1. GOVERNING PROVISIONS.
Each shipment received by “Genacept, LLC” (the “Buyer”) from Seller shall be deemed to be only upon the terms contained in this Purchase Order Terms and Conditions, except as they may be added to, modified, superseded, or otherwise altered in writing by Buyer, notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice or other form of Seller and notwithstanding Buyer's act of accepting or paying for any shipment or any similar act of Buyer. If this Order is sent to Seller in response to a quotation or an offer of Seller submitted to Buyer, the terms of this Purchase Order including these Purchase Order Terms and Conditions (collectively the "Order" or Purchase Order”), shall supersede and control all provisions in the quotation or offer of Seller and all accompanying documentation. Seller's shipment of any of the goods, or the like (the "Products") or performance of any of the services (the "Services") covered by this Purchase Order, or Seller's receipt of any payment made pursuant to this Purchase Order, shall constitute Seller's acceptance of this Purchase Order (including these Purchase Order Terms and Conditions), as fully as if Seller had accepted in writing. In the event of a conflict between the terms in the body of the Purchase Order and these Purchase Order Terms and Conditions, such terms in the body of this Purchase Order shall prevail.
2. COMPLIANCE WITH LAWS.
Seller represents and warrants that the Products and any Services provided hereunder shall conform to, the requirements of all applicable federal, state and local laws, regulations, rules and orders, including those of the Buyer and all fifty (50) states (collectively, the "Laws").
Seller represents and warrants that all Products shall be adequately contained, packaged, marked, labeled and registered in compliance with the Laws and that all Products and Services are in compliance with any applicable safety standards under the Occupational Safety and Health Act of 1970, as amended, and applicable regulations. Seller warrants that every chemical substance and/or mixture, are in compliance with the Toxic Substances Control Act, as amended, and its implementing regulations, in that such chemical substance is on the Inventory of Chemical Substances under the act, or subject to an applicable exemption thereto. If a Product is regulated under the Federal Food, Drug and Cosmetic Act, as amended (the "Act"), Seller warrants that each shipment or other delivery of the Products covered by this Order, are as of the date of shipment or delivery, whichever is later, not adulterated or misbranded within the meaning of the Act and are not articles which may not, under the provisions of Section 405, 505 or 512 of the Act, be Introduced into interstate commerce and are not adulterated or misbranded within the meaning of the food, drug or cosmetic laws of any state or municipality. The foregoing warranty shall be a continuing warranty and shall apply to each shipment. Seller warrants that all color additives covered by this Order were manufactured by Seller and (where color additive regulations require certification) are from batches certified in accordance with the applicable regulations promulgated under this Act. Seller shall defend, indemnify and save harmless Buyer from and against any claims, liabilities, expenses (including attorneys' fees), fines, penalties, damages and/or economic losses arising out of or resulting from the failure of Seller, Products and/or the Services to comply with the requirements of this Paragraph 2.
3. PRICE.
Price accepted by Buyer and mentioned in this Purchase Order shall be final and no deviation there from shall be accepted without Buyer’s specific agreement in writing. The Incoterm mentioned in this Purchase Order is based on the latest edition of Incoterms 2000. Unless it is otherwise expressly agreed to the contrary, the price contemplated hereunder shall be inclusive of delivery charges and all containers and Packing cases and the like shall be deemed to have been supplied, free of charge and Buyer shall be under no obligation to pay for or return the same at any point of time hereafter
4. DELIVERY.
This order shall be executable immediately on receipt hereof by the Seller and shall be deemed to have been received by such Seller within a week from its dispatch by post / courier to the correct address of the Seller. Time shall be of the essence and shall be as per the delivery schedule indicated on the face of this Purchase Order, the date for delivery being the last date by which the Products which are the subject matter of the Purchase Order shall reach Buyer. If for any reason, the Products do not reach Buyer by the said stipulated date on the face of this Purchase Order, Buyer shall be entitled at its option to:
a. Immediately cancel the contract by written/oral notice communicated to the last known address of the Seller and
b. Charge liquidated damages as reasonable compensation for each day’s delay occasioned on account of the inability of the Seller to deliver the Products as per the delivery schedule indicated on the face of this order for as long as it takes Buyer to secure the Products of the appropriate quality and quantity from other sources. In addition to which the Seller shall also be liable to pay the difference between the price at which such Products are secured, if any, and also to compensate Buyer for any other loss or injury suffered by Buyer as the direct consequence of such default, which the parties hereto have mutually agreed to and shall be bound by in respect of the transaction covered hereunder.
c. Buyer shall also, in addition to the above be entitled to pre-pone or postpone delivery of the Products at any time.
d. Buyer shall have the right to purchase the Products from any other source and claim reasonable compensation therefor as has accrued as a direct result/consequence of the breach/inability of the Seller to supply the Products and the loss, if any incurred by/or caused to the Seller as a consequence of such cancellation and consequential purchase of the Products from any other source shall exclusively be borne by the Seller.
e. Buyer shall be under no obligation to accept the deliveries of the Products hereunder even when such failure on the part of the Seller is due to any unforeseen event i.e., by an act of God or of a Public Enemy, fire, earth-quake, floods, strikes, lockouts, labor trouble, transportation embargoes and/or any such other causes whatsoever beyond the reasonable control of Buyer.
5. Original documents to be produced.
Unless otherwise specifically stated elsewhere in contrary, the following documents are required to be submitted: -
a. Air Waybill or Bill of lading
b. Invoice
c. Packing list
d. Test certificate, if applicable
e. Insurance Certificate (covering from Seller warehouse to Buyer warehous), if applicable
f. Certificate of Analysis duly indicating manufacturing and expiry details, if applicable
g. Material Safety Data Sheet, if applicable
6. MATERIAL QUALITY
The Products supplied by Supplier shall be subject to the approval of Buyer in respect of the specifications in the Purchase Order as also in respect of both quality and quantity and the decision of Buyer to accept shall be final and binding on the Supplier. The Buyer shall have a reasonable period to inspect the shipment which shall be no less than thirty (30) days from receipt. The Supplier shall obtain the prior written approval of Buyer in respect of all the samples of all the Products to be supplied to Buyer which the Seller shall obtain in writing before commencement of bulk production of any of the Products which are to be supplied to Buyer by Seller, wherever required. Products shall be supplied preferably from one single batch and shall be accompanied by the relevant analytical report. Method of analysis followed by the Supplier and safety data for the Products shall be forwarded to Buyer.
7. INSPECTIONS AND ACCEPTANCE.
All Products shall be received subject to Buyer's rights of inspection, rejection, and revocation (pursuant to the provisions of Article 2 of the Uniform Commercial Code).Any Buyer's signature on any shipping/receiving or acknowledgment documents shall not constitute acceptance of Products or Services or any different terms or conditions, or acknowledge condition of Products but shall merely acknowledge receipt of a shipment.
Buyer may elect to have in-process inspection of the Products provided hereunder. Seller shall permit free and reasonable access to Seller's facilities to perform such surveillance activities. Except as otherwise specifically provided in this Order, any testing or inspection of Product by Buyer prior to delivery is solely for the benefit of Buyer and Seller may not rely on such. Without limiting any of Buyer's rights provided by law or by this Order, Seller shall, upon request of Buyer and at Seller's expense, immediately replace at Buyer's facility any Products rightfully rejected by Buyer.
Payment for or use of Products prior to inspection shall not constitute acceptance thereof or acceptance of any subsequent shipment, and shall be made without prejudice to any and all claims that Buyer may have against Seller.
8. TAXES AND GOVERNMENTAL CHARGES.
Except as otherwise agreed pursuant to Paragraph 3, this Order shall not include Sales or Use taxes. In no event shall such taxes be added to the Order if Buyer has indicated in this Order that the purchase is exempt from such taxes. Seller agrees to pay any other taxes imposed by federal, state, or local law upon the Products or Services sold to Buyer hereunder unless otherwise agreed, except taxes required by law to be paid or borne by Buyer.Seller shall, upon request of Buyer, inform Buyer whether the Products are imported or manufactured with imported materials and furnish Buyer with all documentation required for duty drawback for product or imported materials contained in the Product purchased by Buyer hereunder. All of these taxes must be disclosed to Buyer prior to the time of the shipment.
9. PATENTS.
Seller represents and warrants that Seller shall be the owner of or have a valid sub-licensable license to all intellectual property associated with all shipments hereunder. Seller further hereby sublicenses any associated intellectual property of any shipment to Buyer for the purposes of using, development, manufacturing, distributing and selling any portion of all shipments. Seller agrees to defend, indemnity and hold harmless Buyer, its successors, customers and users, from and against all liability, economic loss, damage, and expense (including attorneys' fees) associated with any actual or alleged infringement of any intellectual property right, or any litigation based thereon, with respect to the Products or Services (or any part thereof) covered by this Order, and any such obligation shall survive acceptance of such Products or Services and payment therefore by Buyer.
10. INDEMNIFICATION.
Seller shall assume the sole responsibility for any and all actual or alleged damage, breach or injury (including death) to any and all persons (including, but not limited to employees of Seller or Buyer), third parties, and anyone filing a claim against Buyer, and to all property associated with the performance of its obligations under this Order or any negligent or wrongful act or omission of Seller, and shall defend, indemnify and save harmless Buyer (and all of Buyer’s agents) from and against any and all claims, liabilities, expenses (including attorneys' fees), fines, penalties, damages and/or economic losses of whatsoever nature associated therewith except for such claims, liabilities, etc., caused by the sole negligence of Buyer. Seller hereby releases and waives all rights of subrogation against Buyer possessed by Seller's insurers.
11. WARRANTY.
Seller represents and warrants that the Products are new, merchantable, safe, fit for intended use, free from defects in workmanship, design, materials, and title, and conform to any specifications, drawings, samples, or other descriptions referenced herein or applicable thereto.Seller further warrants that all Services shall be performed utilizing at least the degree of care and skill exercised by diligent and prudent members of the same profession performing similar services on a national basis, free from defects in workmanship, presentation, appearance, packaging and materials and are in conformance with ail specifications, plans, or drawings referenced herein or applicable thereto. Seller shall at all times comply with Buyer's rules, policies and guidelines relating, in whole or in part, to the Services while performing Services at Buyer's site, including without limitation those related to ecology, health and safety. Products or Services found to be nonconforming or defective in material or workmanship within eighteen (18) months from the date of receipt (or performance) or twelve (12) months from the date of putting same into service, whichever date occurs first, shall, at Buyer's option, be corrected or repaired in place by Seller, or be replaced at Buyer's facilities by Seller, or be returned to Seller at Seller's expense (including transportation and handling costs) for repair, replacement or full refund. Repair or replacement shall be initiated immediately and shall be pursued diligently and continuously, utilizing Seller's best efforts in order to minimize the impact on Buyer's operations.
All warranties shall survive any inspection, delivery, payment, use or acceptance of Products or Services, to the maximum amount permitted by applicable law. Seller agrees that all warranties and indemnities applicable to Products provided hereunder shall automatically inure to the benefit of, and be directly enforceable by a third party purchasing or receiving such Products from Buyer. Any costs, expanses or damages incurred by Buyer associated with a breach of these warranties shall be borne by Seller and may be offset against any monies owing to Seller hereunder or otherwise.
12. LIEN WAIVERS.
Seller represents and warrants that all shipments sent to Buyer shall be free of all liens, third party encumbrances and obligations. Seller shall, at its sole cost and expense, obtain from all its subcontractors and materialmen waivers and releases of all liens which may be imposed by them against the premises of Buyer or the improvements thereon, associated with any Products or Services performed hereunder, and Seller shall defend, indemnify and hold harmless Buyer with respect thereto.
13. CANCELLATION.
Time is of the essence of this Order. In addition to all its other legal remedies. Buyer reserves the right to cancel all or any part of the undelivered or unperformed portion of this Order if Seller does not make deliveries or perform as specified, or if Seller breaches any of the terms hereof, or indicates of its intention to breach or failure to perform. In the event of such cancellation, Seller shall be liable to Buyer for any excess cost or re-procurement cost as well as Incidental, economic and consequential damages or losses sustained as a result thereof. Buyer may inquire on the status of any order or shipment from time-to-time and if the Seller does not timely respond or indicates any reason to give doubt to Seller’s ability to perform hereunder, Buyer shall have the right but not the obligation to terminate the order and seek its right to cover the products at prevailing market prices, which difference Seller shall be liable for to Buyer.
14. ASSIGNMENT.
This Order or any right or obligation associated therewith may not be assigned or transferred by Seller in the absence of Buyer's prior written consent thereto and any purported assignment or transfer absent such consent shall be void.
15. CONFIDENTIALITY.
Seller agrees not to make any use of writings, data, designs, drawings, specifications or any other information furnished to it by Buyer or observed or developed by Seller associated with this Order and to not disclose any of the foregoing to third parties, except as required in the performance of this Order and then only after first obtaining a written agreement from such third parties to be bound by similar secrecy and use restrictions. Upon completion, cancellation or termination of this Order, Seller shall return to Buyer all of the foregoing, including all copies, extracts or derivatives of tangible materials containing any such information made by Seller or third parties employed by Seller. Buyer shall at all times have title to all drawings, specifications, writings or other documents prepared or furnished by Seller hereunder. All Products produced for Buyer hereunder which are subject to or may be copyrighted under the Federal Copyright Act shall be deemed to be "works made for hire" and title to and ownership of such Products shall at all limes be in Buyer.
16. MATERIAL SAFETY DATA SHEETS.
Seller shall furnish Buyer, prior to the first delivery, Seller's current Material Safety Data Sheet and other literature pertaining to the hazards associated with the Products and the precautions which should be observed with respect thereto. Seller shall promptly furnish Buyer copies of any revisions to any of the same Issued by Seller during the term of this Order.
17. WAIVER.
The failure of Buyer to insist in any instance upon strict performance by Seller of any provision of this Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Order.
18. APPLICABLE LAW.
This Order shall be governed by and construed in accordance with the laws applicable to Buyer's location set forth on this Order without reference to its conflicts of law principles. If no such law is stipulated, the parties agree to be bound by the laws of New Jersey.
19. SUBSTANCE ABUSE.
Seller certifies at all times while Seller's employees are on Buyer's premises, Seller shall be in compliance with the Drug Free Workplace Act of 1988, as it may be amended, (which shall be deemed to apply to all Services performed hereunder) and any governmental laws or regulations regarding substance abuse. Seller will take all action: (i) necessary to comply with such requirements, and (ii) which Buyer reasonably deems necessary to prevent substance abuse or their influence on Seller's employees while on Buyer's premises.
20. NON-COLLUSION.
Seller warrants that Seller has not and will not, directly or indirectly, enter into any agreement, participate in price collusion or otherwise take any action in restraint of free or competitive bidding, including, but not limited to, any offer or promise of future employment or business opportunity by or for any contractor or subcontractor, or any personnel of Buyer or its contractors or subcontractors associated with this transaction.