1. Acceptance Mercy BioAnalytics, Inc. (“Buyer”) hereby offers to purchase from the vendor named on the face hereof (“Seller”) the products and services described on the face hereof (and any deliverables resulting from such services) (respectively, “Products” and “Services”) subject to these terms and conditions. These Standard Terms and Conditions of Purchase, together with information contained on the face hereof, any specifications or requirements provided by Buyer, and any additions or revisions permitted herein or otherwise mutually agreed to in writing by Seller and Buyer (the “Purchase Order”) shall constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase of Seller’s Products or Services, superseding all prior oral or written understandings relating thereto and shall not be modified or interpreted by reference to any prior course of dealing, usage of trade or course of performance. At any time, Buyer may make changes in the Products and Services (including but not limited to the quantity, specifications or date of delivery). In the event of an increase or decrease in Product quantity, the price payable by Buyer shall be increased or decreased, as applicable, based on the per-unit price stated on the face of this Purchase Order. If any other change made by Buyer causes a change in the cost of producing the Product or performing the Services, Seller shall notify Buyer within 3 business days of Buyer’s change request, in which event the parties shall negotiate an equitable adjustment, which, if agreed, shall be memorialized by both parties in writing. Seller’s failure to notify Buyer within such 3 business day period shall constitute Seller’s acceptance of Buyer’s requested changes without adjustment in price. Substitutions (such as of raw materials, components or final Products) or changes in quantities or specifications shall not be made by Seller without Buyer’s prior written approval. If Seller’s order acknowledgement, invoice or any other communication from Seller contains terms and conditions, this Purchase Order shall prevail and Buyer hereby notifies Seller of its objection to and rejection of any such terms and conditions stated by Seller, whether or not material, that are in conflict with, inconsistent with, or in addition to those contained in the Purchase Order. Seller’s (1) failure to object within 10 days to any terms contained in the Purchase Order or (2) commencement of performance shall constitute Seller’s acceptance of all terms and conditions in the Purchase Order.
2. Prices Buyer shall pay to Seller, for Products and Services ordered and accepted by Buyer, the prices set forth on the attached face of this Purchase Order. Unless otherwise stated on the face hereof or elsewhere herein, all such prices are in U.S. Dollars and FOB Buyer’s facility to which Products are to be shipped and are complete. No additional charges of any type shall be added without Buyer’s express written consent.
3. Taxes State and local sales and use taxes which by statute must be passed on to Buyer shall be separately stated in each invoice indicating the tax and once paid by Buyer, no additional tax assessments with respect to such invoiced amounts shall be paid. Buyer shall have no responsibility for customs, duties or other fees imposed by a governmental authority or taxes based on Seller’s income or property or Seller’s employer-related taxes.
4. Terms of Payment Unless otherwise stated on the face hereof, Buyer shall pay all undisputed amounts due for Products or Services purchased hereunder within thirty (30) days after (a) Buyer’s receipt of Seller’s invoice or (b) if later, Buyer’s acceptance of the Products or Services.
5. Shipping & Delivery Seller shall be responsible for packing, shipping, and safe delivery of all Products and shall bear all risk of damage or loss until the Products are delivered to, and accepted by, Buyer. Seller will deliver Products, complete the Services and provide all Services-related deliverables within three (3) days of the applicable delivery dates set forth on the face of this Purchase Order. If the Purchase Order does not specify a delivery date, Seller shall provide the Products and Services as if time is of the essence.
6. Inspection (a) Products and Services are subject to Buyer’s inspection, testing and acceptance at destination. Payment therefor by Buyer shall not constitute acceptance. Unless otherwise stated herein, title to the Products shall remain with Seller until acceptance by Buyer hereunder, (b) Buyer shall have a commercially reasonable time after delivery of the Products or provision of the Services to inspect and conduct commercially reasonable acceptance tests in respect of the Products and Services. Acceptance of any installment shall not be deemed acceptance of Buyer’s entire order or of any subsequent installment. Any acceptance of Products or Services received pursuant to this Purchase Order expressly made or implied from Buyer’s conduct is conditioned upon Seller’s cure of any nonconformity with the specifications for such Products or Services, (c) If any Products or Services fail to conform to the relevant specifications or the terms hereof or are not delivered by the delivery date, Buyer may reject such Products or Services by providing Seller with notice of such rejection within thirty (30) days after delivery of such Product or Services to Buyer. (d) Buyer shall be entitled to a prompt refund of the purchase price (together with reimbursement for insurance and freight charges) of such rejected Products or Services if Seller does not provide Buyer with replacement Products within ten (10) days of notice of rejection or promptly reperform Services at no additional charge.
7. Warranties Seller warrants all Products and Services furnished under this Purchase Order: (a) to be free from defects in design, materials and workmanship; (b) to be of merchantable quality; (c) to conform to any specifications or other requirements provided by Buyer; (d) to be fit and sufficient for their intended purposes and (e) to be new and not refurbished or reconditioned. Seller further warrants that: (i) it has and is conveying to Buyer, clear and marketable title to all Products or deliverables resulting from Services, provided hereunder, free from all liens and encumbrances; (ii) all Products and Services provided hereunder and Seller’s performance hereunder comply with all applicable laws, rules and regulations (including applicable laws on export control and data privacy and protection) and do not violate or infringe upon any third party intellectual property or other rights or interest of any nature and (iii) it has all rights, licenses, permits and consents necessary to perform its obligations under this Purchase Order. In the case of the performance of Services, Seller warrants that it shall perform the Services in a professional manner in accordance with applicable industry standards. Such warranties shall survive any inspection, acceptance, delivery, payment for the Products and Services and termination of the Purchase Order and shall inure to the benefit of Buyer, its successors, assigns and customers. Nothing herein shall limit any other warranties, express or implied, available to Buyer under applicable law. Buyer’s warranty rights hereunder are in addition to, but shall not be limited by, any standard warranties offered by Seller.
8. Limitation of Liability IN NO EVENT WHATSOEVER SHALL BUYER HAVE ANY LIABILITY TO SELLER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PURCHASED HEREUNDER, THE TRANSACTIONS CONTEMPLATED HEREBY, OR SELLER’S OR BUYER’S CONDUCT OR ACTIONS IN RELATION TO ANY OF THE SAME OR TO EACH OTHER, IN AN AMOUNT IN EXCESS OF, AND BUYER’S LIABILITY SHALL BE STRICTLY LIMITED TO, THE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH GIVE RISE TO BUYER’S LIABILITY. IN NO EVENT SHALL BUYER HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSQUENTIAL OR PUNITIVE DAMAGES, EVEN IF BUYER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF.
9. Indemnification Seller agrees to indemnify, hold harmless and defend Buyer and its officers, directors, employees and agents from and against any and all liabilities, damages, losses, harm, expenses and costs (including, but not limited to, court costs and attorneys’ fees) arising out of or resulting from third party suits, claims, actions or demands which relate to or arise out of (a) Seller’s design, manufacture, assembly, use, handling, sale or distribution of the Products or performance of Services sold hereunder; (b) infringement by any Product or deliverable resulting from the Services of any third party intellectual property right, (c) Seller’s breach of any representation, warranty or obligation hereunder; (d) Seller’s actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (e) negligence or willful misconduct of Seller. This indemnity will survive Buyer’s acceptance of and payment for the Products and Services hereunder and any termination of this Purchase Order and will not be limited in any manner by insurance coverage maintained by Seller.
10. Waiver A party shall not be deemed to have waived any provision hereof, or any breach by the other party of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized officer of the party granting the waiver. No waiver of any provision hereof or any breach by the other party shall constitute a waiver of such provision on any other occasion or a waiver of any other breach by the other party.
11. Governing Law This Purchase Order and the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts without regard to its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Purchase Order or any purchase or sale made hereunder.
12. Severability If any provision, term or condition hereof shall be found by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, it shall be limited or eliminated to the minimum extent necessary so that the Purchase Order shall remain in full force and effect.
13. Amendments This Purchase Order may not be amended except by written agreement of Seller and Buyer expressly referring hereto.
14. Assignment; Subcontracting Seller’s rights and obligations hereunder may not be assigned or otherwise transferred, delegated or subcontracted without Buyer’s express prior written permission.
15. Termination If either party materially breaches this Purchase Order and such breach is not remedied within thirty (30) days after receipt by the breaching party of a notice thereof from the other party, the non-breaching party may immediately terminate this Purchase Order. Sections 7 through 19 of this Purchase Order shall survive any termination of this Purchase Order. Buyer shall also have the right to cancel all or part of this Purchase Order, without cause, at any time by written notice at least five (5) days prior to the Product shipment date or Services completion date, and Buyer shall pay reasonable cancellation costs in accordance with industry practice, provided that in no event shall the total amount payable by Buyer exceed the lesser of the price specified in the Purchase Order and demonstrable costs reasonably incurred prior to cancellation.
16. Proprietary Information Any technical, financial, business or other information provided by or on behalf of Buyer to Seller (“Confidential Information”) shall be held in strict confidence, shall not be used except to the extent necessary to carry out the Seller’s obligations hereunder and shall not be disclosed to any third party without Buyer’s prior written consent. Further, Seller shall disclose Confidential Information only to those employees and consultants who have a need to receive such Confidential Information for Seller to perform its obligations hereunder, who are apprised of the confidential nature of the Confidential Information and who have agreed in writing to be bound by confidentiality obligations at least as restrictive as those contained in this Purchase Order. The terms of this Purchase Order are Buyer’s Confidential Information. This obligation will not apply to information that Seller can establish by independent written records: (i) is generally and freely publicly available through no fault of Seller, (ii) Seller otherwise rightfully obtains from third parties without restriction, provided such third parties had the legal right to make such disclosure without restriction, (iii) was rightfully known by Seller without restriction prior to disclosure by Buyer, or (iv) is independently developed by employees of Seller with no knowledge of or access to Buyer’s Confidential Information. Further, no activity of Buyer relating to the promotion, use or sale of Products or deliverables of the Services (or products incorporating them) or the exercise of any right hereunder will be deemed to violate this Section 6 or any other Seller intellectual property right. In no event shall Seller use or allow to be used Buyer’s name, trademarks or logos in any advertising, promotional literature or publication without Buyer’s prior written consent. All information disclosed to Buyer by or on behalf of Seller in connection with this Purchase Order is furnished as consideration for Buyer’s placement of this order. This information is not to be treated as confidential or proprietary and no claims shall be asserted against Buyer for its disclosure or use.
17. Relationship of Parties Notwithstanding any provision hereof, for all purposes of this Purchase Order each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Seller is acting as an independent contractor and Seller is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to Seller, including, but not limited to, appropriate Workers’ Compensation Insurance; and Seller agrees to defend, indemnify and hold Buyer harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by Seller to satisfy any such obligations.
18. Title Title to and right of immediate possession of all articles, tooling, equipment, software or materials furnished to Seller or paid for by Buyer directly or indirectly for use by Seller in connection with this Purchase Order shall remain with Buyer. Seller shall be (a) responsible on a replacement cost basis for all loss or damage to such articles, tooling, equipment, software or materials while in its possession and insure its risk in this respect with adequate property insurance, (b) clearly mark the same as belonging to Buyer, keep it segregated in Seller’s facility and treat it confidentially, (c) keep the same in good operating condition, (d) use such items exclusively in connection with the performance of Seller’s obligations under this Purchase Order and (e) return such items to Buyer upon completion or earlier termination of this Purchase Order.
19. Setoff Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer or its affiliates against any amount payable by Buyer or its affiliates to Seller.
20. Insurance Buyer does not provide theft, fire, or any type of insurance on Seller’s property or equipment. Seller acknowledges that it is Seller’s sole responsibility to insure Seller’s property or equipment.