1. Contracting Parties. Except as is otherwise stated herein, these Purchase Order Terms and Conditions (“Terms”) together with the commercial terms on the face of the purchase order to which these Terms apply (the “PO”) form the agreement governing the provision of the goods and/or services (“Goods and Services”) stated by the PO (collectively, the “Agreement”). The vendor party identified by the PO is the “Seller”, and the purchasing party identified by the PO is the “Buyer”. These Terms are void if Buyer and Seller have entered into a contract governing performance of the PO. Only Buyer, and not its affiliates, is liable hereunder.
2. Inspection and Rejection. Buyer reserves the right to inspect all Goods and Services at any time, but such inspection shall not relieve Seller of liability therefor. Buyer may at its sole discretion reject any or all Goods and Services that fail to comply with the warranties stated in Section 7 or which Buyer reasonably deems to be otherwise deficient. If Buyer rejects any Goods and Services, Seller shall at Buyer’s sole discretion (i) reimburse Buyer for the costs of inspection and the rejected Goods and Services, or (ii) promptly cure the identified defect(s) at Seller’s sole cost. Buyer’s acceptance of Goods and Services, final payment for Goods and Services, or correction of defective Goods and Services shall in no way constitute Buyer’s waiver of any rights under the Agreement or at law or equity.
3. Pricing; Taxes. All prices and dates stated in the Agreement are firm and fixed and are not subject to adjustment. The Agreement price includes all transactional taxes (sales, use, GST, VAT, excise, etc.) and duties imposed by all applicable governmental authorities. Seller shall identify each such tax as a separate line item, if applicable, on each invoice issued in connection with the Agreement. Seller shall be solely liable for all taxes imposed on any of Seller’s property, net income, and/or gross receipts taxes, and for any taxes levied upon wages earned by employees or the number or type of employees of Seller or any of its contractors.
4. Performance. Time is of the essence with respect to Seller’s performance under the Agreement. These terms shall apply upon the earlier of Seller’s acceptance hereof or initiation of performance under the Agreement. Seller shall comply with all applicable laws, rules, and regulations. Except as otherwise expressly stated by the Agreement, if delivery or completion, as applicable, of Goods and Services is not completed by the stated date, Buyer shall be entitled to liquidated damages of one percent (1%) of the total Agreement value per week of such delay (prorated for any partial week), up to a maximum of five percent (5%) of the total Agreement value. Seller shall be in material breach after five weeks’ delay and Buyer shall have a termination right and recourse to all remedies at law or equity.
5. Suspension; Termination. Buyer may at any time, in whole or in part, terminate or suspend the Agreement by written notice or verbal notice confirmed in writing. Upon receipt of such notice, Seller shall promptly comply and take all reasonable actions to preserve and protect all Goods and Services, whether completed or in progress, including materials and drawings. Seller shall promptly and efficiently resume performance upon written notice from Buyer that the suspension has been lifted. Neither termination nor suspension shall affect Buyer’s obligation to compensate Seller for proper performance prior thereto.
6. Invoicing and Payment. Unless the Agreement states otherwise, Seller shall issue a single invoice upon Buyer’s final acceptance of all Goods and Services thereunder. The invoice must include all necessary supporting documentation. Buyer shall pay undisputed invoices within forty-five (45) days from receipt thereof. Unless Buyer directs otherwise in writing, Seller shall submit invoices to firstname.lastname@example.org in PDF, JPG, DOC, DOCX, XLS, or XLSX format. Invoices and emails must each conspicuously state the PO number applicable thereto. Buyer reserves the right to offset payment against amounts owed by Seller.
7. Title; Delivery. Title to the Goods and Services, shall transfer from Seller to Buyer upon delivery. Delivery shall take place according to the terms stated by the PO. If no delivery terms are stated by the PO, then Seller shall deliver to Buyer DAP Buyer’s stated delivery point (Incoterms 2020). The price stated by the PO shall be inclusive of all packaging, handling, storage, transportation, and other delivery costs.
8. Warranty. Except to the extent that the Agreement contemplates greater warranty protections, Seller represents and warrants that where Goods and Services are physical goods, they are new and unused, fit for Buyer’s intended use, fully conform to all specifications, and for the greater period of eighteen (18) months after delivery and twelve (12) months following installation or beneficial use thereof, such physical goods shall remain free from defects in design, workmanship, and materials. Seller shall at its sole cost, risk, and expense promptly repair or replace, at Buyer’s option, any physical Goods and Services that fail to conform to the foregoing requirements. Except to the extent that the Agreement contemplates greater warranty protections, Seller represents and warrants for Goods and Services that are services to perform such services in a skilled and diligent manner that free from defects and deficiencies and in compliance with all laws, rules, and regulations. Seller shall at Buyer’s option, re-perform at it sole cost, risk, and expense, or refund Buyer for, all such Goods and Services that Buyer determines do not meet the foregoing warranty within twelve (12) months after completion and acceptance thereof.
9. INDEMNITY. With respect to all aspects of seller’s performance under the Agreement on premises owned or leased by Buyer or any of Buyer’s affiliates, customers, agents, or contractual counterparties, (“On-Site Performance”) Seller shall indemnify and hold Buyer and buyer’s affiliates, and its and their respective employees, directors, owners, officers, contractors, and agents harmless from and against any and all losses, claims, suits, judgments, expenses (including reasonable attorneys’ fees, costs of defense, and amounts paid in settlement), and other amounts of any kind (“Claims”) which any or all of them hereafter suffer, incur, pay out, or are otherwise responsible for, regardless of buyer’s negligence (except to the extent prohibited or otherwise limited by applicable law), to the maximum extent permitted by applicable law, with respect to bodily injury (including death) to any person and for damage to any property (including loss of use), in each case caused the acts or omissions of seller, any other person or entity engaged by Seller to perform in connection with this agreement, or seller’s or such person or entity’s employees. Seller’s obligations under this Section 9 shall not apply to the extent of Buyer’s gross negligence or willful misconduct.
10. Insurance. With respect to On-Site Performance, Seller shall at its sole cost and expense carry and maintain the following minimum insurance policies: (a) commercial general liability for bodily injury and property damage with limits of $1 million per occurrence/$2 million aggregate; (b) motor vehicle liability with a combined single limit of $1 million; (c) worker’s compensation according to statutory requirements; (d) employer’s liability with a limit of $1 million per occurrence; and (e) umbrella or excess coverage not less than $2 million. Except as prohibited by applicable law, all policies shall include a waiver of subrogation in favor of Solugen, Inc. and its subsidiaries. Prior to On-Site Performance, Seller must submit certificates of insurance and/or endorsements to Buyer with the following language: “Solugen, Inc. and subsidiaries are included as additional insureds on the general liability policy(s) as their interests may appear solely in regard to work/service provided by the named insured.” Seller’s policies shall be primary and non-contributory. Excess/umbrella policies are to be on a follows form basis.
11. Confidentiality. Seller may receive Buyer’s proprietary and/or confidential information (“Confidential Information”) in connection with this Agreement. With respect to Confidential Information, Seller shall for as long as Buyer maintains it as confidential: (i) hold it in the strictest confidence; (ii) not disclose it to any third party; and (iii) not use it except as is required to perform thereunder. Seller shall promptly return or destroy Confidential Information upon Buyer’s request.
12. Choice of Law. The Agreement and all questions of performance shall be construed and interpreted in accordance with Texas law without regard to its conflict of laws principles. SELLER AGREES TO (I) SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN HARRIS COUNTY, TEXAS; (II) WAIVE ANY OBJECTION TO SUCH VENUE; AND (III) WAIVE ANY RIGHT TO TRIAL BY JURY.
13. Miscellaneous. Seller shall not assign the Agreement or any payments due thereunder without Buyer’s prior written consent. Any attempted assignment without such consent shall be void. Headings are included solely for convenience and do not limit or augment the scope of the applicable Section. The Agreement shall exclusively govern Buyer’s and Seller’s performance notwithstanding any order acknowledgment, confirmation, or other document furnished by Seller that states otherwise (which shall be void). The Agreement is the entire agreement for the applicable Goods and Services and supersedes all prior negotiations and agreements with respect thereto. No change or modification to the Agreement is binding unless stated in a mutually executed written instrument; provided that Buyer may at any time makes changes by written notice to (i) drawings, plans, designs, and specifications, (ii) quantities; (iii) delivery schedule; and/or (iv) delivery time or place. If there is any inconsistency between any terms stated in the Agreement, the more stringent terms shall apply.