1. Acceptance – Agreement; Entire Agreement.
If, for any reason, Seller should fail to accept the purchase order in writing, any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter herein shall constitute acceptance by Seller of the purchase order and all of its terms and conditions. Any proposed terms in Seller’s acceptance of Buyer’s offer which add to, vary from, or conflict with these terms are hereby objected to. Any proposed terms shall be void and these terms shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. If the purchase order has been issued by Buyer in response to an offer, and if any of these terms are additional to or different from any terms of such offer, then the issuance of the purchase order by Buyer shall constitute an acceptance of such offer, subject to the express conditions that the Seller assent to such additional and different terms herein and acknowledge that the purchase order constitutes the entire agreement between Buyer and Seller. Seller shall be deemed to have so assented and acknowledged unless Seller notifies Buyer to the contrary in writing within ten (10) calendar days of receipt of the purchase order.
2. Delivery; Seller’s Inspection and Expedited Shipment.
Time is of the essence and therefore, Seller shall deliver the goods and/or services strictly in accordance with the dates and requirements set forth or referenced on the purchase order and other terms and conditions set forth herein, including but not limited to the shipping, labeling, packaging requirements and statement of work. Delivery of goods must include a packing slip, commercial invoice (if applicable) and any other requested documentation. Markings. Show our order number on all packages. On shipments of raw materials each container must also be plainly identified by:
• Our Title
• Manufacturers’ Control Number
• Net Weight Packing Slips.
Enclose packing slip itemizing contents with each shipment. On shipments of raw materials also show number of containers in each lot. Invoices. Must show our order number, net weights and cash and transportation terms. Invoices improperly rendered may be returned for correction without loss of discount. Cash discount will be computed from date of invoice. Bills of Lading. Show our order number, net weights and number of containers. If raw materials, also show number of containers in each lot. If transportation is F.O.B. origin and transportation charges are for our account, ship at value which will produce lowest transportation cost. Inspection by Seller. Prior to delivery, Seller shall inspect and/or test goods for compliance with the specifications and the purchase order. Quantity variances are not permissible between the original order quantity and the actual quantity received. Variances require approval from an authorized Buyer. If an over shipment is received without prior approval, purchaser has the right to reject the quantity in excess of the original order quantity. Expedited Shipments. If it becomes necessary, in order to comply with Buyer’s required delivery of goods to ship by a more expensive method than specified in the purchase order, any increased transportation costs that result shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused solely by Buyer.
3. Price, Payment and Acceptance; Buyer’s Inspection and Acceptance.
Price for the goods and services and payment terms are specified on the purchase order. If the currency is not specified, both parties agree that the appropriate currency shall be the national currency for the office issuing the purchase order. Price for goods and services shall include any and all taxes, tariffs or similar charges that may be imposed given the nature of the goods and services. Seller shall box, crate or package as necessary for shipment without charge unless otherwise specified on this order. Buyer shall have no obligation for payment until Buyer’s receipt of the goods and services and any required documentation (including shipping documentation and an accurate and complete invoice in English). Payment for the goods and services delivered hereunder shall not constitute acceptance of such goods and services. Inspection by Buyer. Buyer shall have the right (but not the obligation) to inspect such goods and/or services and to reject any or all of said goods and/or services which are, in Buyer’s judgment, defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for in the purchase order may be returned to Seller at Seller’s expense and, in addition to Buyer’s other rights, Buyer may charge Seller all expenses related to unpacking, examining, repacking and reshipping such goods. Buyer shall be entitled to preserve and keep a sample of any rejected good. In the event Buyer rejects goods or services or receives goods or services whose defects or nonconformity is not apparent upon examination, Buyer reserves the right to require replacement goods or services as well as payment for any and all damages, including but not limited to the cost of a recall.
Seller may request changes to the goods or services or changes to the purchase order. All changes requested by Seller must be approved in writing by Buyer. Buyer shall have the right, at any time, to make changes to the goods or services set forth in the purchase order. If any such changes cause an increase or decrease in the purchase price or the time required for the performance of the purchase order, an equitable adjustment shall be made and the purchase order shall be amended in writing by the parties.
5. General Warranty.
Seller expressly warrants that the goods and/or services furnished pursuant to the purchase order shall: a) conform to any specifications and statement(s) of work, as applicable; b) conform to the terms and conditions of the purchase order (including any referenced or attached documents); c) conform to applicable laws; d) conform to appropriate industry standards; e) be new and free from defects in design, material and workmanship; f) be free of liens and encumbrances; g) be fit for their intended purpose and use; h) be merchantable; and i) not be adulterated or misbranded, at the time of delivery. Seller’s warranties shall run to Buyer, its successors, assigns and customers and users of goods or services sold by Seller. Acceptance or use of the goods or services furnished hereunder shall not affect Seller’s obligations under this paragraph, and such warranties shall survive acceptance and use.
6. Termination by Buyer.
A) Without Cause. Buyer shall have the right to terminate the purchase order or any part by written notice at any time, and if such notice is provided, Seller shall immediately stop all work. Buyer agrees to pay a termination charge equal to the direct out-of-pocket expenses previously incurred by Seller prior to receipt of such notice. Seller shall minimize costs to Buyer which includes, but is not limited to diverting labor, resources, raw materials or components to other projects or purchase orders. Notwithstanding the foregoing, the parties acknowledge and agree that, in no circumstances, shall Buyer be charged for raw materials or components that it routinely sells to other buyers. B) Termination for Cause. If Seller fails to observe or comply with any of the instructions, terms, conditions, or warranties contained in the purchase order, or fails to provide Buyer, upon request, with reasonable assurance of future performance as requested, such failure(s) shall each be defaults allowing Buyer to terminate the purchase order for cause. In addition to any other rights in the purchase order, in the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the causes which gave rise to the termination.
7. Confidentiality/Proprietary Information.
Seller shall consider all information (including price and the terms and conditions) furnished by Buyer to be confidential and shall not disclose any such information to any other third party, or use such information itself for any purpose other than specified in the purchase order, unless Seller obtains written permission from Buyer to do so. Seller shall not advertise or publish the fact that Buyer has contracted to purchase goods and/or services from Seller. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Buyer shall be deemed secret or confidential and Seller shall have no right against Buyer except such rights that may exist under patent laws. All confidential information shall be returned to Buyer upon request.
8. Data Protection Legislation.
The Seller and the Buyer shall comply with the Data Protection Schedule attached hereto as Schedule 1 and incorporated by reference into this Agreement.
9. Intellectual Property Rights.
Unless expressly granted elsewhere, nothing contained in the purchase order shall be construed to grant Seller a license or in any way give ownership to any Buyer-owned intellectual property, except that Seller shall have access to such Buyer-owned intellectual property as required for Seller to fulfill, and solely for the purpose of fulfilling, its contractual obligations under the purchase order. Seller, as part of consideration for the purchase order and without further cost to Buyer, hereby grants and agrees to grant Buyer, and its assignees and customers, an irrevocable, worldwide, nonexclusive royalty-free right and license to use or sell the goods and/or services embodying any and all Seller-owned intellectual property rights. Seller agrees, at its own expense, to defend any suit or action against Buyer or against those selling or using the goods and/or services covered by the purchase order for alleged infringement of intellectual property rights arising from the sale or use of such goods and/or services, and to indemnify and save Buyer and those selling or using such goods and/or services harmless from any damages, liabilities, claims, losses, and expenses (including attorney’s fees) paid or incurred by Buyer in connection with any such suit or action, whether against Buyer or against those selling or using the goods and/or services covered by the purchase order; provided, however, that this indemnity shall not apply to any such damages, liabilities, claims, losses or expenses arising out of compliance by Seller with specifications or statement(s) of work furnished by Buyer.
10. Maintenance, Access to Records and Audit Rights.
Seller shall maintain all records for the longer of (5) five years, the time period required by contract, the time period specified in the purchase order or the time period specified under applicable law after final payment is made. Within five (5) business days after receipt of notice by Seller, Buyer (or its designated representative) shall be allowed access in which to examine, audit and copy, any records or manufacturing processes to determine compliance with applicable laws, the purchase order or to respond to any government inquiry.
11. Work on Buyer’s Premises; Training.
Seller agrees that, while its personnel or agents are on Buyer’s premises, such personnel or agents shall conform to all Buyer’s work rules, safety regulations and its standard practices governing the behavior of its own employees. Seller agrees to require such personnel and agents to take any required training and to work in a manner which complies with this paragraph and all applicable laws.
12. Buyer’s Property.
All special tools, dies, patterns, jigs, drawings, equipment and fixtures (“Tooling”) supplied by Buyer or paid for by Buyer shall remain Buyer’s property and Seller agrees to comply promptly with all disposal and shipping instructions with respect to such Tooling. Seller agrees, at Seller’s expense to maintain all Tooling in Seller’s possession which belongs to Buyer in first-class condition and repair and adequately insure against all damages and loss. Seller further agrees to indemnify Buyer for all damage or loss to such Tooling. Seller shall prominently mark all Tooling “Owned by Envigo”, if possible, given the type of Tooling and agrees not to remove such Tooling from Seller’s facility without Buyer’s written permission.
13. Safety and Environmental Requirements.
Seller shall obtain all permits and abide by all applicable environmental and safety regulations from all federal, state and local regulatory authorities. In order for Buyer to properly discharge, use, store, handle, transport and dispose of the goods and to comply with applicable laws, Seller shall also provide to Buyer, upon request, with any information about the characteristics, components or contents of the goods.
14. Indemnity and Insurance.
Seller shall defend, indemnify and hold harmless Buyer against any and all damages, claims or liabilities and expenses (including attorneys’ fees) arising out of or resulting in any way from any defect in the goods and/or services purchased hereunder, or from any breach of the purchase order by Seller or any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller. Seller shall maintain general commercial liability (including contractual liability & products liability), automobile liability insurance (including non-owned automobile liability) and worker’s compensation, and employer’s liability insurance with such coverage and in such amounts as a reasonably prudent party would maintain to adequately protect Buyer against such damage, liabilities, claims, losses and expenses (including attorney fees). Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by Buyer.
15. Limitation on Buyer’s Liability – Statute of Limitations.
In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the purchase order or from the performance or breach thereof shall not exceed the price allocable to the goods and/or services which give rise to the claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of Buyer as to the goods and/or services delivered hereunder must be commenced within one year after the cause of action has occurred.
16. Compliance with Laws.
General. Seller shall comply with, and give all notices required by, applicable laws bearing on the performance of the purchase order. Seller shall notify Buyer if it becomes aware of any non-compliance by it of any applicable laws and shall take all actions necessary to become compliant. Equal Opportunity/Affirmative Action. The parties hereby incorporate the requirements of 41 C.F.R §§ 60-1.4(a)(7), 29 C.F.R. Part 471, Appendix A to Subpart A, 41 C.F.R. § 60-300.5(a)ii and 41 C.F.R. § 60-741.5(a), if applicable.
This contractor and subcontractor shall abide by the requirements of 41 C.F.R. § 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
This contractor and subcontractor shall abide by the requirements of 41 C.F.R. § 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Import/Export. With respect to certain import and export laws, Seller shall provide to Buyer, upon request, with any information that Buyer requests to obtain an export license, classify a product for import (harmonized tariff schedule number), classify a product for export (Export Control Classification Number ‘ECCN’ and the Schedule B number) or to respond to any government inquiry.
Assignments and Subcontracting. No part of the purchase order may be assigned or subcontracted to third parties without the prior written approval of Buyer. Notwithstanding any written approval granted by Buyer, Seller shall be liable for any acts or omissions of any subcontractor or assignee to the same extent as if they were the acts or omissions of Seller. Setoff. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer. Waiver. Buyer’s failure or delay to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other breach, terms or conditions, whether of the same or similar type. Remedies. Buyer’s remedies shall be cumulative and remedies herein specified do not exclude any remedies allowed by law or in equity. Force Majeure. Buyer may delay delivery and/or acceptance of goods and/or services occasioned by causes beyond its control without penalty or additional expense. Governing Law/Venue. The purchase order shall be construed in accordance with the national laws of the office issuing the purchase order, without regard to conflicts of laws principles. Both parties agree that venue for any actions arising under the purchase order shall be according to the laws of the office issuing the purchase order governing jurisdiction for the sale of international goods, and both parties hereby irrevocably submit to the personal jurisdiction of such courts. Independent Contractor. Seller and Buyer intend that an independent relationship shall be created by this agreement and nothing herein shall be construed as creating an employer/employee relationship, partnership, joint venture, or concerted action. Survival. All paragraphs of the purchase order and any referenced or attached documents which by their nature should survive termination shall survive termination including, but not limited to paragraphs 1, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 and shall bind the parties and their legal representatives, successors, and assigns.
DATA PROTECTION SCHEDULE
Data Protection Legislation shall mean the General Data Protection Regulation ((EU) 2016/679) and any other data protection or privacy law relevant in the applicable Jurisdiction as defined in this Agreement.
1. DATA PROTECTION
1.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
1.2. The parties acknowledge that in entering into this agreement and performing their respective obligations thereunder, each party may collect and process certain Personal Data, meaning information about identifiable individuals, pertaining to employees or representatives of each company. In this regard, each party may act as a data controller or data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation) in relation to the Personal Data of each other’s employees or representatives.
1.3. Without prejudice to the generality of clause 1.1, the parties will ensure that they have all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data for the duration and purposes of this agreement.
1.4. Without prejudice to the generality of clause 1.1, each party shall, to the extent that the General Data Protection Regulation applies to processing in relation to any of each other’s employees or representatives Personal Data processed in connection with the performance of obligations under this agreement:
(a) process that Personal Data only on the written instructions of the respective Data Controller unless the Data Processor is required by Applicable Laws to otherwise process that Personal Data. Where the Data Processor is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Data Processor shall promptly notify the Data Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Data Processor from so notifying;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Data Controller, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
(i) appropriate safeguards are in place in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Data Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Data Processor complies with reasonable instructions notified to it in advance by the Data Controller with respect to the processing of the Personal Data;
(e) assist the Data Controller, at its cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Data Controller without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Data Controller, delete or return Personal Data and copies thereof on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
1.5. The Data Controller consents to the Data Processor appointing a third party processor under this agreement and the Data Processor shall promptly inform the Data Controller of the identity of the third party processor. Data Processor confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Data Controller and the Data Processor, the Data Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
1.6. Either party may, at any time on not less than thirty (30) days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement.