Terms and Conditions of Purchase

GENERAL TERMS AND CONDITIONS OF PURCHASE

1. Applicability. These Terms and Conditions of Purchase (“Terms”) and the accompanying Purchase Order (together, the “Agreement”) govern the relationship between Julabo USA, Inc. (“Buyer”) and the party identified on the Purchase Order (“Seller”), whereby Seller agrees to furnish the materials and/or products and/or services (collectively, the “Deliverables”) identified on the Purchase Order. Seller’s commencement of performance, acceptance of any payment or acceptance of the Purchase Order shall constitute Seller’s unqualified agreement to be bound by these Terms and the Purchase Order. Any terms or conditions proposed by Seller inconsistent with or in addition to this Agreement shall be void and of no effect unless specifically agreed to by Buyer in writing.
2. Shipping Terms. Unless otherwise stated in the Purchase Order or other document signed by Buyer, all prices are [INCOTERMS 2020] FOB Seller’s Facility specified in the Purchase Order. Seller shall be responsible for ensuring the proper packaging of goods hereunder. No charges will be allowed for packing, crating, freight, local cartage, and/or any other services unless specified in the Purchase Order. Title and risk of loss for the Deliverables shall pass to Buyer when the Deliverables have been delivered to Buyer.
3. Delivery and Performance. Time is of the essence and failure to deliver and perform in accordance with the delivery schedule under the Purchase Order shall constitute a material breach of the Agreement. Seller shall notify Buyer in writing immediately of any actual or potential delay to the performance of the Purchase Order. Seller shall be responsible for all direct, consequential, and incidental damages incurred by Buyer as a result of Seller’s failure to meet the delivery dates, including without limitation the reimbursement of any costs, penalties, and damages owed by Buyer to its customers for late delivery or other performance, and the cost of obtaining replacement Deliverables from an alternate source.
4. Warranty. Seller warrants that the Deliverables, unless specifically stated otherwise in the Purchase Order, shall, for a period of twenty-four (24) months from the date of delivery, be free from defects in workmanship, materials, and design and be in accordance with all the requirements of the Purchase Order or other specifications provided by Buyer. Seller further warrants that the performance of work and services shall conform with the requirements of the Purchase Order and to industry standards. These warranties shall survive inspection, testing, acceptance and payment.
5. Intellectual Property Rights. Seller represents and warrants that Seller has valid title to all intellectual property necessary for the due fulfillment of the Agreement and that the Deliverables furnished by Seller to Buyer do not infringe upon any intellectual property of any third party. Buyer and its direct and indirect customers are hereby granted a fully paid, worldwide, perpetual, non-exclusive, transferable, royalty-free and unlimited license to use Seller’s intellectual property (or that of any third party incorporated into the goods or services furnished hereunder) to the extent such use is required or desirable when Buyer and/or its direct and indirect customers make use of the goods or services furnished hereunder. Seller assigns to Buyer all of its right, title and interest in and to all intellectual property to the extent such intellectual property is created for Buyer under the Agreement and Buyer may make subsequent changes to any intellectual property delivered thereunder. If a claim is made against Buyer alleging infringement of any intellectual property or an action is instituted, or if an injunction is obtained due to a breach of the warranties set forth herein, Seller shall, without prejudice to any other right or remedy, at its own expense promptly: (i) procure for Buyer (and its customers) the right to continue to use the relevant intellectual property according to the Agreement; or (ii) replace the Deliverables with non-infringing Deliverables which conform to Buyer’s specifications (or in lieu of replacement, if requested by Buyer, Seller will refund the purchase price of such Deliverables).
6. Inspection. All Deliverables shall be subject to inspection and testing at reasonable times and places by Buyer or Buyer’s customers before, during and after performance and delivery. Buyer may require (at Buyer’s option) Seller to repair, replace or reimburse the purchase price of rejected Deliverables or Buyer may accept any Deliverables and rework any such Deliverables not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or re-inspection by Buyer shall be at Seller’s expense. Buyer’s acceptance of Deliverables shall not be deemed to impair or diminish Buyer’s rights or be final or binding on Buyer if defects, fraud, or misrepresentation on the part of Seller exists.
7. Termination.

(a) Buyer may, by written notice, terminate a Purchase Order for convenience and without cause, in whole or in part, at any time, and such termination shall not constitute default. In the event of partial termination, Seller is not excused from performance of the non-terminated portion of    the Purchase Order. In the event of termination for convenience, Buyer shall have the right to return any goods to Seller for a full refund without any restocking or cancellation fees.

(b) Buyer may, by written notice, terminate a Purchase Order in whole or in part at any time for breach of the Agreement, including: (i) failure to deliver the Deliverables within the time specified by a Purchase Order or any written extension; (ii) failure to make progress so as to endanger performance of a Purchase Order; (iii) failure to provide adequate assurance of future performance; or (iv) Seller’s insolvency. In the event of partial termination, Seller is not excused from performance of the non-terminated portion of the Purchase Order.

1. Force Majeure. Except for a default of Seller’s suppliers or subcontractors at any tier for which Seller shall be responsible, neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence. Such causes include, but are not limited to, acts of God or of public enemy, acts of government in its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance of a Purchase Order is hindered, delayed or adversely affected by causes of the type described above (“Force Majeure”), then the party whose performance is so affected shall so notify the other party’s authorized representative in writing and, at Buyer’s option, the Purchase Order shall be completed with such adjustments to delivery schedule as are reasonably required by the existence of Force Majeure or the Purchase Order may be terminated for convenience.
2. 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 Seller, 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 the Agreement is confidential and may not be disclosed or copied unless authorized in advance by Buyer in writing (or if disclosure is required pursuant to applicably law). Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief and damages for any violation of this Section.
3. Indemnification. Seller shall be liable for and hold Buyer (and its affiliates, representatives and agents) harmless from any loss, damage, or expense whatsoever (including reasonable attorneys’ fees) that Buyer may suffer arising from: (i) a breach of any representation, warranty or covenant contained in the Agreement; or (ii) a claim that a defect in the design or manufacture of the Deliverables, including defects in material and/or manufacturing processes or techniques, has caused personal injury (including death) or loss of, destruction or damage to property.
4. Remedies. Except as otherwise provided herein, the rights and remedies of Buyer hereunder shall be in addition to any other rights and remedies available at law or in equity (including any remedies specified in the Uniform Commercial Code). In addition, in the event Buyer terminates a Purchase Order for default, Seller shall be liable for Buyer’s re-procurement costs. Buyer shall be entitled to set off any amount owing at any time from Seller (or any of its affiliated companies) to Buyer, against any amount payable at any time by Buyer (or any of its affiliated companies) to Seller.
5. Changes. Buyer shall have the right by written notice to make changes from time to time to any Purchase Order (as opposed to the partial termination of a Purchase Order). If such changes cause an increase or decrease in the cost of performance of a Purchase Order or in the time required for its performance, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this Section must be asserted in writing within twenty (20) days from the date of receipt by Seller of notification of the changes. However, nothing herein shall excuse Seller from proceeding with the Purchase Order as changed pending resolution of the claim.
6. Compliance with Laws. Seller warrants that the Deliverables shall be manufactured, sold, used and rendered in compliance with all relevant federal, state, local law, orders, rules, ordinances and regulations. Seller shall obtain and maintain all registrations, licenses and permits required incident to its performance hereunder.
7. Limitation of Liability. In no event shall Buyer be liable for any special, indirect or consequential damages. Buyer’s liability hereunder shall be limited to the purchase price set forth in the applicable Purchase Order.
8. Insurance. Seller shall maintain adequate (to Buyer’s reasonable satisfaction) insurance coverage with a reputable insurance company for the duration of its performance of its obligations under this Agreement (and for a reasonable duration thereafter, to cover claims related to the Deliverables). Upon Buyer’s request, Seller shall, within reasonable time, furnish to Buyer original certificates and additional insurance endorsements evidencing the specified insurance coverage and confirming that the premiums have been duly paid.
9. Export Compliance. Seller agrees to abide by all U.S. export, “deemed” export, and re-export control laws and regulations. Accordingly, Seller will not export or re-export, directly or indirectly, any of Buyer’s specifications, technology, intellectual property, goods or services (including any equipment, materials, component or product or technical data) to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from the U.S. Department of Commerce.
10. Waiver. Seller waives any lien or other rights that Seller might otherwise have on or in any Deliverables provided hereunder (or any other property of Buyer). Seller agrees that Seller and all of its subcontractors or suppliers, or their respective employees will execute any additional waiver that may be requested by Buyer, and further agrees that neither Seller, nor any of its subcontractors or suppliers, or their respective employees, will assert any interest in or make any filings including any construction or mechanic’s liens or other filings in respect of any part of the Deliverables. Seller agrees to maintain policies that are adequate to ensure that all of its subcontractors and suppliers comply with Sections 16 and 17 hereof.
11. Prices. The purchase price identified on the Purchase Order is not subject to increase for any reason or cause unless specifically agreed to by Buyer in writing. Seller warrants that the purchase price for the Deliverables delivered hereunder is, and shall remain, not less favorable to Buyer than the prices currently extended to any other customer of Seller for the same or substantially similar deliverables in the same or substantially similar quantities and delivery requirements.
12. Service and Replacement Parts. Seller guarantees the availability of all necessary service and replacement parts for the goods for a period of ten (10) years following the warranty period.
13. Payment and Billing. Seller will invoice Buyer for all Deliverables within thirty (30) days of delivery. Except as otherwise provided in the Purchase Order, Buyer will pay Seller’s charges thirty (30) days after receipt of each invoice; provided, however, that: (i) Buyer may withhold payment of any invoiced charges that Buyer disputes in good faith; (ii) Buyer’s payment of any charges shall not be deemed an approval of such charges or acceptance of non-conforming Deliverables; and (iii) Buyer’s payment of charges shall not relieve Seller of any of its warranties or other obligations under the Agreement.
14. Survival. Regardless of the circumstances of termination or expiration of the Agreement, or portion thereof, the provisions of Sections 4 (“Warranty”), 5 (“Intellectual Property Rights”), 9 (“Confidential Information”), 10 (“Indemnification”), 13 (“Compliance with Laws”), 14 (“Limitation of Liability”) and 16 (“Export Compliance”) will survive the termination or expiration of the Agreement and continue according to their terms. All licenses and sublicenses granted to Seller (or its customers) pursuant the Agreement shall also survive any expiration or termination of the Agreement.
15. ISO Standards. Seller, upon Buyer’s request, shall take all commercially reasonable steps (including supplying Buyer with any requested information) necessary for Buyer to comply with any applicable standards or rules promulgated by the International Organization for Standardization (“ISO”) or similar body.
16. Miscellaneous.

• Payment will be in United States dollars unless otherwise agreed to in a Purchase Order. Unless the Purchase Order specifies otherwise, and notwithstanding anything herein to the contrary, Seller is liable for and shall pay all taxes, customs duties, tariffs and other charges imposed on or measured by the Purchase Order.
• The Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania, USA, without regard for its conflict of laws or principals. The provisions of the “United Nations Convention on Contracts for International Sale of Goods” shall not apply to the Agreement, including any amendments or changes thereto.
• Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller (whether by operation of law or otherwise).
• The relationship between the parties is that of independent contractors. Nothing contained in the 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.
• Any lawsuit, action or proceeding arising out of or relating to the Agreement shall be instituted and conducted only in the Court of Common Pleas of Lehigh County, Commonwealth of Pennsylvania, or the United States District Court for the Eastern District of Pennsylvania.  Each party irrevocably submits to the exclusive jurisdiction, and to venue in the aforementioned courts waiving any objection of any kind, including but not limited to a forum non conveniens.
• All notices, request, 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 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), facsimile, electronic mail or certified mail (return receipt requested, postage prepaid).
• If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
• The Agreement constitutes the entire agreement between the parties with respect to its subject matter and merges, integrates and supersedes all prior and contemporaneous agreements and understandings between the parties, whether written or oral, concerning its subject matter. The Agreement may be amended or modified solely in a writing signed by a duly authorized representative of each party. Notwithstanding the forgoing, Buyer may, upon thirty (30) days prior written notice to Seller (“Notice of Amendment”), unilaterally amend or modify the Terms. Seller shall have five (5) days from date of a Notice of Amendment to provide Buyer with written notice that Seller does not agree to such modifications and has elected to terminate the Agreement (a “Termination Notice”). If Seller does not timely provide Buyer with such Termination Notice, then Seller shall be deemed to have agreed and consented to Buyer’s modification of the Terms as set forth in the Notice of Amendment.

(06.01.2022)