These terms and conditions of purchase ("Terms") apply to our (New England Biolabs, Inc. or NEB; also we or us) purchase of the products or services listed on the front of the attached purchase order form ("Goods"), unless we otherwise expressly agree with you in writing. We expressly reject any additional or different terms you submit, use or refer to. The "Order" is our written offer to purchase Goods from you, and includes our purchase order form, any other documents we attach to the purchase order, and terms and information we refer to in these Terms, and our offer to purchase Goods is expressly conditioned upon your acceptance of these Terms. Any attempt by you to vary the terms of this Order are hereby rejected unless we expressly agree in writing to additional or amended terms. Our failure to object to any terms and conditions contained in any terms of sale or other document from you will neither be construed as our acceptance of such terms and conditions, or a waiver of these Terms.This Ordersupersede all prior agreements and understandings between us, whether written or oral."You" or "your" for purposes of these Terms, means the legal entity offering the Goods for sale to us as identified in the face of this Order.
- Orders. We may cancel our Order at any time prior to your acceptance. You accept our Order when you: (a) provide us written acknowledgement of acceptance (email is sufficient); (b) deliver the Goods to our place of destination; or (c) have not rejected the Order within 10 business days following your receipt of our Order. Once you accept our Order, you must sell and deliver the Goods to us according to all terms of the Order. We may request a change to our specifications, drawings, designs, shipping instructions or other terms of our Order at any time. If we request a change after you have accepted our Order, then you must notify us within 10 business days of receiving our requested change and indicate whether and to what extent the change will affect the price of the Goods or the time of delivery. If we receive your notice within the required 10 business day time period, we may either cancel this Order or proceed with this Order with the changed price or terms specified by you. If we do not receive your notice within the 10 business day required time period, you may not change the price or time of delivery for any affected Goods.
- Price, payment terms and invoicing. Subject to the next sentence, the price we pay you for the Goods is set out on the face of this Order. Prior to our receipt of the Goods, if you reduce your list price for such Goods, then the price we pay for the Goods will be the lower of the price on the face of this Order or the reduced list price. Purchase prices include all charges, such as taxes, charges for packing, containers, insurance and transport, unless we say otherwise on our Order. We will pay undisputed amounts within 30 days of receiving your invoice.
- Shipping; Risk of Loss. You must deliver the Goods to the destination specified in this Order in accordance with our shipping instructions and specifications. Unless we specify otherwise in our Order, you will deliver the Goods according to FCA (lncoterms 2010) place of delivery, to our carrier or named place. If you ship Goods by an unauthorized method or carrier, you will pay any resulting increased freight costs and will remain responsible for any risk of loss and damage to the Goods until they reach our named place of delivery. Title and risk of loss pass to us when you deliver the Goods to our designated carrier or named place.
- Delivery. Time is of the essence. You must notify us immediately if the delivery will be delayed. If your delivery is late, we may, without limiting any of our other rights or remedies: (a) refuse to accept any subsequent delivery of the Goods; (b) obtain substitute goods from another supplier and recover from you our reasonably incurred costs in doing so; (c) claim damages for any costs, expenses or losses resulting from your failure to provide the Goods on time; (d) require a refund of any charges paid for such Goods; and/or, (e) cancel this Order in whole or in part without liability to us. We will not accept early deliveries unless we have agreed in advance. You must not make partial delivery of Goods unless we provide you with prior approval.
- Acceptance. If you deliver Goods that do not meet the requirements or specifications of our Order, we can reject the Goods within a reasonable time after delivery and inspection. If rejected, at our option, and without affecting any of our other rights and remedies, we can: (a) request and receive a refund for the price we paid for the Goods, including all shipping and taxes; or (b) buy replacement goods from elsewhere and claim from you any extra expenses we incur for doing so. If we pay you before delivery, it will not affect our right to reject the Goods and reclaim the payment from you. If we accept any Goods under this Order, it does not mean we have to accept future shipments or give up any rights to return Goods we have already accepted. Our acceptance of Goods will not affect our right to make a warranty claim under Section 6.
- Warranties. In addition to all warranties which apply by law, you represent and warrant that (a) the Goods are and will be free from defects in design and workmanship and that they meet all specifications, drawings, and approved samples which apply; (b) the Goods are fit for the intended purpose and are fit to be sold; (c) you will perform all services using all due care, skill and effort in accordance with the generally accepted standard in the industry; and (d) our title to all Goods and deliverables that you create for us are and will be free from all claims and encumbrances. Our payment, inspection or testing of the Goods does not diminish our ability to enforce any warranty. Without affecting any of our other rights, for all defective Goods you deliver to us, you must, at our option, either repair or replace the Goods, re-perform the services or refund the cost of the defective Goods, including all transport and other charges we paid for the defective Goods.
- Indemnity. You will indemnify and hold us and our affiliated entities harmless from all claims and all direct, indirect and consequential liabilities (including loss of profits, loss of business and similar losses) costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by us as a result of or in connection with: (a) any alleged or actual infringement of any third party's intellectual property rights or other rights arising out of the supply or use of the Goods; (b) your failure or delay in your performance of this Order; (c) your breach of any material representation or warranty under or related to this Order; (d) your negligence or willful misconduct; (e) any third party claim made against us for death, personal injury or damage to property arising out of, or in connection with, defective Goods, to the extent that such defect in the Goods is attributable to of you, your employees', agents' or subcontractors' acts or omissions; or (f) any recall of any Goods, except to the extent a recall or withdrawal of the Goods is solely the result of our modifications to the Goods or your compliance with a design we directed you to use.
- Packing and Marking. You will package all Goods in accordance with our Order and standard commercial practices customary for similar goods. You must label each shipment with the applicable purchase order number and an itemized packing list and such other information or other requirements as we reasonably request or as required by applicable law. You must mark all Goods with the appropriate country of origin. You must indicate whether or not the Goods are of animal origin. You must send us Certificate(s) of Analysis if applicable to our Order. You must send us Safety Data Sheets according to the Globally Harmonized System of Classification and Labelling of Chemicals for hazardous materials before or with the shipment. You must advise us about any precaution necessary for us to store, handle, and use the Goods. You will provide us with information about components of and materials in the Goods, so we can comply with the Safety Data Sheets and other applicable laws.
- Our Property. Our property includes all tooling, dyes, parts, schedules, specifications and all related reproductions, and any other property that we furnish to you or that you create for us under this Order. We own all of our property but if we provide property to you to use in your performance of this Order, you must use it only as necessary to fulfill our Order as we direct you. You assume all liability for loss of, and damage to, our property while in your control, and you must, unless we direct you otherwise in writing, insure our property in an amount equal to its replacement cost with loss payable directly to us. We may remove (or have removed) our property at any time upon notice to you.
- Insurance. You must maintain appropriate and adequate insurance against any claims about the development, manufacture, sale, distribution, or use of the Goods. You will give us proof of this insurance upon request.
- Confidentiality, Data Privacy & Security. You must keep our Order including all information we have given you and will give you for this Order, as confidential. You may only use personal information and technical information we have given you to manufacture the Goods or to perform the applicable service, and not for the benefit of any third party. You must implement and maintain appropriate security measures to protect such personal information consistent with applicable Massachusetts law and federal regulations, and upon our request, provide documentation demonstrating such security measures. Upon our request, you must return to us any property, designs, or other information and any copies we have given you in connection with this Order. Notwithstanding the prior statements, nothing in these Terms is intended or will be construed to prevent any person or entity from lawfully reporting fraud, waste or abuse under any U.S. Government contract to an investigative or law enforcement representative of a U.S. Government agency.
- Termination. We may terminate this Order: (a) if you breach these Terms, including if you fail to deliver the Goods on time, in which case we may reject all or any of the Goods delivered, and either tell you to remove the Goods from our premises or return them to your premises and you must pay our costs for doing this; (b) at any time by giving you notice in writing, and upon receiving our written notice, you must stop producing the Goods or providing the services covered by this Order. If we terminate at will, we will pay a fair and reasonable price for all work delivered (or ready to be delivered) on the date we give you notice, together with any other reasonable charges we directly cause by terminating this Order.
- Subcontracting. If you use a subcontractor to carry out any of your obligations under this Order, you will be and remain fully responsible for their actions and omissions and for the actions and omissions of their employees and agents. You will ensure that all subcontractors performing under this Order treat all of our information as confidential. There will be no contractual relationship between any of your subcontractors and us.
- Background Checks. You will perform, and if applicable, require your agents and subcontractors to perform, thorough and pertinent background checks on all agents, subcontractors and employees who provide us Goods, with the results of those background checks indicating no risk of harm to us or our customers. At our request and for any reason, you will immediately stop utilizing to perform and will remove any agent, subcontractor or employee whose Goods we refuse.
- Assignment. You may not assign any of your obligations under this Order without our prior consent.
- Independent Contractor. You are an independent contractor. Nothing in these Terms or an Order is intended to, or will operate to, create a partnership between you and us, or to authorize either party to act as an agent for the other, and neither party will have the authority to act in the name of, on behalf of, or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Governing Law. This Order is governed by the laws of the Commonwealth of Massachusetts, without reference to any conflict of laws' provisions. Both parties hereby consent to the venue and jurisdiction of the courts of such jurisdiction.
- Compliance with Laws. You must fully comply at all times with all laws and regulations applicable to this Order and the manufacture, sale, provision, delivery and use of the Goods, including without limitation, all laws and regulations governing: (a) the workplace/labor/employees; (b) environmental safety; (c) product and health safety; and (d) the country of origin. You certify that the Goods do not require a license for export or re-export under U.S. export law or the laws of the country of origin of the Goods, based upon the technology, composition, nature, or intended use of the Goods. You must notify us in writing if any Goods become subject to export and/or re-export control laws of the U.S. or the country of origin of the Goods.
- FCPA Compliance. You and your employees, subcontractors and agents must at all times comply with all requirements of the U.S Foreign Corrupt Practices Act.
- Notification of Debarment or Suspension. By accepting our Order, you certify that neither you, nor your employees, subcontractors or principals, are debarred, suspended, or are proposed for debarment by any relevant federal, state, or local government agency or any equivalent foreign governmental authority. If you are subject to investigation by an Authority which could lead to debarment, or if you, or any of your employees or principals, are debarred, suspended, or proposed for debarment, you will notify us in writing immediately.
- Invalidity, Waivers and Remedies. If any part of these Terms or this Order is declared invalid, it does not affect the validity of the remainder of the Terms or Order. Our remedies are cumulative and apply in addition to any other remedies in law or equity. Our waiver or breach of any part of this Order does not constitute a waiver of any other part or breach of this Order.
- Publicity. Neither party will use the name or any trademark, trade name, logo or symbol of the other party, or disclose any matters relating to this Order, in any advertising, promotion, press/publicity releases, written articles or other communications without the prior written consent of the other party.
- U.S. Government Requirements. To the extent an Order supports a U.S. Government funded agreement, and you are not exempt, you must abide by the following U.S. Government regulatory
(a) 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 that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability; and
(b) Mandatory Flow-downs. If an Order is in support of a U.S. Government acquisition contract, the mandatory clauses reflected in FAR 52.212-5(e), or FAR 52.244-6, shall apply to your Order to the extent applicable. If an Order is in support of a U.S. Government grant award, the mandatory clauses reflected in the Uniform Guidance at 2 C.F.R. Part 200, Appendix II, shall apply to your Order to the extent applicable.