1. Terms of Agreement
The Purchase Order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the "Purchase Order"), constitutes the entire and exclusive agreement between the Hunter Associates Laboratory, Inc. ("HunterLab") and the supplier (the "Supplier") identified in the Purchase Order. HunterLab"s submission of the Purchase Order is conditioned on Supplier"s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any Purchase Order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on HunterLab"s agreement to such different or additional terms. Supplier"s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier"s acceptance of these terms and conditions. If a Manufacturing Service Agreement exists between Supplier and HunterLab, the terms of the Manufacturing Service Agreement shall prevail over any inconsistent terms herein.
2. Purchase price and terms of payment
All payments are made in U.S. funds or as otherwise specified. All prices shown in this Purchase Order are firm and are not subject to adjustment. HunterLab will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order following the later of: (a) the Delivery Date; (b) the date of HunterLab"s acceptance of all of the goods; or (c) HunterLab"s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, the Supplier"s certification of conformance of the goods to the requirements. HunterLab may, at any time, set-off any amounts Supplier owes HunterLab against any amounts HunterLab owes to Supplier or any of its affiliated companies.
3. Shipment and Packing
Goods are packaged in a manner which assures that they are protected against deterioration and contamination. All goods are delivered to the F.O.B. point specified in the Purchase Order. Supplier will preserve, pack, package and handle the deliverables and products so as to protect the deliverables and products from loss or damage and in accordance with best commercial practices in the absence of any specifications HunterLab may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, packing, labeling, reporting, carriage and disposal. Supplier will include with each delivery of goods a packing list identifying the Purchase Order number, the HunterLab part number for each of the items (if applicable), a description and the quantity of each of the items, and the date of shipment. Unless HunterLab expressly instructs otherwise, Supplier will deliver all goods to the address set forth in the Purchase Order. Risk of loss of the goods and products does not pass to HunterLab until acceptance.
Time is of the essence and failure to deliver goods or services in accordance with an order, if unexcused, shall be considered a material breach of any contract between the Supplier and HunterLab. The Supplier shall notify HunterLab in writing immediately of any actual or potential delay to performance. No acts of HunterLab, including, without limitation, modifications of an order or acceptance of late deliveries, shall constitute a waiver of this provision. HunterLab also reserves the right to refuse or return at the Supplier"s risk and expense shipments made in excess of the HunterLab"s orders or in advance of required schedules or to defer payment on advance deliveries until scheduled delivery dates.
5. Inspection and rejection
The goods and services furnished are to be exactly as specified in the Purchase Order. They are free from all defects in design, workmanship and materials. The goods and services are subject to inspection and test by HunterLab. If the goods and services furnished are found to be defective, HunterLab may reject them, or require Supplier to correct or replace them without charge, or require a reduction in price which is equitable under the circumstances. If Supplier is unable or refuses to correct or replace such items within a time deemed reasonable by HunterLab, HunterLab may terminate this Purchase Order in whole or in part. HunterLab will hold any materials rejected under this Purchase Order at Supplier"s risk and expense, while awaiting Supplier"s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation any charges HunterLab incurs on Supplier"s behalf.
HunterLab may make changes to this Purchase Order including to drawings and specifications for specially manufactured goods, place of delivery, or delivery date of goods by giving notice to Supplier. If such changes affect the cost of or the time required for performance of this Purchase Order, an equitable adjustment in the price or date of delivery or both will be made. No change by Supplier is allowed without written approval of HunterLab. Supplier shall, as promptly as practicable, after given the notice of the change, or within 10 days of receiving a change order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the change. HunterLab reserves the right to reschedule blanket orders at will, without cost, with 15 days written notice. Unless the purchase order is terminated HunterLab is obligated to accept blanket deliveries within one year of Purchase Order issuance.
Supplier warrants to HunterLab that goods supplied under this purchase order are free from defects in material, workmanship and design, suitable for the purposes intended, in compliance with all applicable specifications and free from liens or encumbrance on title. All services are performed in accordance with current, sound and generally accepted industry practices by qualified personnel trained and experienced in the appropriate fields.
In the performance of the services, the Supplier and its subcontractors, if any, may have access to confidential information (hereinafter referred to as the "Confidential Information"). The supplier must hold all of the Confidential Information it receives in strict confidence and neither to disclose or release in any manner such Confidential Information to any third party nor to use such Confidential Information for any other purpose than the one for which HunterLab has disclosed same; to disclose Confidential Information only to those of its employees, agents or contractors who need to know such Confidential Information for the said purpose. The Supplier warrants that such employees, agents or contractors are obligated to and will hold Confidential Information in strict confidence and to take all reasonable measures to ensure that confidentiality is respected. The Supplier shall indemnify and hold harmless HunterLab, its officers, directors and employees from and against any and all liabilities, claims, suits, demands, disputes, recourses, damages and expenses including, without limitation, including reasonable legal fees arising from any and all claims in respect of, or resulting from, the use or the disclosure of Confidential Information by the Supplier, its employees, agents or contractors.
Except for damages caused by the negligence of HunterLab, Supplier shall defend, indemnify and hold HunterLab harmless from all claims, actions, demands, loss and cases of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Supplier, its agents or contractors.
Supplier represents and warrants that:
- a. it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;
- b. the goods provided, and HunterLab"s use of the goods, do not and will not infringe upon any third party"s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights;
- c. Supplier"s goods conform to HunterLab"s specifications, Supplier"s quotation or proposal, and Supplier"s brochures or catalogs, and if none of the foregoing is applicable, then such goods are suitable for the intended use.
- d. In no event will HunterLab be liable to supplier for any incidental, indirect, special, consequential damages or loss of profits arising from, or in connection with, the purchase order, whether or not HunterLab was advised of the possibility of such damage.
This Purchase Order is assignable by HunterLab. This Purchase Order may not be assigned by Supplier without written approval of HunterLab. In case such consent is given, Supplier remains liable as if no such transfer has been made.
A party is in default of its obligations under this Purchase Order if any of the following events occur, namely:
- a. such party is adjudged bankrupt or insolvent by a court of competent jurisdiction, or otherwise becomes insolvent, as evidenced by its inability to pay its debts generally as and when they become due; or
- b. such party is in default of its obligations hereunder and fails to cure such default within thirty days of written notice from the other party, or if such default cannot be cured within thirty days, within such longer period as may be reasonable, provided the defaulting party commences promptly and diligently proceeds with curing the default.
Upon the occurrence of any of the above events, the party not in default may, by written notice to the defaulting party, terminate this Purchase Order without prejudice to any other right or remedy available to it at law and without liability for such termination. HunterLab shall not be liable to Supplier for indirect or consequential damages.
This Purchase Order may be terminated or suspended by HunterLab in whole or in part. HunterLab may deliver to the Supplier a written notice specifying the extent to which performance and/or the deliveries of goods and services under this Purchase Order is terminated and/or suspended and the date upon which such action shall become effective. In the event of such action, HunterLab shall pay Supplier for the goods and services satisfactorily provided to the effective date of termination or suspension. In this case, Supplier may submit a proposal to HunterLab for equitable increase in the prices to account for costs of demobilization and direct termination expenses. The termination of this Purchase Order shall discharge any further obligations of either party.
13. Force Majeure
Supplier shall not be liable for default or delay due to causes beyond Supplier's reasonable control and without fault or negligence on the part of Supplier. The Supplier must give HunterLab prompt notice in writing when any such cause appears likely to delay deliveries and/or performances of services and must take appropriate action to avoid or minimize such delay. If any such default or delay threatens to impair Supplier's ability to meet delivery requirements for its material, supplies and services, HunterLab shall have the right, without any liability to HunterLab, to cancel the portion or portions of this Purchase Order so affected.
14. Governing Law
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the Commonwealth of Virginia.