The following Standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties.
In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the guidelines and legal stipulations of your purchase order (“Order”) with Mapp Biopharmaceutical, Inc. (“Purchaser”) for the goods and/or services that are described on the face of this Order.
- ACKNOWLEDGEMENT, ACCEPTANCE AND TERMS AND CONDITIONS: The written Order sent to Seller constitutes the entire agreement between the parties, unless otherwise specifically noted by Purchaser on the face of this Order. Seller’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute Purchaser’s offer to Seller, which Purchaser may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on Purchaser, whether or not they would materially alter this Order, and Purchaser hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Purchaser and Seller.
- DEFAULT: Time is of the essence of this Order. Purchaser may by written notice of default to Seller (a) terminate all or any part of this Order if Seller fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of this Order to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in this Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller will promptly notify Purchaser in writing. If Seller does not comply with Purchaser’s delivery schedule, Purchaser may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
- PRICE: This Order must not be filled at a price higher than shown on the face of this Order. Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with this Order. No charges of any kind will be allowed unless specifically set forth in this Order. If Seller reduces its prices for such goods and/or services during the term of this Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to Purchaser under this Order.
- QUANTITY: The quantity of materials or services specified in this Order must not be exceeded without first obtaining written consent of Purchaser. Purchaser will not be responsible for any materials or services furnished without a written Order.
- INVOICES AND PAYMENT: Each invoice shall include the Order number and be submitted to Accounts.Payable@mappbio.com. Unless otherwise provided in this Order, no invoices shall be issued for payments to be made prior to delivery of items or services. Individual invoices must be issued for each shipment or service performed under the Order. Payment is contingent upon acceptance of material or services. All payments are subject to adjustment for shortage or rejection of goods or services delivered. Purchaser’s payment liability shall be limited to the amount authorized as set forth in this Order.
- PACKAGING AND SHIPPING: All goods must be packaged in the manner specified by Purchaser and shipped in the manner and by the route and carrier designated by Purchaser. If Purchaser does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Purchaser does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in this Order.
- INSPECTION: All goods and services will be subject to inspection and test by Purchaser at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection will neither relieve Seller from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on Purchaser for them. Purchaser’s payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Purchaser covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to Purchaser during the performance of this Order and for seven (7) years after Seller’s completion of this Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Purchaser, Purchaser may at its option inspect and sort the goods and Seller will pay any related costs.
- WARRANTIES: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Purchaser, (d) the prices for the goods or services sold to Purchaser under this Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation, which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the goods or services. Purchaser’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at Purchaser’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Purchaser notifies Seller of the defect or defects, Purchaser may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Purchaser, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Purchaser’s written consent.
- INDEMNIFICATION: Seller shall indemnify and hold Purchaser and its affiliates harmless and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
- LIMITATION OF LIABILITY: PURCHASER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- PURCHASER’S PROPERTY: Tangible or intangible property of any nature furnished to Seller by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Seller solely to render services or provide goods to Purchaser. Seller will not substitute any property or take any action inconsistent with Purchaser’s ownership of such property. While in Seller’s custody or control such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser’s written request, in which event Seller will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
- CHANGES: At all times Purchaser will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this Order will be modified in writing accordingly. Nothing in this Section 12, including any disagreement with Purchaser as to any claimed adjustment, will excuse Seller from proceeding with this Order as changed. Any claim by the Seller for adjustment under this Section 12 must be in a detailed writing and delivered to Purchaser within five (5) days after the date Seller receives notification of such change. Any change will be authorized only by issuance of an amendment to this Order.
- COMPLIANCE WITH LAWS: Seller represents and warrants that all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
- EQUAL EMPLOYMENT OPPORTUNITY: Seller shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require Seller to take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status.
- CONFIDENTIAL OR PROPRIETARY INFORMATION: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Purchaser, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and will be acquired by Purchaser, free from any restrictions. Seller will not transmit to Purchaser any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Purchaser in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser’s prior written consent. Except as required for the efficient performance of this Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Seller will promptly return to Purchaser all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Seller without the prior written agreement of Purchaser.
- WORK ON PURCHASER’S PREMISES: If Seller’s work under this Order requires Seller to be on the premises of Purchaser or at Purchaser’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.
- INSURANCE: Seller will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers’ Liability insurance as well as appropriate Workers’ Compensation insurance as will adequately protect Purchaser from all claims, damage, liabilities, and losses.
- TERMINATION: Purchaser may terminate all or any part of this Order for convenience at any time by written notice to Seller. Upon such termination, Purchaser’s liability will be limited to reasonable termination charges mutually agreed by Seller and Purchaser, provided that Seller must specify any proposed charges in writing within fifteen (15) days after receipt of written notice of termination. This Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
- (a) NON-ASSIGNMENT: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
- (b) TRANSPORTATION: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided in this Order. Title and risk of loss shall not pass to Purchaser until delivery of the goods to the location designated on this Order and acceptance by Purchaser. If Purchaser rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.
- (c) FORCE MAJEURE: Neither Purchaser nor Seller shall be responsible for any delay or failure in performance from any causes beyond their control, including, but not limited to war, strikes, civil disturbances and acts of God. When Seller has actual knowledge of any actual or potential force majeure or other conditions, which will delay or threatens to delay timely performance of this Order, Seller shall immediately give notice thereof, including all relevant information with respect to what steps Seller is taking to complete delivery of the good goods and/or services.
- (f) REMEDIES: Each of the rights and remedies reserved to Purchaser in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.
- (g) PUBLICITY: Seller will not use Purchaser’s name or logo in publicity, advertising, or similar activity, except with Purchaser’s prior written consent.
- (h) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price.
- (i) GOVERNING LAW: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of California in the United States of America without regard to its conflict of law principles.
- (j) SUBCONTRACTING: Seller shall not procure or contract for the procurement of any goods and/or services covered by this Order without first securing the written approval of the Purchaser.
- (k) SURVIVAL: Seller’s obligations under Sections 7, 8, 9, 10, 11, 13, 14, 15 and 18 (f), (i), (j), (k), (l), (o), and (q) will survive any termination of this Order.
- (l) WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
- (m) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to Mapp Biopharmaceutical, Inc. 6160 Lusk Blvd, Suite C200, San Diego, CA 92121, to the attention of the Agent set forth in the Order, and to Seller at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party.
- (n) SEVERABILITY: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
- (o) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order.
- (p) ENTIRE AGREEMENT: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of these Terms even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
- GOVERNMENT CONTRACTS:If the Order is placed under a United States Government contract, in addition to Sections 1 through 18 listed above, this Order may be subject to pertinent provisions of the Federal Acquisition Regulation and/or agency supplemental regulations. All such pertinent contract provisions are hereby incorporated by reference into this Order and set forth in Attachment I (“FLOW-DOWN CLAUSES APPLICABLE TO PURCHASE ORDERS INVOLVING FUNDS FROM A FEDERAL GOVERNMENT CONTRACT”) hereto. Seller shall comply with all provisions to the extent that they apply to the subject matter or this Order with the same effect as if they were provided in full text.
- ADDITIONAL TERMS AND CONDITIONS FOR SELLERS PERFORMING SERVICES ON BEHALF OF PURCHASER IN A FOREIGN COUNTRY:
In connection with services performed by Seller for Purchaser in a foreign country (“Services”), Seller and each of its officers, directors, employees, agents, or other representatives (collectively, “Company”) acknowledges and agrees to the following:
The U.S. Foreign Corrupt Practices Act (the “FCPA”) prohibits not only payments, but also promises or offers to pay or transfer anything of value, directly or indirectly, to induce or influence Foreign Officials to use their position for the purposes of obtaining or retaining business, directing business to any person or entity, or securing any improper business advantage (15 U.S.C. §78-dd-1, et seq.). The FCPA applies to all United States businesses, as well as to persons acting on their behalf in foreign countries. The FCPA also applies to certain foreign nationals or entities that either directly or through an agent engage in any act in furtherance of a corrupt payment while in the U.S. The FCPA’s anti-bribery provisions can apply to conduct both inside and outside the United States. For instance, using the U.S. mails, placing a telephone call or sending an e-mail, text message or fax from, to, or through the United States, or sending a wire transfer from or to a U.S. bank can all be considered acts in furtherance of a corrupt payment to a foreign official.
“Foreign Official” is broadly interpreted to include any officer or employee of a foreign (i.e. non-United States) government or any department, agency or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency or instrumentality, or for or on behalf of any such public international organization, or any foreign political party member of official thereof, or any candidate for foreign political office. While these descriptions are the most common examples of Foreign Officials, they are not exhaustive, and the United States federal government may interpret the term more broadly at its discretion.
In accordance with FCPA guidelines, Company is prohibited from either directly or indirectly: (1) offering, requesting or receiving a bribe from any individual or entity, whether public or private; and (2) giving, offering, or authorizing the offer or giving of anything of value (such as money, goods, services, business opportunities, favorable contracts, stock options, gifts and entertainment) in order to obtain or retain business, direct business to any person, receive an improper advantage, or influence any act or decision of any of the following:
- any government official or employee (including state-owned enterprises);
- any person or firm employed by or acting for or on behalf of any government;
- any political party (or party official) or candidate for political office (or party position);
- any officer or employee of public international organizations (e.g., United Nations); or
- any family member or other representative of any of the above.
Such payments are barred even if:
- The benefit is for someone other than the party making the payment;
- The business sought is not with the government;
- The payment does not in fact influence the Foreign Official’s conduct; or
- The Foreign Official initially suggested the payment.
Therefore, by virtue of its acknowledgment of these Terms and Conditions, Company hereby CERTIFIES that:
- It will comply with the FCPA and all other applicable anti-bribery and anti-corruption laws and regulations.
- It will not: offer or promise to make or make payments or gifts where it is known or believed that there is a high likelihood that at least a portion of such payment or gift will be offered to a Foreign Official, or the circumstances indicate there is a high likelihood that such payments or gifts will be given (in other words, have “reason to know” or “should have known” that a bribe would occur); make payments to organizations, including charities, hospitals, and relief funds, at the direction of or for the benefit of any Foreign Official; perform acts “in furtherance of” an improper payment, such as arranging for funds to be available for an improper payment; make payments to retain assets, such as an “under the table” payment to a tax official to settle a tax claim; or make “facilitating payments”, or payments made for the purpose of facilitating or expediting routine, lawful services or non-discretionary administrative actions, such as obtaining an ordinary license or business permit, processing government papers such as visas, providing police protection, providing telephone, power or water service, or loading or unloading of cargo.
- It has a compliance program and is committed to ethical and lawful business practices, including but not limited to having policies and procedures regarding the FCPA and all other applicable anti-corruption and anti-bribery laws and regulations, and providing FCPA training to its officers, directors, employees and agents.
- It has not participated in any unreported or prohibited transactions or activities as of the effective date of this Certification and knows of no participation in prohibited activity by any of its directors, officers, employees or agents. Furthermore, it will promptly report any potential or actual violations of the FCPA or other applicable anti-corruption and anti-bribery laws and regulations to Purchaser and will cooperate fully with Purchaser to investigate and remediate any such violations, which may include providing access to personnel, documentation and communications (written, electronic, and verbal) which pertain to the Services. Contractor further agrees to fully comply with any official investigation of a violation conducted by the U.S. Securities and Exchange Commission (SEC) or Department of Justice (DOJ).
- The Company acknowledges that Purchaser may terminate its contract with the Company, without penalty, for any potential or actual violations of the FCPA or other applicable anti-bribery or anti-corruption laws and regulations. Furthermore, the Company agrees to indemnify Purchaser for any violation of the FCPA or other applicable anti-corruption and anti-bribery laws and regulations and compensate Purchaser for all damages arising from the violation.