s and all legal and regulatory requirements as to packaging, labeling, shipping notification and freight, warnings, patterns, samples, drawing functionality, installation, maintenance and other relevant instructions and operating environment requirements. All the costs and expenses relating to handling, packaging, storage or transportation (including duties, taxes, fees, and the like) of the Products unless otherwise stated in this Contract are included in the price. Supplier will bear all risk of loss until Products are delivered and accepted by Buyer by Buyer’s location. Time is of the essence as deliveries will be made in the quantities and on the dates specified by Buyer in this Contract or subsequent releases or instructions to meet Buyer’s production requirements. Unless otherwise stated in this Contract, delivery terms will be FCA, Free Carriage, Buyer’s dock (Incoterms 2010). Supplier will be responsible for any premium freight charges required to meet on-time delivery. Buyer will not be required to accept partial deliveries or Products that are delivered in advance of the delivery date or in incorrect quantities or failing to conform strictly to the specifications set forth on the face hereof. Products received by Buyer are subject to inspection and acceptance, notwithstanding any payment, and Products rejected as non-conforming may be returned to Supplier at Supplier’s sole cost and expense and shall not be replaced except upon order of Buyer. Payment shall not be construed as a waiver of Buyer’s rights and if a Product is rejected after payment, Buyer shall be entitled to return the same for full refund or, in the case of services Buyer may reject the work and receive restitution or require Supplier to perform the work as necessary.
- Certification Statements and Customs. As to Products that are raw material, Supplier will provide a signed quantitative test report showing conformance to the specifications for each shipment – Certificate of Analysis, COA. The certification will identify, when applicable, the material specification; manufacturer (and vendor if different); lot, batch, quantity of material covered; date of shipment and carrier; Buyer’s purchase order and material code numbers; and statistical test results obtained. If the certification is accompanying the shipment, the shipping unit containing the document must be clearly marked as such so the certification is readily available to the receiving personnel. As further provided herein, Supplier will provide Buyer with a certificate of origin and/or a manufacturer’s affidavit, and applicable customs documentation for any Products manufactured in whole or in part outside of the USA as well as any requested NAFTA documentation, as applicable.
- Quality, Service and Replacement Parts. Supplier will promote continuous quality improvement and like industry standard processes as may apply to goods or services similar in nature to the Products, in the manufacture, production and distribution of Products, and as otherwise reasonably identified to Supplier by Buyer in its technical data sheets, quality manuals, and instructions, and will permit Buyer to verify and inspect on site at the applicable manufacturing, production, and distribution facilities of Supplier such processes from time to time and upon Buyer’s request.
- Warranty. Seller warrants to Buyer that for a period of 24 months from the delivery date of the Products to Buyer that all Products will:
(a) be free from any defects in workmanship, material and design;
(b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer;
(c) be fit for their intended purpose and operate as intended;
(d) be merchantable;
(e) be free and clear of all liens, security interests and other encumbrances; and
(f) not infringe or misappropriate any third party’s patent or other intellectual property rights.
The warranties set forth in this Section 8 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of the Buyer’s discovery of the noncompliance of the Products with the foregoing warranties. If Buyer gives Seller notice of the noncompliance pursuant to this Section, at Buyer’s option, Seller shall, at its own costs and expense, (a)(i) replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Seller and the delivery of repaired or replacement Products to Buyer, and if applicable, (ii) repair or re-perform the applicable services or (b) credit the Buyer for the cost of Products, including all related costs and expenses.
- Ownership of Proprietary Materials. Except as specifically stated in this Contract, neither party transfers to the other party any patent, trade secret, trademark, copyright or other intellectual property right owned by such party (“Intellectual Property Right”). Supplier grants to Buyer a fully paid up, worldwide, non-exclusive right and license of Supplier’s Intellectual Property Rights to: (a) use, sell, and modify Products and incorporate Products into other products for use or sale; and (b) in the case where Supplier is unable to perform or breaches this Contract, to make Products or have Products made by an alternate source. All works of original authorship, ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, and other intellectual property created by Supplier for which the development was directly or indirectly (by amortization) paid for by Buyer (collectively, “Proprietary Materials”), and all Intellectual Property Rights in such Proprietary Materials, are exclusively owned by Buyer. Supplier agrees to assign and hereby assigns to Buyer all its rights, title and interest to Proprietary Materials, free and clear of all liens, charges or other encumbrances. Supplier agrees to cooperate with Buyer or its designee(s), both during and after the term of this Agreement, in the procurement and maintenance of Buyer’s rights in the Proprietary Materials and to execute when requested any other documents deemed necessary to carry out the purposes of this section. Supplier will ensure that all employees, subcontractors, agents and representatives of Supplier will have written contracts on or before the effective date of this Contract that grant Supplier all such employees’, subcontractors’, agents’ or representatives’ ownership and other rights in the Proprietary Materials.
- Limited Trademark License. If specified by Buyer in writing in the Contract, Buyer grants to Supplier a non-exclusive, non-transferable, limited license, with no right to sublicense, to reproduce and use those trademarks, service marks, logos, commercial symbols and other indicia of trade origin of Buyer (collectively “Buyer Marks”) solely for the manufacture and sale of Products to Buyer. Supplier may not use Buyer Marks in any other manner. Supplier’s reproduction and use of the Buyer Marks, and all goodwill established and/or symbolized thereby, will inure exclusively to the benefit of Buyer and this Contract does not confer any goodwill or other interests in the Buyer Marks upon Supplier. Supplier will not challenge or contest the validity of the Buyer Marks, any registration of the Buyer Marks with the U.S. Patent and Trademark Office or with any foreign government or the ownership of the Buyer Marks by Buyer or its affiliates. Supplier shall not represent that it has any ownership interest in the Buyer Marks or registrations therefore. Once Supplier no longer supplies Products to Buyer, or earlier upon Buyer’s notice, Supplier will immediately discontinue all use of Buyer Marks. The terms of this Section 10 will survive termination of this Contract.
- Indemnification. Supplier will indemnify, defend and hold harmless Buyer, its and its affiliates, partners, directors, officers, employees and agents (the “Buyer Indemnitees”), from and against any and all actions, claims, demands, judgments, losses, costs, liabilities, damages, any type of liability for environmental contamination and clean-up cost, additional insurance costs and premiums, other expenses and/or fees (including reasonable attorneys’ fees) of whatever kind (“Claims”) that are incurred by or asserted against Buyer related to or arising from any actual or alleged: (a) infringement of any patent, trademark, copyright, trade secret, industrial design right, or other proprietary right, by reason of the manufacture, use or sale of the Products, except to the extent the infringement results directly from a design furnished by Buyer; (b) defect in any Products; (c) non-conformance of the Products with specifications hereof; (c) noncompliance by Supplier of its representations, warranties, or obligations under this Contract; or (d) negligence, fault or willful misconduct of Supplier or its affiliates, its and its affiliates contractors or agents in connection with the design or manufacture of Products or wrong or in-complete installation, shipping, use, maintenance, environmental health or safety instructions, including any reasonably required post-sale warnings. Supplier will not make any admissions on behalf of Buyer or enter into a settlement without Buyer’s prior written consent. The indemnification obligations of Supplier under this Section are not exclusive and are in addition to, and shall not impair or exclude Buyer’s rights or remedies otherwise available to Buyer, under applicable law, and all such rights and remedies of Buyer are cumulative.
- Insurance Requirement. In addition to specific insurance requirements which may be set out in this Contract, throughout the term of this Contract and the warranty period of any Products, Supplier shall have and maintain at its expense: (a) general and public liability insurance with coverage limits reasonably acceptable to Buyer and naming Buyer as an additional insured; (b) all risk property perils insurance covering the full replacement value of bailed property (if applicable) while in Supplier’s care, custody, or control and naming Buyer as loss payee; and (c) worker’s compensation insurance as required by applicable law. Insurance coverage amounts shall in no case be less than as standard in the industry, and shall be with carriers with at least an A.M. Best rating of “A” excellent, and a financial size rating of at least Class V. Supplier will furnish to Buyer certificates of insurance setting forth the amount of coverage, policy number, date(s) of expiration, and Buyer’s status as an additional insured or loss payee. Supplier shall provide at least sixty (60) days’ prior written notice to Buyer of cancellation or material alteration of insurance.
- Confidentiality. If Supplier has access to Buyer’s confidential or proprietary information, including, without limitation inventions, developments, know how, specifications, business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and compilations of data (“Confidential Information”), Supplier will use Confidential Information only for the purposes contemplated under this Contract and shall not disclose it to third parties or otherwise use it for any other purpose. Confidential Information will not include information which: (a) is or becomes publicly available without breach of this Agreement by Supplier; (b) was known to Supplier prior to its receipt from Buyer as evidenced in dated documentation; or (c) is developed by Supplier independently of its access to Confidential Information as evidenced by dated documentation. Supplier is permitted to disclose Buyer’s Confidential Information only to those of its employees and authorized subcontractors on a need to know basis as is required for Supplier to perform its obligations under this Contract, provided that such employees and authorized subcontractors have written confidentiality obligations to Supplier that apply to Confidential Information which obligations are no less stringent than the confidentiality obligations under this Section. Upon termination of this Contract, Supplier shall return Confidential Information and shall not use Confidential Information for its own, or any third party’s benefit. Supplier’s confidentiality obligations shall survive termination of this Contract for so long as Confidential Information remains confidential. In order to assure that Buyer is able to obtain the full benefit of the restrictions set forth in this Section, Buyer shall be entitled to injunctive relief, including, but not limited to, emergency, preliminary, temporary and permanent injunctions, from any court of competent jurisdiction as may be necessary to enjoin any violation of the foregoing covenants, without the necessity of proving immediate irreparable harm or an inadequate remedy at law. If the parties have already entered into a Confidentiality or Non-Disclosure Agreement (“NDA”), the terms and conditions of the NDA shall apply and control for confidentiality obligations between the parties in lieu of this section.
- Termination for Cause; Termination for Convenience. Either party may upon written notice to the other party terminate all or any part of this Contract without further liability on the part of the party who provides such notice, if the other party: (a) is in Default of this Contract, however, if the Default can be cured then only if such Default is not cured within fifteen (15) days of receipt of written notice of the Default from the non-defaulting party; or (b) has committed a material breach of this Contract, which cannot be cured. A party shall be in “Default” under this Contract if it fails to perform any obligation under the Contract, breaches any representation or warranty under this Contract, or fails to provide adequate assurance of performance under the Contract within a reasonable time after written and justifiable demand by the other party. Buyer may terminate this Contract at any time for its convenience, by notice to Supplier, and from and after such notice Supplier shall not make new commitments for any raw materials, inventory or services related to the Products under this Contract without the prior written approval of Buyer. If this Contract is terminated by Buyer for convenience, Buyer will pay Supplier for raw materials unique to the Products, work-in-process and finished goods in inventory for the Products authorized under a release or schedule from Buyer that are useable and in a merchantable condition (“Inventory”) remaining in Supplier’s possession on the termination date, after receipt of payment for such Inventory from Buyer’s customer and delivery of such Inventory to Buyer. The purchase price for the Inventory, which shall be Supplier’s sole and exclusive recovery from Buyer on account of termination for convenience, will be (a) the contract price for all conforming Products that have been completed in accordance with this Contract as of the termination date and not previously paid for, plus (b) the actual documented costs of work-in-process and raw materials incurred by Supplier in furnishing the Products to the extent such costs are reasonable in amount and which can be apportioned under generally accepted accounting principles to the terminated portion of this Contract, less (c) the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Supplier with Buyer’s written consent. If Buyer’s customer is unreasonably delayed in making payment for Inventory, Buyer shall negotiate a good faith settlement with Supplier. In no event will Buyer be required to pay for Inventory that Supplier fabricates or procures in amounts that exceed amounts authorized in Buyer’s delivery release or schedules, nor will Buyer be required to pay for any goods or materials that are in Supplier’s standard stock or that are readily marketable. Payments made under a termination for convenience will not exceed the aggregate price for finished goods that would be produced by Supplier under a delivery release or schedule outstanding on the date of termination. Within sixty (60) days after the effective date of a termination for convenience, Supplier will submit a detailed termination claim to Buyer, with sufficient supporting data to permit an audit by Buyer, and will thereafter promptly furnish any supplemental and supporting information Buyer reasonably requests.
Upon any termination of this Contract, Supplier shall: (a) take all actions reasonably necessary to protect property and Inventory in Supplier’s possession in which Buyer has an interest until disposal instruction from Buyer has been received; and (b) return Buyer’s Confidential Information to Buyer.
- Limitation on Buyer’s Liability. BUYER WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, OR COST OF CAPITAL. Buyer’s liability on any claim of any kind for loss or damage arising out of or in connection with resulting from this Contract from the performance or breach thereof shall in no case exceed the price allocable to the Products which gives rise to the claim.
- Force Majeure. Neither party shall be liable to the other party for delay in a scheduled delivery or a failure in performance caused by acts beyond such party’s reasonable control without fault or negligence of such party, such as, without limitation, fire, windstorm, act of God, flood, war, embargo, acts of terrorism or public enemy, riot, or the intervention of any government authority (“Force Majeure”), provided such party presents a claim and notice in writing to the other party as soon as possible after such party becoming aware that an event of Force Majeure may delay or interrupt performance hereunder. If Supplier is unable to perform for any reason, Buyer may purchase Products from other sources and reduce its purchases from Supplier accordingly without liability to Supplier.
- Inspection and Audit. Supplier agrees to deliver to Buyer samples of the Products upon request for testing, whether overseas or in the USA. Buyer shall have the right to inspect and audit Supplier’s books, records, operations and facilities related to this Contract, including Supplier’s quality system, to insure Supplier’s compliance with the terms of this Contract and Buyer and Buyer’s customer standards. Supplier shall maintain all records necessary to support amounts charged to Buyer under this Contract. Supplier shall provide Buyer with reasonable access to its facilities and otherwise cooperate and facilitate any such inspections and/or audits by Buyer.
- Independent Contractors. Buyer and Supplier are independent contractors, and nothing in this Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party. Supplier assumes full responsibility and exclusive liability for the payment of all contributions, unemployment obligations, payroll taxes, federal, state, provincial, local and foreign, if applicable, as to all employees engaged in the performance of Supplier’s work under this Contract.
- Governing Law, Jurisdiction and Venue. This Contract shall be governed by and construed in accordance with the laws of the State of North Carolina, including its statutes of limitation, but without reference to the choice of law principles thereof. Each party irrevocably submits to the jurisdiction of the Courts of the State of North Carolina and the United States District Court for the Middle District of North Carolina and hereby waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
- Assignment, Waiver, Entire Agreement, Severability. Neither party may assign this Agreement in whole or part without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Buyer may, in its sole discretion, and without Supplier’s consent assign this Agreement, in whole or in part or with respect to any of its rights and obligations hereunder, to any affiliate or successor company or entity resulting from a sale of assets, shares or other ownership interest, merger, operation of law, reorganization or consolidation. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such affiliate or successor and any permitted assignees of the respective parties hereto. Consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. If Buyer consents to Supplier subcontracting of any of its duties under this Contract, Supplier will ensure that the subcontractor agrees to be bound by all of the terms and conditions of the Contract. Buyer may terminate this Contract upon written notice to Supplier, without any further liability to Supplier, if there is a change of control of Supplier, by operation of law of otherwise.
- General. The failure of either party to enforce any right or remedy provided hereunder or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.
- Compliance. Supplier will at its expense comply with all federal, state, provincial, local and foreign laws, orders, rules, regulations and ordinances, including import and export laws and regulations (“Laws”), that may be applicable to Supplier’s performance of its obligations under this Contract; and shall identify and procure required permits, certificates, licenses, insurance, approvals and inspections in performance of this Contract. At Buyer’s request Supplier will certify in writing its compliance with all applicable Laws. Supplier will indemnify and hold Buyer harmless from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional or expert fees) arising from or relating to Supplier’s noncompliance of any laws and regulations. Any provision which is required to be a part of this Supplier shall provide Buyer with material safety data sheets for Products and all other information required to comply with applicable laws. For programs involving the supply of goods or services to the US Government, Supplier shall accept the flow-down of applicable Federal Acquisition Regulations and shall maintain the capability to meet all of the requirements of such regulations including, without limitation, requirements as to cost and pricing data, truth in negotiation and procurement integrity. Additional or more specific legal compliance and/or social responsibility provisions may be added to this Contract in: (a) an attached COMPLIANCE WITH LAWS ADDENDUM or (b) published on Buyer’s website.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Contract or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has compiled with the requirements of this Section.
- Survival. The provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination of expiration of this Agreement, including, but not limited to the following provisions: Insurance, Compliance, Confidentiality, Governing Law, Limited Trademark License, Jurisdiction and Venue, Limitation of Liability and Survival.