Purchase order terms and conditions without commercial agreement
Scope of application
1.General
1.1 - This purchase order is an offer by InvivoGen SAS or an affiliated company of InvivoGen SAS (“Buyer”) for the purchase of the goods and/or services specified on the face of this purchase order from the party to whom the purchase order is addressed (“Supplier”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Purchase Order” or “Order”). Buyer and Supplier shall be collectively referred to as “Parties”.
1.2 - The Terms prevail over any terms and conditions contained in any other documentation (unless other terms are accepted in writing by Buyer) and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with this Order. No oral agreement or other understanding shall in any way modify this Order, or the Terms hereof. This Order, together with any documents incorporated by reference and/or attached to the Order constitute the sole and entire agreement of the Parties with respect to Buyer’s Order. Where this Purchase Order relates to goods and/or services which are the subject of a contract between the Parties, the terms of that contract shall apply to the extent of any inconsistency with these Purchase Order Terms. Terms apply except if there is a commercial agreement.
1.3 - In this Purchase Order, unless the context requires otherwise: (a) the words "including" and "include" mean "including, but not limited to"; (b) the singular includes the plural and vice versa; (c) a reference to a person or entity (including Supplier or Buyer) includes a reference to the person's executors, administrators, successors, substitutes and assigns; and (d) headings are for reference only and do not form part of this contract.
2.Changes:
Buyer reserves the rights to make changes to this Purchase Order by written notice to Supplier. Such changes include but are not limited to changes in specifications, designs, drawing, method of packing or shipment, quantity ordered, destinations and delivery schedules. If any such changes affect the performance of this Purchase Order, the compensation due or time required for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. The Purchase Order shall be modified in writing accordingly upon agreement by the Parties. Supplier shall not make any changes to this Purchas Order without Buyer’s prior written acceptance.
Conclusion of a Contract and Delivery
3. Acceptance
3.1 - Supplier's action in either (a) accepting this Order in writing, (b) delivering any or all goods and/or materials described in this Order, or (c) performing the services described in this Order, will constitute Supplier' s acceptance of the Terms. Acceptance is to be by conduct specified above no later than five (5) calendar days following receipt of the Order. If Supplier fails to share such an acceptance after five (5) calendar days upon receipt of the Order, the corresponding Order will be deemed accepted. Acceptance of this Purchase Order is expressly limited to the Terms of this Order. Buyer may withdraw this Purchase Order at any time before Acceptance.
4. - Delivery
4.1 - Supplier shall ensure that the goods are suitably packed to avoid damage in transit or in storage and in such a way to comply with Buyer’ specifications and any applicable laws. Damage to any article resulting from improper packing will be charged to Supplier. Packages must be marked, or a packing slip provided with the Purchase Order number, item number or cat. code, Delivery Location, contents, quantity, date and method of dispatch and weight of each package. Supplier shall ensure that services are provided in accordance with Buyer’ specifications and any applicable laws.
4.2 - Performance Date: Supplier shall deliver the goods in the ordered quantities and quality or perform the service at the Delivery Location, each on the date(s) specified in this Order or as otherwise agreed in writing by the parties (“the Performance Date”). Timely delivery of goods and/or services is of the essence. Buyer reserves the right to cancel this Order and reject the goods or the performance of services if delivery is not made in accordance with the Performance Date stated in this Order, Buyer reserves the right to return over-shipments or shipments made in advance of the scheduled deliveries at Supplier's expense. Supplier shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Supplier’s failure to deliver the goods and/or perform the services on the Performance Date.
4.3 - In case of delayed delivery, except for Force Majeure, the Supplier shall pay to Buyer for every calendar week of delay a penalty amounting to one per cent (1%) of the total value of the Agreement without exceed ten percent (10%). Any fractional part of a week is to be considered as a full calendar week. 4.4 - Delivery Location: All goods shall be delivered and/or all Services shall be provided to the address specified in this Order (the “Delivery Location”).
5. - Documentation:
Supplier shall provide Buyer, upon Buyer’s request and in a timely manner, with all reasonably requested technical documentation including the Certificate of Analysis for each invoiced batch of the Product, all technical rules, safety instructions and packing list for each delivery.
6. - Services and/or Good Acceptance:
6.1 - All goods delivered under this Purchase Order and/or services performed by Supplier shall not be defective and shall be of merchantable quality. All goods and/or services will only be considered as accepted after Buyer has carried out both a material and technical verification and inspection. Any inspection of Buyer’s premises performed by an administration, or any other organization shall in no event constitute an exemption to this mandatory provision. Unless express written acceptance is given by Buyer, the Product shall not be deemed to be accepted.
6.2 - Supplier shall not be relieved of its obligations to replace any defective goods or work by reason of any failure on the part of Buyer to bring any defect to Supplier's attention. Buyer's Services and/or Good Acceptance will not relieve Supplier from its obligations relating to warranties, latent defects, fraud, or such gross mistakes as amount to fraud. If Buyer, after verification and inspection, identifies any parts (i) that do not conform to the Order specifications, (ii) that had any defects, or (iii) that were damaged when received, Buyer is entitled to charge any cost associated with the return of these parts to the Supplier. Supplier will, at Buyer’s option and Supplier’s expense, refund the purchase price for, or correct or replace the affected Goods, or re-perform the affected Services within a reasonable period. In no event will acceptance be deemed to have occurred before Supplier completes Delivery. Buyer's use of or payment (in part or whole) for goods and/or services during the acceptance period will not constitute Services and/or Good Acceptance.
Financial Conditions and Payments
7. - Price:
7.1 - Unless prior written agreement of the Parties, Price shall be stated on the Order. Prices include tax and are firm and final. They cannot be revised without mutual consent from the Parties.
7.2 - The Price is inclusive of: (a) all charges for packaging, packing, insurance and delivery of the Goods in accordance with this Purchase Order; (b) the cost of any miscellaneous services of a kind which are commonly provided with the Goods and any miscellaneous items of a kind which are commonly used or supplied in the performance of (and in conjunction with) the Services unless otherwise agreed by the Parties.
8. - Invoices:
8.1 - Any invoice must include the following details: (a) a reference to this Purchase Order and the relevant contract (if any) including the line item numbers on this Purchase Order and the contract number; (b) a detailed description of the delivered Goods and/or Services performed, including the Performance Date and the relevant quantity of the Goods and/or Services; (c) the applicable taxes including Value Added Tax (VAT) (d) an individual reference number for Buyer to quote with remittance of payment; and (e) Buyer site and Buyer contact name.
A separate invoice shall be drawn up for each purchase order and each delivery.
8.2 - If Buyer requests, the Supplier must provide Buyer with all relevant records to calculate and verify the amount set out in any invoice.
9. - Payment:
9.1 - All payments are made wire transfer. Unless otherwise provided in this Purchase Order, payment terms are sixty (60) days from the issuing date of a valid invoice from Supplier.
9.2 - Supplier shall be entitled to interest for late payment equal to three (3) times the legal interest rate plus forty (40) euros corresponding to recovery costs.
9.3 - Payment of invoice shall not constitute acceptance of goods or services and the invoice shall be subject to adjustment for errors, shortages, defects in goods or services or other failure of Supplier to meet the requirements of this Order. Buyer may reduce any payment due to Supplier under this Purchase Order by any amount which Supplier must pay Buyer, including (without being limited to) costs, charges, damages and expenses and any debts owed by Supplier to Buyer on any account whatsoever. This does not limit Buyer’s right to recover those amounts in other ways.
Standards and Quality
10. - Quality of the goods and Services:
10.1 - The Supplier must ensure that: (a) the Goods and Services supplied by Supplier match the description of the Goods and Services in this Purchase Order; (b) if the Supplier gave Buyer a sample of the Goods before Buyer issues this Purchase Order, the Goods must correspond with the sample; (c) if Supplier provided Buyer with a demonstration of the Services before Buyer issued this Purchase Order, the Services correspond in nature and quality with the Services demonstrated; (d) if Supplier showed Buyer a result achieved by the Services before Buyer issued this Purchase Order, the Services correspond in nature and quality with the services that achieved that result; (e) the Services are performed with the professional skills, care and diligence expected of a skilled and experienced professional supplier; (f) the Goods and Services are fit for the purposes set out in, or which an experienced professional supplier would reasonable infer from, this Purchase Order; (g) the Goods are of merchantable quality; (h) to the extent that the Services are design services, the works being designed will be fit for their intended purpose as described in this Purchase Order; (i) any items which the Supplier uses or supplies in conjunction with the Services are of merchantable quality and comply with any standards specified in this Purchase Order and are fit for their usual purpose and any purpose described in this Purchase Order; and (j) Buyer has the full benefit of any manufacturer’s warranties that may be applicable to the Goods and/or Services (and the Supplier must pursue any manufacturer’s warranties on Buyer’s behalf if Buyer so requests).
10.2 - Major changes in the manufacturing process, performance process, and/or changes that could have potential impact on the performance of the Good and/or the provision of Services (including without being limited to the source of the materials, formulation, testing procedures, specifications, packaging, and/or documents required by health authorities and so on) shall be immediately communicated in writing to Buyer. Supplier must inform Buyer of any impact to the quality of Goods and/or Services. Supplier shall be responsible if Goods are transferred to third parties or if services are subcontracted to third parties.
Risk – Warranty - Liability
11. - Title and Risk:
Unless otherwise stated in the Order, the risk of loss and damage to Goods shall be borne by Buyer when the Goods are fully delivered and accepted by Buyer at Performance Location. Unless otherwise stated in the Purchase Order, the risk of loss and damage related to Services shall be borne by Buyer when Services have been completed. Buyer will have title to the Goods and/or Services when Buyer pays for those Goods and/or Services.
12. - Warranty:
In addition to all other implied or express warranties or conditions, the Supplier represents, warrants and covenants that:
(a) it has full capacity and authority and all necessary consents to enter into and perform its obligations under the Purchase Order and that the Purchase Order is executed by a duly authorized representative of the Supplier;
(b) All Goods and/or Services will be guaranteed to against any malfunction and manufacturing defect for a period of one (1) year minimum as from its delivery. During this period, the Supplier, (i) at its own expense, undertakes to immediately fix or replace any parts or all of the defective Good and/or reperform any Service which fails to conform to Buyer’s specifications, the other requirement of this Purchase Order or the foregoing warranties; or (ii) shall, upon Buyer’s request, refund any amounts paid for such Goods and/or Services. Supplier shall support any costs related to the replacement or repairs of the defective Goods and/or Services, the labor and transportation costs associated with any replacement or repairs.
(c) the Goods and/or Services shall be manufactured, delivered or performed in compliance with all applicable laws, statutes, rules, regulations, orders, ordinances, guidance, decisions of a court, government or governmental agency;
(d) the Goods and/or Services shall be free and clear of all liens, encumbrances or security interests which would conflict with the conveyance of absolute title to the Buyer and;
(g) the Goods and/or Services shall not infringe any intellectual property rights of any third party. Therefore, the Supplier warranties the Buyer against all claims and legal actions committed on this account by a third party.
13. - Subcontracting:
Without Buyer’s prior written approval, not to be unreasonably withheld, Supplier undertakes not to subcontract or otherwise delegate all or any portion of its obligations under this Agreement. In the event of subcontracting, Supplier shall remain fully and exclusively responsible for the complete and perfect execution of the Purchase Order subject to the applicable regulations.
14. - Liability:
The Supplier shall defend, indemnify and hold the Buyer, each of its directors, shareholders, officers, employees, licensors, suppliers and agents, customers (“Indemnitees”) harmless against any losses, damages, liability, injury, claims, demands, lawsuits, actions, proceedings, judgments and expenses, including reasonable legal fees and costs that an Indemnitee may incur due to: (a) Supplier’s breach of this Purchase Order; (b) the Supplier’s breach of any Applicable Law; (c) any actual or alleged defect in the Goods or Services; (d) any failure to comply with any express or implied warranty as provided herein or otherwise provided by law; (e) the work performed by Supplier or Supplier’s agents or subcontractors, including any claims that arise due to: (i) injury to or death of any person; (ii) loss of or damage to property; or (iii) damage to the environment. This indemnity applies even in the event of concurrent negligence by Buyer but does not apply where the sole cause of the liability, loss or expense is the willful misconduct or negligence of Buyer. The provisions of this Section shall survive the delivery and acceptance of the payment for the Goods or completion and acceptance of and payment for Services hereunder, as the case may be.
15. - Limitation of liability:
IN NO EVENT WILL BUYER OR EACH OF ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS AND AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, OR ANY LOST PROFITS OR REVENUES.
16. - Intellectual Property:
16.1 - During the term of this Purchase Order, Buyer may provide to Supplier certain proprietary information and materials, including without being limited to biological or chemical materials, and copyrights, patents, trademarks, trade names, logos, trade secrets and any and all other intellectual property (collectively, “Buyer Materials”) for Supplier’s use in providing Goods and/or Services hereunder. Such Buyer shall retain all right, title and interest (including without limitation all intellectual property rights) in and to such Buyer Materials. No rights are being conferred to Supplier hereunder to any Buyer Materials. Supplier shall return Buyer Materials to Buyer upon the termination of this Order or upon Buyer’s request, whichever occurs first. Supplier agrees: (i) to treat and maintain Buyer Materials in confidence in line with the confidentiality obligations hereunder; (ii) to reasonably safeguard Buyer Materials from damage and loss; (iii) not to transfer such Buyer Materials to others; and (iv) to use Buyer Materials solely in performance of Supplier’s obligations under this Purchase Order.
16.2 - Any results, inventions (whether or not patentable), documents, information, data, intellectual property, concepts or innovations arising from Supplier’s provision of the Services hereunder shall be owned exclusively by Buyer; provided, that any inventions made solely by employees of Supplier pursuant to the performance of the Services that are not useful with respect to the Service shall be the exclusive property of Supplier. Supplier hereby irrevocably assigns and agrees to assign, and shall require anyone working for Supplier to assign, all rights including but not limited to all intellectual property rights in such Service to Buyer.
16.3 - Supplier grants the Buyer a non-exclusive, royalty-free, revocable, non-transferable license to enjoy quiet possession and use the Good and/or Service concerned and Supplier’s Background intellectual property.
Confidentiality and Ethics
17. - Confidentiality:
17.1 - “Confidential Information” means any information, Buyer Materials, inventions (i) disclosed by whatever means by or on behalf of Buyer to Supplier, (ii) about Buyer or its Affiliates and obtained by Supplier from a third party under an obligation not to disclose such information, (iii) created by Supplier for Buyer or its Affiliates, or (iv) observed by Supplier in connection with this Order.
17.2 - Supplier shall take precautions to secure and protect Buyer Confidential Information from unauthorized use, disclosure or reverse-engineering. Supplier agrees not to use Buyer Confidential Information for any purpose, except Supplier may use Buyer Confidential Information as necessary to perform the Services. These obligations under this Section shall remain in force for the duration of the Order and for a ten (10) year period following its expiration or termination. Upon any termination or expiration of this Order, or if earlier requested by Buyer, Supplier shall either return to Buyer or destroy all copies of Buyer Confidential Information in Supplier’s possession or control and, upon request of Buyer, confirm the destruction of such information in writing.
18. - Anti-corruption
18.1 - Supplier and Buyer are committed to eliminating bribery and corruption from their supply chains. The Parties shall not be under any obligation to carry out any action or make any omission under this Order to the extent that the relevant Party reasonably believes that it would be in breach of any anti-corruption legislation. Neither Party has breached any anti-corruption legislation in order for the Party to enter into this contract. The Parties undertake to ensure that the Parties and their respective owners, directors, officers, employees, sub-contractors and agents will act in full compliance with any applicable anti-corruption laws and regulations, industry and professional codes of and will not at any time offer, promise, give, pay or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier (whether a public official or otherwise) with the intention of influencing them and obtaining or retaining an improper advantage.
18.2 - Breach of any of the undertakings in this clause shall be deemed to be a material breach of the present contract.
Disputes
19. - Compliance with law:
This Order shall be governed by and interpreted in accordance with the laws of France applicable therein, without regard to its conflicts of law provisions.
20. - Jurisdiction:
The Parties irrevocably attorn to the jurisdiction of the courts of Toulouse in France, which will have exclusive jurisdiction over any matter arising out of this Order.
21. - Personal Data:
21.1 - For purposes of this Purchase Order, Personal Data means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, but excludes any publicly available business contact information of either Party (as such terms are defined in applicable data protection and privacy laws).
21.2 - Parties shall only use the provided information to process this Order, communicate with the other Party and to comply with applicable regulatory requirements. Personal Data shall not be used or otherwise processed for any other purposes or disclosed to any third parties. Personal data will be retained for as long as the contractual rights and obligations arising from this Order and applicable regulatory rights and obligations may be asserted by or against Buyer.
21.3 - Supplier may ask to view, modify or delete information concerning you by emailing us at webmaster2@invivogen.com or at info.eu@invivogen.com.
21.4 - If a Party becomes in possession of data belonging to the other Party, the former agrees to notify latter without undue delay of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, data transmitted to, stored or otherwise processed by a Party.
Miscellaneous
22. - Insurance:
The Supplier shall secure and maintain appropriate insurance coverage for its legal or contractual liability for any bodily injury, any material damage, and financial losses (consequential or non-consequential) arising during or after the performance of the Order, for a sufficient amount in view of the liability that may be incurred. This insurance policy must be valid in France and abroad. Upon request, Supplier shall provide the Buyer with a certificate of insurance evidencing such insurance coverage. In the event Supplier becomes in default of the abovementioned requirements, Buyer reserves the right to take whatever actions it deems necessary to protect its interests.
23. - Waiver:
Failure of either Party to exercise or enforce any right under these general terms and condition upon one or more occasions shall not constitute a waiver of the right to exercise or enforce the same or any other right on another occasion.
24. - Force Majeure:
24.1 - Neither Party shall be considered to be in default or breach of this Purchase Order and shall be excused from performance or liability for damages to the other Party if and to the extent such failure results from an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of conclusion of the Purchase Order and the effects of which cannot be avoided by appropriate measures, prevents performance of the obligation by the debtor. If the impediment is temporary and performance of the obligation is suspended, such an event shall not be considered a force majeure event. For clarity, in case of temporary impediment, the defaulting party shall be in default or breach of this Purchase Order. The Party asserting the force majeure shall perform the obligations which have not been directly affected by the force majeure event hereto alleged.
24.2 - If a force majeure event occurs, the Party unable to perform shall promptly notify the other Party of the occurrence of such event, and the Parties shall meet (in person or telephonically) promptly thereafter to discuss the circumstances relating thereto. The Party unable to perform shall (i) provide reasonable status updates to the other Party from time to time, (ii) use commercially reasonable efforts to mitigate any adverse consequences arising out of its failure to perform and (iii) resume performance as promptly as possible.
24.3 - However, in the event of suspension of the obligations for more than one (1) month, the Parties shall meet each other to discuss the furtherance of the Purchase Order. In such the case Buyer is the creditor of the obligations at stake, Buyer may request the termination of the latter by registered letter with acknowledgement of receipt.
25. - Severability:
If any provision of this Purchase Order is held to be illegal, invalid, or unenforceable under any applicable present or future laws or rules and regulations effective during the term hereof, such provision shall be fully severable, and this Purchase Order shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from.
Term and Termination
26. - Term:
This Order shall become effective upon Acceptance of the Purchase Order by Supplier and shall remain in full force and effect until completion of Supplier’s obligations, or if not, up to the end of the defect warranty period (the “Term”), unless earlier terminated in accordance with the terms herein.
27. - Termination:
27.1 - Buyer shall be entitled to cancel all or any part of the Purchase Order, without liability to Supplier, if Supplier:
(a) repudiates or breaches any of the terms of this Order;
(b) fails to perform Services or deliver Goods as specified by Buyer;
(c) intentionally suppress the facts or misrepresented its technical capabilities; due to which, the Purchase Order could not be completed in due course;
(d) fails to make progress, so as to endanger timely and proper manner completion of Services or delivery of Goods; and does not correct such failure or breach at the earliest after receipt of written notice from Buyer specifying such failure or breach.
27.2 - In addition, Buyer may cancel the Purchase Order upon giving notice to Supplier, without liability to Supplier, if Supplier:
(a) sells, or offers to sell, a material portion of its assets,
(b) is subject to a direct change of ownership of its shares resulting in 50% or more of the issued share capital of the company becoming legally or beneficially the property of a new owner, or
(c) Is subject to insolvency procedure, a voluntary petition in bankruptcy, an involuntary petition in bankruptcy against Supplier; is given a receiver or trustee.
27.3 - Provided that Supplier is not in breach (including without limitation force majeure events), Supplier shall be entitled to receive payment for all Goods and Services satisfactorily performed and delivered prior to the date of the notice of termination under this Section, plus reimbursement for any reasonable direct cancellation costs necessarily incurred by Supplier to stop work. However, Buyer's liability hereunder shall not exceed the purchase price for the Goods and/or Services delivered prior to the date of notice of termination under this Section.
27.4 - Termination claims shall be subject to review and audit by Buyer, and Supplier shall promptly perform all Services or ship all Goods paid for by Buyer under this Section prior to payment by Buyer.