1. Definitions
The term “Agreement” means the purchase order to which these terms and conditions apply, together with the attached specifications or exhibits of goods or services purchased. The term "Purchaser" means the American Type Culture Collection, a Washington D.C. nonprofit corporation, as well as any entity that controls, is controlled by, or is under common control with it. The term "Supplier" means the vendor providing the goods or services under the Agreement. The term "services" means the purchased services covered by this Agreement. The term "goods" means the purchased property and all property created by any services covered by this Agreement. The term “items” means all goods and/or services, as applicable to this Agreement. The term “Proprietary Information" means trade secrets (as defined by applicable laws), any data, reports, computer programs or models and related documentation, business or research plans, specifications, drawings, designs or information transmitted by Purchaser to Supplier in connection with this Agreement, and any other information that is of value to its owner and is treated as confidential, including without limitation, the fact that Supplier has furnished or contracted to furnish the items to Purchaser. The term "master agreement" refers to any currently effective master services agreement, supply agreement or similarly titled document between Purchaser and Supplier providing terms and conditions applicable to the Purchaser’s purchase of goods or services.
2. Acceptance
Purchaser hereby offers to purchase items from Supplier, and this offer expressly limits acceptance to the terms expressed in this document. To the extent any quotation or other action on the part of Supplier would be construed as an offer by Supplier, such offer is rejected in its entirety, and notification of objection is hereby given to any term in any response to this offer that does not exactly match the terms of this offer. Supplier further understands and agrees that any term or condition proposed by Seller that is inconsistent with the provisions hereof, or is inconsistent with or in addition to any provisions of the Uniform Commercial Code as adopted by the Commonwealth of Virginia, shall be considered a material alteration to the contract contemplated by the parties. Shipment of goods or performance of services by Supplier shall be deemed as an acceptance of this offer along with all its terms and conditions. Such accepted terms may only thereafter be modified by a writing signed by Purchaser, and any "click-wrap", "shrink-wrap" or other preprinted terms and conditions provided by Supplier and not signed by Purchaser shall be void and of no effect irrespective of any other acts taken by Purchaser.
3. Entire Agreement
This Agreement sets forth the complete and final agreement between Purchaser and Supplier with respect to the items, and supersedes any and all prior or contemporaneous oral or written communications. If this purchase order is used as a release for goods or services under a preexisting master agreement, then the Terms and Conditions of this purchase order shall supplement the provisions of such master agreement to the extent they are not inconsistent, but in the event of any inconsistency, the terms of the master agreement shall control. Any reference to a proposal, quotation or other communication by Supplier shall be limited to the description of the items. Any failure of Purchaser to insist on performance of any provision of this Agreement shall not be construed to be a waiver.
4. Prices
Any price set forth in the Agreement is firm, not subject to increase, and includes all charges for packaging, hauling and storage. Notwithstanding, any price reduction by Supplier made with respect to the items covered by this Agreement after placement of the purchase order but before payment will be applicable to this Agreement, and the purchase price will be reduced accordingly.
5. Taxes
The prices for the items provided hereunder include all taxes unless otherwise indicated in the Agreement.
6. Invoices
All invoices shall contain a purchase order number, descriptions of items including any item numbers, sizes, quantities, weight, unit prices and extended totals, shipping costs and supporting documentation. All invoices shall be emailed to [email protected].
7. Payment
Purchaser shall make payment for items within 30 days after receipt of invoice and delivery and acceptance of the goods and complete performance of the services, unless different terms have been stated in this Agreement. Payment of an invoice shall not constitute acceptance of items and shall be subject to adjustment for errors, shortages, defects in the items, damages to Purchaser for which Supplier is partially or wholly responsible, or other failure of Supplier to meet the requirements of this Agreement. If Supplier has any financial obligation to Purchaser, Purchaser has a right to set-off against any payment due to Supplier.
8. Delivery
8.1 Time is of the essence and the goods must be received or services performed on the dates and at the destination(s) set forth in the Agreement. If for any reason (including an event of force majeure) Supplier is unable to deliver the items on such date, Supplier shall immediately notify Purchaser. If Supplier fails to meet any such delivery date, Purchaser may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to Supplier, cancel all or part of the items under this Agreement, or procure substitute items and charge Supplier for any difference in the price thereof. Supplier shall pay any such charges within 30 days of notice thereof. Purchaser shall not be obligated to accept untimely, early, excess or under shipments. Improper shipments in whole or in part may at Purchaser’s option be returned to Supplier or held for disposition at Supplier’s expense and risk. All rejected or over-run goods and material with Purchaser’s printing or identification must be destroyed by Supplier at Supplier’s expense and not sold as surplus.
8.2 In addition to any other right or remedies Purchaser has where there is a late delivery and/or the goods or services are non-conforming, Supplier shall be responsible for all losses and damages incurred by Purchaser, including but not limited to the amount of any claims made against Purchaser by its customers arising from such late delivery or nonconforming goods or services. All remedies provided in this Agreement will be cumulative and in addition to any other remedies provided under applicable law.
9. Freight; Title and Risk of Loss
Unless otherwise specifically provided for herein, Supplier shall be responsible for freight and delivery to the destination specified in this Agreement, and all freight and delivery charges shall be paid by Supplier. Notwithstanding anything else herein, Supplier shall bear all risks of loss and damage to the goods until final acceptance by Purchaser at Purchaser’s "ship to" destination specified in the Agreement. Further, Supplier shall bear the same risks with respect to any goods rejected by Purchaser or as to which Purchaser has revoked its acceptance from the time of such rejection or revocation.
10. Inspection
Notwithstanding any prior inspections or payments, all items shall be subject to final inspection, which may include measurement, testing or examination, and acceptance at Purchaser’s facility within a reasonable time (but not less than 90 days) after receipt at destination. Any inspection by Purchaser does not relieve Supplier of any obligations or liabilities under this Agreement.
11. Warranty
11.1 Supplier warrants that all items furnished hereunder shall: (i) be free from latent and patent defects in workmanship, material, manufacture, and design; (ii) be made in a professional manner consistent with industry best practices by personnel who are qualified by education, training and experience; (iii) comply with all the requirements of this Agreement, including all drawings and specifications incorporated herein and samples and warranties furnished by Supplier; (iv) be merchantable and safe for consumer use, and fit and sufficient for the use intended by Purchaser or its customers; (v) be free and clear of any lien, security interest or other adverse claim against title; (vi) be produced or performed in compliance with all applicable laws including without limitation laws governing weights, measures and sizes; (vii) not be adulterated or misbranded within the meaning of any applicable State food and drug laws or the Federal Food, Drug and Cosmetic Act, or not be an article that may not be sold, legally transported or introduced into interstate commerce under the provisions of section 404 or 505 of the Federal Food, Drug and Cosmetic Act or any other applicable laws; and (viii) not infringe or constitute a misappropriation of any United States or foreign patent, trademark, trade secret, copyright or proprietary right of any third party, including without limitation sale or use of the items alone or in combination with any other goods or services,.
11.2 Supplier further warrants that any goods comprising computer hardware or software: (i) are free from viruses, defects, disabling codes, software routines or hardware components designed to permit (either automatically or through externally applied controls) unauthorized access or allow the goods to be disabled, have content erased, or otherwise be harmed (collectively, "Contaminants"); (ii) have been duly tested to ensure that there are no such Contaminants, and are subject to industry recognized and appropriate release procedures including the latest version of a proprietary virus detection software package subject to Purchaser’s approval, and Supplier shall ensure that corresponding obligations are imposed with its sub-contractors or agents; (iii) have been obtained from a reputable and reliable software developer and not through any interest group or multi-organizational software sharing scheme, and do not include any open source, freeware or shareware; (iv) will comply and function substantially in accordance with any related specifications and user documentation; and (v) are capable of being used normally such that neither the performance nor the functionality of the Products will be adversely affected by any changes caused by the advent of the a particular calendar date.
11.3 The foregoing warranties are in addition to all other warranties, express or implied under the Virginia Uniform Commercial Code which are hereby incorporated by reference, and all other applicable express or implied warranties, all of which shall survive any delivery, inspection, acceptance, and payment by Purchaser.
11.4 Supplier’s warranties shall be effective for one (1) year from the date of Purchaser’s final acceptance unless a longer period is otherwise specified in the Agreement.
11.5 These warranties shall run to Purchaser’s customers and users of its products.
11.6 If any items furnished hereunder do not meet the specifications or warranties specified in this Agreement, or otherwise do not conform to the requirements of this Agreement, Purchaser may, without waiving any claims that Purchaser may have against Supplier with respect to breach of such warranties, do any one or more of the following: (i) reject in whole or in part the shipment and elect to either require Supplier to rework or replace the nonconforming goods or services; (ii) hold the goods for disposition at Supplier’s expense, or return goods to Supplier for credit or refund; (iii) accept all or any portion of the shipment at an appropriate reduction in price; and (iv) procure substitute goods or services, and Supplier shall be liable to Purchaser for any excess purchase price and any expenses incurred in connection with such substitution. Costs of repair, replacement, inspection, transportation, repackaging, and/or re-inspection by Purchaser shall be at Supplier’s expense. Payment for any goods or services shall not be deemed an acceptance thereof.
12. Confidentiality
All Proprietary Information of Purchaser shall remain the property of Purchaser. Supplier shall keep all Proprietary Information of Purchaser confidential and use such Proprietary Information only as necessary to fulfill Supplier's obligations pursuant to this Agreement. All originals, copies, summaries and derivations of Proprietary Information in whatever form shall be returned to Purchaser upon Purchaser’s request.
13. Intellectual Property; Purchaser Use of Items
13.1 Ownership. Supplier agrees that all writings, drawings, designs, copyrightable material, inventions (whether or not patentable), improvements, discoveries, developments, and all works of authorship created by Supplier in performance of services hereunder, including all worldwide rights therein under any patent, copyright, trade secret, confidential information, or any other intellectual property right (collectively "Work Product"), are the sole property of Purchaser. To the greatest extent legally allowable all Work Product shall be considered “Works made for Hire” under applicable intellectual property laws. Irrespective of whether any Work Product constitutes Work made for Hire, Supplier assigns to Purchaser all right, title and interest in and to all such Work Product, and shall perform such further acts needed to transfer, perfect, and defend Purchaser's ownership of the Work Product. Supplier shall require its agents and subcontractors to execute written assignments of Work Product to effect such assignment.
13.2 Purchaser shall have the unrestricted right to use, license and sell all goods obtained from Supplier for any and all commercial and noncommercial purposes. Without limiting the foregoing, Purchaser shall have the right to incorporate any Supplier goods into Purchaser’s products, such as, by way of nonlimiting example, use of any reagents or other biological materials obtained from Purchaser in kits or as elements or ingredients in other Purchaser products, and to sell or license such kits or other Purchaser products for any commercial or noncommercial use by Purchaser’s customers.
13.3 License. To the extent that Supplier or third parties retain ownership rights in any property delivered with the items, or upon which the Work Product is based, Supplier hereby grants to Purchaser an irrevocable, worldwide, non-exclusive, royalty-free right and license to make, have made, modify, use, distribute, publicly perform or display, sublicense, sell, offer to sell, and import such items. Supplier hereby warrants that it owns or has acquired rights in all such intellectual property necessary to grant the licenses and intellectual property rights set forth in this Intellectual Property section.
14. Work on Purchaser’s Premises; Occupational Health Services
If the services are to be performed on Purchaser’s premises, Supplier shall comply with all applicable safety laws and Purchaser’s then current safety and other applicable regulations, processes and procedures. Supplier shall provide Purchaser with a complete list of all chemicals, hazardous materials, and ingredients in the composition of goods or used in the performance of the services hereunder and a copy of the Material Safety Data Sheet for such chemicals and hazardous materials. The submission of such list by Supplier shall not relieve Supplier of exclusive responsibility for the safe transportation, use, storage, and disposal of such materials prior to acceptance by Purchaser. All chemicals and hazardous materials brought by Supplier to Purchaser’s premises shall bear a label stating the identity of the chemical or material and the hazards associated therewith.
15. Indemnity; Insurance
15.1 Supplier shall defend, indemnify and hold Purchaser, its affiliated companies, and their respective shareholders, officers, directors, employees, agents, successors, and assigns harmless from and against any and all claims, suits, actions, liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with (i) any act or failure to act by Supplier; (ii) any items supplied hereunder; (iii) a breach of any of Supplier’s warranties or any other term and condition of this Agreement; (iv) a claim that any items furnished hereunder infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property right or interest of another; (v) a claim of any lien, security interest or other encumbrance on any item; (vi) a violation of any law, regulation, statute or ordinance; or (viii) a failure to comply with the Confidentiality obligations set forth herein.
15.2 Without limiting Purchaser’s rights and remedies hereunder, if Purchaser believes that the goods or services supplied hereunder are likely to be determined to be an infringement or misappropriation of a patent, copyright, trademark, trade secret, or other proprietary right, Purchaser may require Supplier to: (i) replace such goods or services with equivalent functionality; (ii) modify such goods or services with equivalent functionality to make them non-infringing; or (iii) obtain for Purchaser the right and license to use the goods or services, at Supplier’s sole cost and expense.
15.3 Supplier will, at no cost to Purchaser, maintain the following minimum insurance in full force and effect throughout the term of this Agreement: (i) commercial general liability, including products/completed operations and personal injury coverage, with coverage of not less than $1,000,000 USD combined single limit per occurrence and $2,000,000 USD annual aggregate; (ii) umbrella liability, including products/completed operations, with limits of not less than $5,000,000 USD each occurrence; (iii) automobile liability with limits of not less than $1,000,000 USD each accident, bodily injury and property damage combined; (iv) workers’ compensation and employer’s liability in compliance with all statutory regulations in any state or country where any of the Products are provided, manufactured or delivered; (v) property insurance, all-risk, subject to standard exclusions that covers Purchaser’s property while in Supplier’s care, custody or control; and (vi) Professional Errors & Omissions insurance covering all services provided to Purchaser. Upon request, Supplier shall submit to Purchaser certificates of insurance showing proof of such coverages. All such policies shall name Purchaser as an additional insured.
16. Remedies
Purchaser's remedies shall be cumulative, and remedies herein specified do not exclude any remedies allowed by law or in equity. Waiver of any breach shall not constitute waiver of any other breach of the same or any other provision.
17. Purchaser Property
All drawings, artwork, data, material, supplies, equipment, tooling, dies, molds, fixtures, and patterns furnished or paid for by Purchaser, or which have had their cost amortized in the purchase price, shall be Purchaser's exclusive property, and shall be used by Supplier only in performance of this Agreement. Such property, while in Supplier's custody and control, shall be held at Supplier's sole risk and, upon Purchaser's request, shall be returned to Purchaser in good condition.
18. Assignability and Subcontracting
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, neither this Agreement nor any interest therein shall be assigned, delegated or otherwise transferred by the Supplier except upon the prior written consent of Purchaser, and any assignment or transfer without such written consent shall be void and of no effect. Supplier shall not appoint any subcontractor or non-employee to carry out its obligations under this agreement without the prior written consent of Purchaser. In any event, even with Purchaser consent, Supplier shall remain liable for the performance of all such obligations and shall ensure that any permitted subcontractor or non-employee reads, understands and agrees to the terms of this Agreement. Purchaser may assign its rights or obligations under this Agreement without Supplier's consent.
19. Survivorship
All provisions, representations and warranties contained herein which by their nature are required or intended to be observed or performed after termination of this Agreement shall survive its termination.
20. Release of Information
Supplier shall not release any statement, advertisement, information, or publicity referring to Purchaser or stating that Purchaser has acquired or will acquire items from Supplier, or otherwise use Purchaser’s name or any Purchaser trademarks, service marks or other identifiers without Purchaser's prior written approval.
21. Limitation of Purchaser's Liability
IN NO EVENT SHALL PURCHASER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF PURCHASER AS TO THE GOODS DELIVERED OR SERVICES PERFORMED HEREUNDER SHALL BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. IN NO EVENT SHALL PURCHASER’S LIABILITY TO SUPPLIER EXCEED THE PURCHASE PRICE OF THE ITEMS COVERED BY THIS AGREEMENT.
22. Applicable Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF VIRGINIA WITHOUT GIVING EFFECT TO THE VIRGINIA CHOICE OF LAW PROVISIONS. ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT MUST BE BROUGHT IN A FEDERAL OR STATE COURT SITTING IN VIRGINIA, AND SUPPLIER IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF SUCH COURT.
23. Independent Contractor
Supplier shall perform this Agreement as an independent contractor, and Supplier is not an employee, agent, partner or representative of Purchaser. Supplier shall conduct its business under its own name and shall not hold itself out as an employee, agent, partner or representative of Purchaser. Any person employed by Supplier to perform hereunder shall not be deemed an employee of Purchaser. Supplier and Supplier's employees, suppliers, subcontractors, agents or representatives shall not be, or represent themselves to be, officers, employees, agents or representatives of Purchaser and shall not bind, or attempt to bind, Purchaser to any agreement, liability or obligation of any nature. Supplier agrees to pay, and hereby accepts full and exclusive liability for the payment of, any and all contributions and taxes for Unemployment Compensation or Disability Insurance or Old Age Pension or Annuities, and all similar provisions now or hereafter imposed by any Federal or state governmental authority, which are imposed with respect to or measured by wages, salaries, or other compensation paid by Supplier to persons employed by Supplier; and Supplier further agrees to indemnify and save Purchaser harmless against any and all such liability or claims thereof.
24. Sanctions and Debarment
Supplier represents and warrants that neither Supplier nor any director, manager, officer, employee, or any other person acting for or on behalf of Supplier is a person or juristic entity controlled by or acting on behalf of, a person: (i) subject to trade restrictions and/or sanctions imposed or administered by any government agency including without limitation the Specially Designated Nationals and Blocked Persons list and Consolidated Sanctions List of the U.S. Department of Treasury Office of Foreign Assets Control, or (ii) debarred, suspended or proposed for debarment by any government agency.
25. Force Majeure
Purchaser may suspend or fail to accept any shipment from Supplier without penalty or liability in the event of war, riot, flood, acts of God, fire, court order, strike, work stoppage, act of governmental authority, or other causes beyond Purchaser's control.
26. Severability
In the event that any provision of this Agreement is declared invalid by a tribunal of proper jurisdiction, that provision shall be automatically amended and interpreted as closely to the original intent of the provision as permitted by law, and the remainder of the provisions shall remain in full force and effect.
