General Terms and Conditions
1. Definitions.
The "Terms" means these General Terms and Conditions. "Buyer" means Celltrion Branchburg, LLC. "Vendor" means the supplier named on the Purchase Order (as defined below). Buyer and Vendor may be hereinafter referred to individually as a "Party" and collectively as the "Parties".
2. Applicability.
(a) The Terms are the only terms which govern the purchase of the goods ("Goods") by the Buyer from the Vendor. Where the context requires, "Goods" is to be read as including services.
(b) The purchase order attached herein (the "Purchase Order") and the Terms (collectively, the "Agreement") comprise the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any terms and conditions of Vendor, including, but not limited to, those on Vendor's website, shall not be binding, regardless of whether or when Vendor has submitted its sales confirmation or such terms and conditions of Vendor.
The offer and acceptance of any Purchase Order issued by Buyer are expressly and strictly limited to these Terms and the applicable Purchase Order. Any additional, different, or conflicting terms or conditions contained in any proposal, quotation, acknowledgment, invoice, or other document or communication issued by Vendor are hereby expressly rejected and shall be null and void, whether or not such terms are designated as material and regardless of Buyer's acceptance of goods or services, payment, or other performance.
No term or condition proposed by Vendor shall become part of the contract unless Buyer expressly agrees to such term in a written amendment signed by an authorized representative of Buyer and specifically references the applicable Purchase Order.
3. SaaS Agreements.
Notwithstanding anything to the contrary in these Terms, to the extent a Purchase Order involves the procurement of cloud-hosted software-as-a-service ("SaaS") applications, platforms, or related services provided on a subscription basis, such procurement shall be governed exclusively by Buyer's General Terms and Conditions for Software-as-a-Service, available at [https://www.celltrionbranchburg.com/saas-terms/] (the "SaaS Terms"), and not by these Terms. The SaaS Terms shall apply solely to Vendors that have entered into a Purchase Order for SaaS services and only with respect to such SaaS services; Vendors that do not provide SaaS services to Buyer shall not be bound by, or have any rights or obligations under, the SaaS Terms. In such event, the SaaS Terms, together with the applicable order form executed thereunder, shall constitute the entire agreement between the Parties with respect to such SaaS services. The provisions of these Terms — including Sections 31 through 37 (Software, Information Technology Hardware, or Related Services) — shall not apply to any SaaS services. Any Vendor providing both Goods (or on-premise software, hardware, or related services) and SaaS services to Buyer shall be subject to (i) these Terms with respect to the Goods, on-premise software, hardware, and related services, and (ii) the SaaS Terms with respect to any SaaS services, and each set of terms shall apply independently to the applicable subject matter.
4. Acceptance.
Vendor shall accept the Purchase Order in writing no later than five (5) business days after receipt of the Purchase Order. If Vendor fails to provide a written response within such five (5) business days, the Purchase Order shall be deemed accepted. Following submission of the Purchase Order, Buyer may request expedited delivery of the Goods, in which case Vendor shall provide reasonable cooperation to meet such request. Upon acceptance, Vendor shall submit an invoice, certificate (CoA or CoC), and any other documents upon Buyer's request. The invoice submitted by Vendor must reference the Purchase Order number and, as applicable, include invoice number, invoice date, description, price and quantity of goods/services provided, net weights, and total amount due. Buyer's Purchase Order line number must appear with each item listed on invoice. Vendor shall not cancel the accepted Purchase Order without Buyer's consent. Buyer reserves the right to cancel any unshipped Goods of the Purchase Order.
5. Delivery of Goods.
(a) Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the Parties (the "Delivery Date"). If at any time it appears that the Goods will not be delivered in accordance with the Delivery Date, the Vendor shall notify Buyer in writing indicating the best delivery date possible. If Vendor fails to deliver the Goods in full on the Delivery Date, Buyer has the right to terminate this Agreement immediately by providing written notice to Vendor, without prejudice to any rights, remedies, or claims Buyer may have, including without limitation any claim for liquidated damages below.
(b) Vendor shall deliver all Goods to the address specified in the Purchase Order (the "Delivery Point") during Buyer's normal business hours or as otherwise instructed by Buyer. Vendor shall pack all goods for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Vendor must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Vendor's risk of loss and expense.
(c) Vendor acknowledges that time is of the essence with respect to Vendor's obligations hereunder and that timely delivery of the Goods, including all performance dates, timetables, project milestones, and other requirements in this Agreement is paramount. If the delivery of the Goods is delayed, Buyer will be damaged thereby, and because it is difficult to definitely ascertain and prove the amount of such damages, Buyer shall be entitled to liquidated damages which will be calculated at the rate of zero point five percent (0.5%) of the Price (defined below) for the Goods in question for each day of delay; provided, however, that the aggregate liquidated damages amount shall not exceed twenty percent (20%) of the Price. Any unpaid liquidated damage amounts shall survive termination. If any delay in delivery continues three (3) months or more, Buyer may cancel or terminate the applicable Purchase Order upon written notice to Vendor, without prejudice to any rights, remedies, or claims Buyer may have, including without limitation any claim for liquidated damages.
6. Delivery Terms and Imports.
(a) Shipment by Vendor. Any Goods and other materials shipped by Vendor or Vendor's designee to Buyer or Buyer's designee in conjunction with Vendor's performance of its obligations under the Agreement will be delivered FCA Vendor's or Vendor's designee's facility (Incoterms 2020).
(b) Shipments by Buyer or Buyer's Designee. If any shipments of active pharmaceutical ingredients, active materials, raw materials, or other goods or materials from Buyer or Buyer's designee to Vendor or Vendor's designee is necessary under the Agreement, such shipment will be delivered DAP Vendor's or Vendor's designee's facility (Incoterms 2020).
(c) Imports.
(i) Vendor agrees to timely provide Buyer or Buyer's agent with all information necessary for Buyer to submit advance import information required by customs authorities.
(ii) The parties agree that any Goods and other materials shipped in conjunction with the performance of their respective obligations under the Agreement will be imported by the receiver of the shipment, or when materials are sourced by Vendor, resulting in an import or export, Vendor will act as the importer of record and will comply with all local customs and other import requirements, including (i) selection of customhouse brokers; (ii) filing all necessary import documentation, authorizations, and declarations; and (iii) payment of all fees for customhouse brokerage, customs duties and fees, and all other import-related fees and expenses.
7. Title and Risk of Loss.
Notwithstanding the Incoterm under Section 6(a), title and risk of loss pass to Buyer only upon Buyer's acceptance of the Goods at the Delivery Point. If Buyer rejects the Goods, title and risk of loss remain with, or revert to, Vendor upon notice of rejection.
8. Inspection and Rejection of Nonconforming Goods.
Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject or ask Vendor to repair all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety and receive refund for the rejected Goods (Rejected Good will be returned at Vendor's expense); (b) accept the Goods at a reasonably reduced price; or (c) require replacement of the rejected Goods (Rejected Good will be returned at Vendor's expense). If Buyer requires repair or replacement of the Goods, Vendor shall, at its expense, within thirty (30) days repair or replace the nonconforming or defective Goods and pay for all related expenses. If Vendor fails to timely repair or deliver replacement of the Goods, Buyer may replace them with goods from a third party and charge Vendor the cost thereof and terminate this Agreement for cause pursuant to Section 17. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Vendor's obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
9. Price.
The price of the Goods is the price stated in the Purchase Order (the "Price"). Unless otherwise specified in the Purchase Order, and notwithstanding the applicable Incoterm, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes, except to the extent required to be separately stated on Vendor's invoice pursuant to Section 15. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
10. Payment Terms.
Vendor shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Vendor within sixty (60) days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. With respect to the transaction fees for remittance of money, each Party shall be responsible for the fees in its country. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor under this Agreement. In the event of a payment dispute, Buyer shall deliver a written statement to Vendor on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. However, the absence of such notice after the due date for payment has elapsed shall constitute notice of a dispute. Notwithstanding disputes on other items, undisputed amounts shall be paid within the period set forth in this Section 10. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing its obligations under this Agreement notwithstanding any such dispute.
11. Warranties.
(a) Vendor warrants to Buyer that until expiry of the warranty period (which shall be for a period lasting at least twenty four (24) months from receipt of the Goods by Buyer) for the Goods, or, if there is no explicit warranty period, for a period equating to the shelf life (which shall be for a period lasting at least twenty four (24) months from receipt of the Goods by Buyer) of the Goods, all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications specified in Purchase Order; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.
(b) The warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods with the foregoing warranties.
12. Liability Insurance.
Vendor shall maintain liability insurance policies covering all activities related to any Purchase Order and as otherwise required under Applicable Law (including workers' compensation coverage). Without limiting the generality of the foregoing, Vendor shall maintain commercial general liability insurance, including contractual liability and products/completed operations coverage, with minimum limits of $1,000,000 per occurrence and $3,000,000 aggregate. All such insurance shall be primary and non-contributory with respect to any other available insurance maintained by Buyer. Vendor represents and warrants that it shall promptly file with its insurance carriers all claims arising out of or relating to this Purchase Order.
13. General Indemnification.
Vendor shall defend, indemnify, and hold harmless Buyer, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods purchased from Vendor or Vendor's negligence, willful misconduct or breach of the Terms. Vendor shall not enter into any settlement without Buyer's prior written consent.
14. Intellectual Property Indemnification.
Vendor shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Vendor enter into any settlement without Buyer's or Indemnitee's prior written consent.
15. Taxes and Duties.
Any taxes and duties levied in Vendor's country shall be borne solely by Vendor. Notwithstanding any other provision of this Agreement, the Price is firm, fixed, and inclusive of all costs, fees, duties, tariffs, and taxes applicable as of the date of the applicable Purchase Order, except for sales, use, or similar transaction taxes that are required by applicable law to be separately stated on Vendor's invoice.
Vendor acknowledges and agrees that no increase in the Price shall be effective or payable by Buyer as a result of the imposition, enactment, or effectiveness of any new or additional tariffs, duties, taxes, fees, or similar governmental charges (including, without limitation, any tariffs imposed by the United States government or any agency thereof, whether pursuant to executive order, legislation, or other governmental action) after the date of the applicable Purchase Order, whether specific to the Goods or generally applicable to imports. Vendor shall bear all risk and responsibility for any such tariffs, duties, taxes, or charges, and Buyer shall have no obligation to pay, reimburse, or otherwise compensate Vendor for any resulting increase in costs or expenses. Any attempt by Vendor to increase the Price or seek additional compensation on account of such charges shall be null and void and shall constitute a material breach of this Agreement.
Vendor shall be solely responsible for determining whether it has physical or economic nexus in any applicable jurisdiction and for complying with all related registration, collection, reporting, and remittance obligations. Vendor shall not charge sales, use, or similar transaction taxes unless legally required under applicable law. If Buyer provides a valid direct payment permit, exemption certificate (including, without limitation, Form ST-4), or other documentation establishing exemption, Vendor shall not charge such taxes. Vendor shall indemnify, defend, and hold Buyer harmless from and against any taxes, interest, penalties, or assessments arising from Vendor's failure to properly determine nexus, collect, remit, or refrain from collecting transaction taxes in accordance with applicable law. Buyer shall be responsible for use tax solely to the extent required by applicable law and only in jurisdictions where Vendor has no legal obligation to collect sales tax.
This clause shall survive the termination or expiration of this Agreement and shall apply to all Goods delivered under any Purchase Order issued by Buyer.
16. Compliance with Law.
Vendor shall comply with all Applicable Laws in carrying out its obligations under this Agreement. Vendor shall maintain all licenses, permissions, authorizations, consents, and permits required to perform its obligations under this Agreement. Vendor shall comply with all export, import, and customs laws and requirements applicable to any items supplied under this Agreement and any related shipments. Vendor is responsible for obtaining and maintaining any government approvals required for exporting or importing such items.
Vendor further represents and warrants that neither it nor any of its personnel has been (a) debarred by the U.S. Food and Drug Administration under the Generic Drug Enforcement Act or (b) excluded by the U.S. Department of Health and Human Services Office of Inspector General, or any other governmental authority, from participation in any government-funded health care program, including Medicare or Medicaid. Vendor shall ensure that no individual who has been debarred or excluded as described above performs any work or participates in any activity related to Vendor's obligations under the Agreement or any Purchase Order. Vendor shall immediately notify Buyer in writing (with a copy to Buyer's legal counsel) if Vendor, any of its personnel, or any individual performing work on its behalf becomes subject to any actual or threatened debarment, exclusion, or similar action.
For clarity, "Applicable Laws" means all statutes, laws, treaties, rules, regulations, ordinances, codes, permits, licenses, directives, judgments, decrees, injunctions, writs, orders, subpoenas, and other requirements issued by any governmental authority that apply to this Agreement or to any activity carried out by either Party in connection with this Agreement. Applicable Laws include, without limitation, the following to the extent applicable:
(i) the Federal Food, Drug and Cosmetic Act;
(ii) the Federal Anti-Kickback Statute, the False Claims Act, and similar state fraud and abuse laws;
(iii) the Federal Acquisition Regulation and applicable Department of Labor and OFCCP requirements, including 29 C.F.R. Part 471 and 41 C.F.R. §§ 60-1.4, 60-1.7, 60-1.35(c), 60-300.5(a), and 60-741.5(a);
(iv) the Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h;
(v) U.S. Securities and Exchange Commission rules, including 17 C.F.R. Parts 240 and 249b and 77 Fed. Reg. 56274;
(vi) U.S. export-control and sanctions laws, including the Export Administration Regulations (15 C.F.R. Parts 730 and 734), the Foreign Trade Regulations (15 C.F.R. Part 30), and 31 C.F.R. Chapter V (including Part 501);
(vii) European Union trade-sanctions and export-control laws, including Council Regulation (EC) No. 428/2009 (as amended);
(viii) the Generic Drug Enforcement Act;
(ix) the Economic Espionage Act (18 U.S.C. §§ 1831–1839) and applicable state trade-secret laws, including the Indiana Uniform Trade Secrets Act; and
(x) federal and state pay-equity and pay-transparency laws.
17. Termination.
Buyer shall have the right to terminate the Agreement at any time by provision of thirty (30) days' written notice to Vendor. In addition to any remedies that may be provided under the Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Goods or the Vendor's delivery of the Goods, if Vendor has not performed or complied with any of the Terms, in whole or in part provided, however, that for any breach capable of cure, Buyer may terminate only if Vendor fails to cure such breach within fifteen (15) days after receiving written notice thereof from Buyer. If the Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Vendor. If Buyer terminates the Agreement for any reason, Vendor's sole and exclusive remedy is payment for the Goods received by Buyer prior to the termination.
18. Waiver.
No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Confidential Information.
All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Vendor shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to a Party at the time of disclosure (as evidenced by contemporaneous documentation); (c) rightfully obtained by a Party on a non-confidential basis from a third party; or (d) developed independently without use of Confidential Information of the other Party (as evidenced by contemporaneous documentation).
For clarity, nothing in this Agreement limits or restricts any individual's legally protected right to file a charge or complaint with the U.S. Securities and Exchange Commission ("SEC"), provide information to the SEC without notice to or authorization from Buyer, participate in or cooperate with any SEC investigation or proceeding, or receive any award for information provided to the SEC.
20. Assignment.
Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Vendor's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
21. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
22. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
23. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be exclusively and finally resolved by arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules then in effect (the "Rules"), which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one (1), and the seat of arbitration shall be New Jersey, United States of America. The arbitral proceedings shall be conducted in the English language. The judgment rendered by the arbitrator shall be final and binding and may be entered in any court of competent jurisdiction. For clarity, the AAA Rules for Emergency Measures of Protection are incorporated by reference and shall apply to this arbitration; provided, however, that nothing in this Agreement shall be deemed to limit or waive either party's right to seek temporary or preliminary injunctive relief from any court of competent jurisdiction in aid of arbitration. The arbitration proceedings, including any information, documents, or materials exchanged or presented during the arbitration, shall be confidential and shall not be disclosed except to the extent necessary to enforce the award or as required by law.
24. Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
25. Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. Survival.
Provisions of these Terms which by their nature should apply beyond the term of the Agreement will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Warranties, General Indemnification, Intellectual Property Indemnification, Taxes and Duties, Compliance with Law, Confidential Information, Governing Law and Jurisdiction and Survival.
27. Entire Agreement.
The Agreement constitutes the entire agreement between Buyer and Vendor, and there are no terms, conditions, or provisions whether oral or written, between the Parties hereto, and the Agreement supersedes any and all oral or written understandings between the Parties hereto relating to the Goods.
28. Amendment and Modification.
The Terms may only be amended or modified in a writing stating specifically that it amends the Terms and is signed by an authorized representative of each Party.
29.
For the avoidance of doubt, Sections 31 through 37 below apply solely to on-premise software, information technology hardware, and related services. Any cloud-hosted software-as-a-service (SaaS) provided on a subscription basis is excluded from these sections and is governed exclusively by Buyer's General Terms and Conditions for Software-as-a-Service, available at [https://www.celltrionbranchburg.com/saas-terms/], as referenced in Section 3 above. The SaaS Terms shall bind only those Vendors that have entered into a Purchase Order for SaaS services and only with respect to such SaaS services.
IF THIS ORDER INVOLVES SOFTWARE, INFORMATION TECHNOLOGY HARDWARE, OR RELATED SERVICES, THE FOLLOWING TERMS APPLY IN ADDITION TO THE TERMS ABOVE:
30. License.
Vendor grants Buyer a non-exclusive, non-transferable, fully paid, worldwide, perpetual license to use the software listed in the Purchase Order. Unless specified otherwise on the applicable Purchase Order, the License shall be an enterprise license for all applicable CPUs and access points, and available for use by Buyer, its affiliated companies, third party service providers, and other necessary parties. Any usage limits must be stated in the Purchase Order to be enforceable. Shrink-wrap and click-through terms do not apply unless Buyer agrees in writing.
31. Use of Software and Documentation.
Buyer may install, copy, back up, and use the Software and documentation as needed for its business, on any Buyer systems or locations, including use by employees, affiliates, contractors, and service providers.
32. Additional Warranties.
Vendor represents and warrants that for 12 months after delivery (or such longer period stated in the Purchase Order), the Goods, Software, hardware, and related services will perform in accordance with Vendor's documentation and specifications. Physical Goods will be free of defects, and all hardware will include the manufacturer's full warranty. If purchased, maintenance will begin at installation, include all updates and upgrades at no additional cost, and provide support for the current and immediately prior version for at least two years (or such longer period stated in the Purchase Order). The Goods and Software must contain no hidden, restrictive, or harmful code, and the presence of any such code will constitute an immediate default.
33.
The Uniform Computer Information Transactions Act (UCITA) does not apply to this Purchase Order.
34.
Vendor may not use or incorporate Buyer data or materials for any purpose other than performing under the Purchase Order.
35.
Vendor shall ensure all delivered software, web content, and digital products comply with applicable accessibility laws and WCAG 2.1 Level AA (or the then-current equivalent) and will correct accessibility issues at no additional cost.
36. Termination.
If Buyer terminates the agreement due to Vendor's breach, Buyer may terminate the license and/or maintenance and will receive a full refund of all license fees and a pro-rated refund of any prepaid maintenance. Upon Vendor's written request, Buyer will confirm destruction of on-premise copies of the terminated Software.
IF THIS ORDER INVOLVES EQUIPMENT OR RELATED SERVICES, THE FOLLOWING TERMS APPLY IN ADDITION TO THE TERMS ABOVE:
37. Additional Definitions:
a. "Consumable" means a part or component expected to require replacement before the end of the Equipment's useful life.
b. "Equipment" means the equipment specified in the Purchase Order.
c. "Spare" means a part or component intended to replace one that fails prematurely or reaches the end of its intended operating life.
38. Additional Inspection and Testing
a. Factory Acceptance Testing (FAT). Before shipment, Vendor will conduct FAT and provide a report showing the Equipment meets required performance. Buyer may witness FAT or conduct its own inspections with reasonable notice.
b. Inspection at delivery. Buyer may inspect or test the Equipment upon delivery and may accept, reject, or require adjustments. Buyer's receipt or payment does not constitute acceptance. Rejected Equipment will be returned at Vendor's expense.
c. Regulatory testing. Vendor will perform any government-required testing at its own cost.
d. Site Acceptance Testing (SAT). Vendor will conduct SAT at the installation site and provide a report. Buyer may witness or perform its own testing.
e. Commissioning and training. Vendor will complete commissioning and provide training consistent with industry best practices or as required in the Purchase Order.
f. Additional testing. Additional tests required due to Vendor's failure are at Vendor's cost; Tests requested by Buyer that are outside the agreed scope will be at Buyer's cost, unless otherwise agreed in writing.
39. Additional Warranties.
a. Warranty Coverage. Vendor represents and warrants that it has reviewed Buyer's requirements and can meet them; the Equipment will conform to Buyer's specifications and any Vendor-provided descriptions; the Equipment will be merchantable, free from defects, and fit for its intended purpose for 24 months after successful SAT (or such longer period stated in the Purchase Order); and no materials known to be unsafe or unsuitable are used.
b. Warranty on Replacements. All repaired or replaced Equipment, parts, or components—including any Spares or Consumables—will be subject to the same warranty as the original Equipment, and the warranty period will restart upon completion of the repair or replacement.
c. Remedies. If the Equipment fails to meet the warranties, Buyer may require Vendor to promptly correct the defect(s) at Vendor's expense, or Buyer may correct the defect(s) itself or through a third party at Vendor's expense.
40.
Vendor will ensure that sufficient Spares and Consumables for the Equipment are available for purchase at all times. Vendor will advise Buyer regarding appropriate Spares for replacing failed components and the Consumables required for routine or preventive maintenance. Buyer may obtain Spares and Consumables from Vendor or from any third party.