Purchase Order Terms & Conditions

 
As used herein, "Seller" includes Seller, its subsidiaries and affiliates; "Prime" includes Prime Therapeutics LLC and its subsidiaries and affiliates. Seller and Prime Therapeutics LLC hereby agree as follows:
 
1. WARRANTY. All materials, services or equipment sold and delivered to Prime under this purchase order (the #Product”) shall be in full conformity of Prime’s specifications set forth or referred to on the face hereof or, if not so set forth or referred to, shall be in conformity with Seller’s published specifications and samples provided to Prime. All Products sold and delivered to Prime will be new, fit and sufficient for the use intended by Prime 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 Prime and shall be in addition to any warranty expressly furnished or represented to Prime by Seller. Seller will indemnify and hold harmless Prime and its customers from any against any and all costs (including reasonable attorneys’ fees incurred), expenses, damages, losses, liabilities, penalties, judgments attributable to any Products delivered hereunder that fail to conform to the warranty set forth herein or which is otherwise implied by applicable law.
 
2. DELIVERY. Time is of the essence. Unless otherwise specified on the face of this purchase order, terms of delivery of the Products are F.O.B. destination with freight prepaid. Prime reserves the right to return, shipping charges collect, all Products received in advance of the delivery schedule. Prime’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
 
3. PURCHASE PRICE. The purchase order total price and unit prices shall be as specified on this purchase order. They shall not include sales and use tax for which an exemption is applicable. If purchase price is omitted, this order is to be filled at the lower of (1) the price last quoted or charged, or (2) the lowest prevailing market price.
 
4. PAYMENT. As full consideration for the performance of and delivery of the Products to Prime as provided herein, Prime shall pay Seller: (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Seller's quoted price on date of shipment (for Products), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller's invoice. Payment is made when Prime’s check is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Products prior to receipt by Prime of Products conforming to the purchase order shall be borne by Seller. Seller shall invoice Prime for all Products delivered and all Services actually performed. Each invoice submitted by Seller must be provided to Prime within ninety (90) days of completion of the Services or delivery of Products and must reference the applicable purchase order, and Prime reserves the right to return all incorrect invoices. Prime will receive a 2% discount of the invoiced amount for all invoices that are submitted more than ninety (90) days after completion of the Services or delivery of the Products. Unless otherwise specified on the face of a purchase order, Prime shall pay the invoiced amount within thirty (30) days after receipt of a correct invoice. Invoices should be sent to Prime at the following address: Prime Therapeutics, Attn: Accounts Payable, P.O. Box 64812, St. Paul, MN 55164-0812
 
5. INSPECTION. All Products delivered hereunder shall be subject to final inspection and acceptance by Prime. Acceptance of any Products shall not alter or affect the warranties of Seller referenced above. If Products tendered do not wholly conform to the provisions hereof, Prime shall have the right to reject such Products. Nonconforming Products will be returned to Seller freight collect and risk of loss will pass to Seller upon Prime's delivery to the common carrier.
 
6. INDEPENDENT CONTRACTOR. Nothing in this purchase order is intended to, or does, create any joint venture, partnership, agency or similar relationship between Prime and Seller, other than a buyer and seller relationship. Seller shall not be, and is not authorized to represent itself as, an agent or representative of Prime for any purposes.
 
7. SELLER RESPONSIBLE FOR TAXES AND RECORDS. Prime shall have no responsibility to pay or withhold from any payment to Seller under this purchase order, any federal, state or local taxes or fees. Prime will regularly report amounts paid to Seller by filing Form 1099-MISC with the Internal Revenue Service.
 
8. INSURANCE. Seller shall be solely responsible for maintaining and requiring each of its subcontractors to maintain adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's trades or businesses, whichever affords greater coverage. Upon request, Seller shall provide Prime with certificates of insurance or evidence of coverage before commencing performance under this purchase order. Seller shall provide adequate coverage for any Prime property under the care, custody or control of Seller or Seller's agents.
 
9. INDEMNITY FOR INJURY TO PERSONS OR PROPERTY. Seller shall indemnify, hold harmless, and at Prime's request, defend Prime, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Products provided under this purchase order, including, without limitation, any claim based on the death or bodily injury to any person, or destruction or damage to property.
 
10. CONFIDENTIALITY. All data and other information obtained by Seller from Prime in connection with this purchase order shall be held in strict confidence by Seller and used solely for the purpose originally intended in connection with this purchase order. Seller shall treat such data and information with the same degree of confidentiality that it uses to protect its own such data or information (but not less than a reasonable standard of care) and shall ensure that each of its employees and subcontractors to whom such data or information is known is bound to the confidentiality of such data and information by separate agreement with Seller or by operation of law.
 
11. CANCELLATION/TERMINATION. Prime may cancel this order or any part thereof, or terminate this purchase order upon written notice to Seller. In the event of such cancellation or termination, Prime shall pay Seller for the portion of the Services satisfactorily performed and those conforming Products delivered to Prime through the date of termination, less appropriate offsets, including any additional costs to be incurred by Prime in completing the Services.
 
12. REMEDIES. If Seller breaches this purchase order, Prime shall have all remedies available by law and at equity.
 
13. WAIVER OF BREACH. Waiver or forbearance of, or inaction by Prime on a breach by Seller of any term shall not be deemed a waiver of future compliance with all terms, and all such terms shall remain in full force and effect as to future performance.
 
14. FORCE MAJEURE. Neither Prime nor Seller shall be held responsible for failure to perform caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation.
 
15. SEVERABILITY. If any provision of this purchase order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
16. ASSIGNMENT. Seller may not assign this purchase order or any of its rights or obligations under this purchase order, without the prior written consent of Prime. Any assignment or transfer without such written consent shall be null and void. Seller is not permitted to engage any subcontractors in connection with the performance of its obligations to Prime hereunder without the prior consent of Prime.
 
17. NOTICES. Except for purchase orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Prime representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
 
18. GOVERNING LAW. This purchase order shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Minnesota, excluding its conflict of law rules.
 
19. ENTIRE AGREEMENT; MODIFICATION. In the absence of a master service agreement, the terms of which may supersede this purchase order, this purchase order is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This purchase order may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Prime, signed by the parties. Notwithstanding the foregoing, if Contractor performs any Services for Prime without first entering into an applicable Service Agreement, MSA, or SOW, Prime’s standard terms and conditions shall still govern any such Services provided.
 
20. COMPLIANCE WITH LAWS. Seller shall comply fully with all applicable federal, state and local laws in the performance of this purchase order including, but not limited to, all applicable employment, tax, export control and environmental laws. Prime is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment and otherwise treat qualified individuals without discrimination based on their status as a protected veteran or individual with a disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
 
21. INJUNCTIVE RELIEF. Seller's breach of any of the promises contained in this purchase order may result in irreparable and continuing damage to Prime for which there will be no adequate remedy at law and, in the event of such breach, Prime will be entitled to seek injunctive relief, or a decree of specific performance. Seller shall reimburse Prime for any legal fees and costs associated with enforcing this or any other term or condition of this purchase order.