Standard Terms & Conditions of Purchase
This purchase order constitutes an offer by Regenyx LLC (“Buyer”) to the supplier to whom this purchase order is issued (“Seller”) to purchase the articles, materials, services or equipment covered by this purchase order (the “Product”) exclusively upon the terms and conditions of purchase set forth below (or incorporated herein by reference) and shall become a binding contract including such terms and conditions upon either issuance of an order acknowledgement hereof by Seller or substantial performance hereunder by Seller (the “Agreement”). No contrary or additional terms or conditions of sale proposed by Seller will be accepted by Buyer and any such proposed contrary or additional terms are to be construed as proposals for addition to this Agreement which are hereby rejected unless otherwise indicated in a written instrument executed by an authorized officer of Buyer making specific reference to this purchase order and the specific contrary or additional term proposed by Seller. Seller’s performance pursuant to this order shall be deemed unqualified acceptance of these terms and conditions of purchase set forth below.
The price for the Product sold hereunder shall not be higher than that appearing on the face of this purchase order, or if no price appears thereon, then not higher than the last price quoted by Seller. Seller covenants that if it should at any time prior to the delivery of the Products covered hereby sell like articles, materials, services or equipment in similar quantities to any third party at lower prices, it will notify Buyer in writing of such lower prices and Buyer will receive the full benefit of such lower prices from the date of such sale to any third party.
All Products sold and delivered to Buyer hereunder shall be in full conformity with Buyer’s specifications set forth or referred to on the face hereof or if none are set forth or referred to, shall be in conformity with Seller’s published specifications and samples provided to Buyer. All Products sold and delivered to Buyer will be new, fit and sufficient for the use intended by Buyer and will be merchantable and of good quality and workmanship and free from defects. The foregoing warranty shall survive any acceptance of the Products by Buyer and shall be in addition to any warranty expressly furnished or represented to Buyer by Seller. Seller will defend, indemnify and hold harmless Buyer and its customers from and against any and all costs (including reasonable attorneys’ fee and experts’ fees incurred), expenses, damages, losses, liabilities, penalties, judgments attributable to any Product delivered hereunder that fails to conform to the warranty set forth herein or which is otherwise implied by applicable law.
3. Packing and Shipping
Products shall be packed and labeled (at no additional charge) in accordance with good commercial practice and all applicable federal, state, and local laws, regulations, and orders (a) to insure against personal injury or harm, and against damage from weather, handling, and transportation, and (b) to permit efficient handling and secure lowest transportation charges. All damages resulting from improper packaging to items or otherwise shall be paid by Seller.
All Products delivered hereunder shall be subject to final inspection and acceptance by Buyer at its facility notwithstanding prior payment or inspection at Seller’s facility. Acceptance of any Products shall not alter or affect the warranties of Seller referenced above. Buyer may, at its option, either hold rejected Products for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s expense and require their correction, and Seller shall promptly reimburse Buyer for any and all damages sustained by Buyer as a result of failure of Products to conform to the provisions and specifications set forth in this purchase order.
Buyer reserves the right to cancel this order or any part thereof, or terminate this Agreement, and Buyer’s sole responsibility to Seller shall be to pay the agreed price for such Products as have been delivered as of the time such cancellation is effective and to reimburse to Seller its actual costs of materials and direct labor expended by it in reasonable anticipation of its fulfillment of this Agreement which are not recoverable by Seller, provided that no allowance shall be made to Seller for any overhead or anticipated profit for undelivered Product, Buyer’s maximum liability on account thereof shall be agreed price for the Products as set forth in paragraph 1 above, and Seller shall deliver to Buyer any inventory paid for by Buyer under this paragraph 5.
6. Time and Delivery
Because Buyer’s business and operations are in part dependent on receipt of the Products that are the subject of this Agreement, timely delivery of the Products is essential to the performance of Seller’s obligations hereunder. Unless otherwise specified on the face of this purchase order, terms of the delivery of the Products are F.O.B. destination with freight prepaid. Deliveries shall be made at the times and of the quantities specified on the face of this purchase order, and Seller shall not, without the written consent of Buyer, make shipment in advance of such schedule. Buyer may order expedited routing in place of scheduled routing, if necessary to meet schedule or recover time lost by any delay, in which event any excess transportation costs shall be paid by Seller. Buyer may postpone delivery of any Products covered hereby. Overshipments may be returned by Buyer at Seller’s expense or retained by Buyer at no increase in price. Seller shall not make any commitment of production arrangements in excess of the amounts, or in advance of the time, necessary to meet Buyer’s delivery schedule for Products.
Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, quantities, packaging, time and place of delivery and method of transportation. If any such change causes an increase or decrease in the cost or the time required for performance, an equitable adjustment shall be made and this Agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph and proceed without delay to perform the order as changed. Unless Seller presents to Buyer an itemized claim within thirty (30) days after the receipt of notice of such change, Seller shall be conclusively deemed to have waived all claims against Buyer with respect thereto.
8. Excusable Failure or Delay
Neither Buyer not Seller shall be held responsible for the failure or delay in delivery or acceptance of Products where such failure or delay is attributable to any act of God or of the public enemy, war, compliance with laws, civil commotion, governmental acts or regulations, in any case, not in effect as of the date of this purchase order, fire, flood, quarantine, embargo, epidemic, unusually severe weather or other cases similar to the foregoing beyond the reasonable control of the party so affected. The party seeking to avail itself of any of the foregoing excuses must promptly notify the other party of the reasons for the failure in delivery or acceptance and shall exert its best efforts to avoid further delay.
9. Intellectual Property Warranty and Indemnity
Seller warrants that the Products delivered to Buyer hereunder, and the use of the Products for their normal purposes, will be free from any claims of infringement of patent, design, copyright, trademark, service mark, trade secret or any other intellectual property right of any other party. If any third party asserts any such claim or allegation against Buyer of its customers, Seller shall defend, indemnify and hold harmless Buyer and its customers from and against any and all costs (including reasonable attorneys’ and experts’ fees incurred), expenses, losses, damages, liabilities, penalties, or judgments relating to such claim or allegation.
10. Assignment of Work Product to Buyer
All work product developed by Seller in connection with its performance under this Agreement, including (but not limited to) computer files, concepts, ideas, designs, discoveries, drawings, inventions, models, plans, programming, schedules, specifications, technical documentation, software or source code (“Work Product”) is Buyer’s property and all right, title and interest, including (without limitation) copyright interest, shall belong exclusively to Buyer and shall be assigned to Buyer accordingly. Seller is not permitted to retain copies of such Work Product and shall deliver all Work Product to Buyer with the Products ordered hereunder. Seller shall not photograph or otherwise visually document any Work Product except for archival purposes. This Agreement transfers all right, title or interest, including (without limitation) copyright and patent, that Seller may otherwise have in such Work Product to Buyer. Seller will at Buyer’s request execute and deliver such documents as in Buyer’s opinion may be necessary, proper, appropriate, convenient or expedient to protect, register, enforce or evidence further Buyer’s ownership of such Work Product. Seller warrants and represents that any tangible Work Product developed by it pursuant to this purchase order will be either original to Seller, in the public domain, or obtained by Seller with the written consent of the owner thereof to use such other work or intellectual property in or to develop the Work Product.
11. Indemnity for Injury to Persons or Property
Seller will defend, indemnify and hold harmless Buyer and its officers, directors, employees, and affiliates from and against any and all costs (including reasonable attorneys’ and experts’ fees incurred), expenses, damages, liabilities, penalties, personal injuries or judgments suffered or incurred by any individual or to any real or personal property attributable to the Products, their use or to Seller’s actions or omissions.
All data and other information obtained by Seller from Buyer in connection with this purchase order, and any Work Product to be delivered to Buyer hereunder, shall be held in strict confidence by Seller and used solely for the purposes originally intended in connection with the purchase order. Seller shall treat such data, information and Work Product with the same degree of confidence that it uses to protect its own proprietary or confidential information (but not less than a reasonable standard of care) and shall ensure that each of its employees to whom such data, information or Work Product is known is bound to maintain the confidentiality of such data, information or Work Product by separate agreement with Seller or by operation of law.
13. Compliance with Laws and Buyer’s Zero Tolerance Harassment Policy
In performing its obligations hereunder, Seller shall comply with the Occupational Safety and Health Act, the Fair Labor Standards Act, and all other applicable federal, state, municipal, or local laws, rules, regulations, orders, decisions or permits of any relevant jurisdiction relating to employment, safety, health and environmental compliance. Buyer has a zero tolerance policy prohibiting harassment of any kind in or about its premises. Seller also agrees to make such reports to Buyer as may be required, including certification of affirmative action. Any violation by Seller, its agents, employees, representatives or subcontractors of any of the foregoing shall be deemed a breach of Seller’s obligations hereunder and Buyer may cancel this purchase order or Agreement (without penalty and without any payment otherwise payable to Seller pursuant to paragraph 5) at any time thereafter. Seller will defend, indemnify, and hold harmless Buyer from and against any and all costs (including reasonable attorneys’ and experts’ fees incurred), expenses, damages, liabilities, penalties, or judgments relating to any breach by Seller, its agents, employees, representatives, or subcontractors of it obligations hereunder.
During the term of this Agreement and for a period of at least one year after completion of Seller’s obligations pursuant hereunder, Seller will maintain the following levels of insurance coverage with a reputable and financially sound insurance carrier: (a) workers’ compensation insurance as required by applicable law; (b) employer’s liability insurance with limits not less than USD $1 million; (c) Commercial General Liability with a minimum combined single limit of USD $2 million per occurrence; and (d) Excess Liability insurance with limits no less than USD $5 million. Seller will provide Buyer with an insurance certificate from its insurance carriers for each of the required foregoing insurance coverages, and naming Buyer as an additional insured for Commercial General Liability and Excess Liability insurance. Seller shall require each of its subcontractors (regardless of tier), if any, to carry insurance in accordance with all of the above terms set forth in the preceding sentences.
15. Software Warranty
If licensing or providing software or a computerized system to Buyer hereunder, whether or not embedded within a system or otherwise, Seller warrants that such software or computerized system will operate without interruption notwithstanding any change in dates, passing of calendar years, leap years, or otherwise. If such software or computerized system should fail on account of the foregoing, Seller shall immediately repair or patch the software or computerized system and defend, indemnify and hold harmless Buyer from and against any and all costs (including reasonable attorneys’ and experts’ fees incurred), expenses, losses, damages, liabilities, penalties, or judgments attributable to the failure of such software or computerized system.
16. No Assignment
Neither this purchase order, the Agreement, nor any right or obligation of Seller hereunder may be assigned or delegated by Seller, by contract, merger, operation of law, or otherwise, to any other party without the prior consent of Buyer which may be granted at Buyer’s sole discretion. Seller is not permitted to engage subcontractors in connection with the performance of its obligations to Buyer hereunder without the prior written consent of Buyer.
17. Independent Contractor
Nothing in this purchase order or Agreement is intended to, or does, create any employee, joint venture, partnership, agency or similar relationship between Buyer and Seller, other than a buyer and seller relationship. Seller shall not be, and it is not authorized to represent itself as, an agent or representative of Buyer for any purposes.
Buyer’s failure to insist on any one or more instances upon the full performance by Seller of any term, covenant, obligation, or condition imposed on it by this Agreement shall not be construed as a waiver of any right available to Buyer hereunder with respect to such nonperformance or as Buyer’s condoning further nonperformance.
19. No Change Order
No change, modification or extension of this purchase order or Agreement shall be effective against Buyer or Seller unless it is made in writing making specific reference to this purchase order and is signed by an authorized representative of Buyer and Seller.
20. Governing Law
This Agreement shall be governed exclusively by the laws of the State of Washington without regard to its conflicts of laws principles that would have a contrary result. Any dispute, claim, or controversy between Buyer and Seller related to this Agreement that cannot be resolved through good faith negotiations shall be finally venued in the Washington State Supreme Court situated in Olympia, Washington or US Federal District Court of the Western District of Washington.
21. Site Rules
If Seller performs any services for Buyer on Buyer’s premises (‘Site”), its employees, and it subcontractors (regardless of tier) shall comply with and observe all directions, rules, and regulations of Buyer relating to conduct while on Buyer’s Site. These directions, rules, and regulations (“Rules”) include, but are not limited to the following: safety and health, fire prevention, environmental, housekeeping, maintenance and protection of the Site, delivery and storage of materials, ingress and egress to the premises, parking, employee conduct, and public relations.
22. Deductions Against Seller’s Invoices
Buyer obligations under this Agreement shall be subject to deduction of any valid claim of Buyer against Seller arising from this or any other transaction. Seller shall be deemed to acknowledge the validity of any claim of Buyer against Seller, if Seller does not notify Buyer that it disputes such claim and specifies with some particularity its reasons therefor within thirty (30) days from the date it receives notice or knowledge thereof.
If any provision of this Agreement shall be deemed invalid or unenforceable, this Agreement shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
All notices, consents, demands and other communications with respect hereto shall be in writing and sent first class mail, postage prepaid, addressed as indicated on the face of the Agreement.
Last modified: October 20, 2021