The purchase order, together with these terms and conditions constitute the sole terms and conditions of an offer from ADS Biotec Inc. or ADS Biotec Limited (collectively ADS Biotec) to buy from the supplier (“SELLER”) as identified in the Purchase Order, the Item(s) or Services described on the front of the purchase order. Any response by SELLER to ADS Biotec which varies in any way any from the terms and conditions set forth herein shall constitute a mere counteroffer by SELLER to ADS Biotec and shall not be binding on ADS Biotec unless specifically agreed to, and accepted in writing by, an authorized representative of ADS Biotec. In accepting the order described on the purchase order and/or delivering the Items on the purchase order, SELLER covenants and agrees with ADS Biotec that, unless otherwise agreed in writing by representatives authorized by each of ADS Biotec and SELLER, the following terms and conditions shall apply.
1. Acceptance: Formation of Agreement – SELLER’s shipment of Items or the receipt by ADS Biotec of SELLER’s invoice or any other acknowledgment of this purchase order shall constitute an acceptance of this purchase order in its entirety by the SELLER. This purchase order shall constitute the entire agreement between ADS Biotec and SELLER and shall supersede all previous correspondence, bids, offers, and acceptance between ADS Biotec and SELLER with respect to the purchase contemplated hereby.
2. Firm price: Unless otherwise specified on the purchase order, all prices shown on this order are considered firm for items, or as “not to exceed” for services to be rendered, and the prices are not to be subject to modification.
3. Shipment: Unless otherwise specified on the purchase order, all costs of delivery to ADS Biotec of the Items ordered hereby, including packaging, labeling and boxing, shall be prepaid by SELLER. All risk of loss shall be suffered by the SELLER until Items are delivered F.O.B. destination ADS Biotec’s ship to address as specified on the purchase order and SELLER shall promptly reimburse ADS Biotec for any losses incurred by ADS Biotec as a result thereof upon submission by ADS Biotec to SELLER of a bill with reasonable supporting documentation.
4. Billing: Mail the original invoice and Bill of Lading to the attention of “Accounting Department” at ADS Biotec at the BILL TO address specified on the purchase order. The purchase order number and Items billed must be clearly identified on each invoice. If freight is not included in the order price, it must be billed separately with receipted copies of freight bills attached. Cash discount period will commence on the day of receipt of invoice that meets the billing requirements of this order. Terms shall be thirty (30) days net, unless otherwise specified on the purchase order.
5. Warranties: SELLER expressly warrants that a) all Items furnished to ADS Biotec hereunder will be fit and safe for the purpose for which manufactured and for any particular purpose recommended to ADS Biotec by SELLER, will be free from defects in material and workmanship, will conform to applicable specifications, drawings, samples and descriptions and, if of SELLER’s design, will be free of design defects. SELLER also warrants that they will not change or alter any portion of any Item or subcomponent thereof that is purchased by ADS Biotec that is governed by a controlled specification and/or by a specified Bill of Materials without express written notification to ADS Biotec; b) all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures, further, the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Services planned scope of work. These warranties are in addition to any other express or implied warranties of SELLER with respect to the Items, or Services, and shall survive acceptance by ADS Biotec of items and any payment by ADS Biotec with respect to Items, or Services. Neither SELLER’s shipment of any Items ordered hereby nor payment by ADS Biotec of any invoice from SELLER to ADS Biotec therefore shall constitute ADS Biotec’s acceptance of Items ordered hereby or waiver of SELLER’s warranties hereunder. If in ADS Biotec’s reasonable opinion any Item delivered by SELLER hereunder is found to be non-conforming to the applicable requirements, unfit for its intended use, or for any particular purpose recommended to ADS Biotec by SELLER, or otherwise defective; then, if not specified otherwise within the purchase terms, at any time within ninety (90) days from the date when such Items are received by ADS Biotec, SELLER shall at the SELLER’s cost, including, without limitation reasonable field and shutdown costs and any and all packing, shipment, delivery, and installation costs, promptly repair, modify, or replace any Items.
6. No limitation on ADS Biotec’s Damages: Nothing in this purchase order shall be deemed (a) to limit or alter the measure of damages recoverable by ADS Biotec under applicable law, (b) to make any remedy of ADS Biotec exclusive of all other remedies permitted by law, (c) to limit or exclude ADS Biotec’s consequential damages, or (d) to limit ADS Biotec’s remedies to return of Items ordered and repayment to ADS Biotec of the price therefore, or to repair and replacement of nonconforming Items or The rights and remedies of ADS Biotec as set forth herein are in addition to all other rights and remedies of ADS Biotec provided by law.
7. Taxes: Unless otherwise indicated on the purchase order, prices shown on this purchase order do not include taxes of any kind.
8. Intellectual Property: Seller warrants that the Items will not and do not infringe any third party patent, copyright, trademark, or trade. If any claim, action, suit or other proceeding is brought against ADS Biotec based upon copyright, trademark, patent or proprietary rights of a third party under the laws of any governmental authority relating to the Items, ADS Biotec will give timely written notice to such claim, action, suit or other proceeding to SELLER. SELLER will defend any such claim, action, suit or other proceeding on
behalf of and without expense to ADS Biotec, or ADS Biotec may conduct its own defense which shall be at SELLER’s expense and SELLER will indemnify and save ADS Biotec harmless from all losses, costs or damages, including without limitation reasonable fees for attorneys suffered by ADS Biotec as a result of any such claim, action, suit or other proceeding. SELLER will, at SELLER’s expense (a) use SELLER’s best efforts to procure for ADS Biotec or ADS Biotec’s customers the right to continue selling or using any Items or parts thereof that may be affected by such claim of infringement, or (b) replace the allegedly infringing items or parts thereof with non-infringing Items or modify such Items or parts thereof so that they become non-infringing; provided however, that such modification shall not materially alter the characteristics, or affect or increase the cost of use, operation or maintenance of such Items.
9. Cancellation: ADS Biotec reserves the right to cancel this purchase order by written notice. At the time of such termination, SELLER shall discontinue all work, place no additional orders, and cancel existing orders on the best possible terms. Any cancellation payment, if any, shall be mutually agreed to by ADS Biotec and SELLER based on that proportion of SELLER’s work satisfactorily completed at the time of termination.
10. Force Majeure: In the event of labor disputes or strikes beyond SELLER’s reasonable control which delays or prevents delivery of any Items or Services ordered pursuant to the purchase order to ADS Biotec or which in ADS Biotec’s reasonable opinion increases ADS Biotec’s risk or renders goods ordered hereunder wholly or partially unusable for ADS Biotec’s purposes, ADS Biotec shall have the right to cancel all or any part of any unfulfilled portion of this purchase order by notice in writing to SELLER, and upon giving of such notice, ADS Biotec’s obligation under this purchase order shall be limited to payment to SELLER at the price specified herein for Items hereunder that are delivered to and accepted by ADS Biotec at the time of the receipt by SELLER of such Items (or Services).
11. Assignment: SELLER may not assign or transfer any portion of this purchase order without the prior written consent of ADS BIOTEC.
12. Interpretation/Governing Law: This Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of Delaware, without regard to its conflict of laws. If any portion of this purchase order is found to be unenforceable, this purchase order shall be construed without the unenforceable provision.