CONTRACT TERMS AND CHOICE OF LAW
This purchase order is intended as an offer to purchase the materials or services specified on the face hereof and upon the terms and conditions stated herein, and any reference to the Seller’s quotation or similar form is solely for the purpose of describing the materials. This offer expressly limits acceptance to the terms and conditions stated herein, and none of the terms and conditions stated herein may be added to, modified, superseded, or otherwise altered except by writing, signed by Buyer. Each shipment received by Buyer from Seller shall be deemed to be subject only to the terms and conditions stated herein, notwithstanding any terms and conditions that may appear in Seller’s quotation, acknowledgment, invoice or other form, and notwithstanding Buyer’s acceptance and/or payment for the materials. This Purchase Order shall be construed and enforced in accordance with laws of the State of Wisconsin.
Clear title to the materials sold hereunder shall pass to Buyer with payment of all money due under the agreed purchase contract. Notwithstanding the foregoing, if Seller ceases to conduct its normal business operations, including, without limitation, failing to meet its obligations as they mature, or if any bankruptcy or insolvency proceeding is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment of substantially all the assets of Seller for the benefit of creditors is made by Seller, then Seller irrevocably grants, assigns and transfers all right, title and interest in and to all drawings, illustrations, pictures, descriptions, plans and characteristics (collectively, the “Plans”) pertaining to the materials and services specified on the face hereof, including, without limitation, as may be reasonably necessary for Buyer to use the Plans internally, or engage a third party to use the Plans, to complete the work and deliver the materials and services specified on the face hereof. At Buyer’s request, Seller shall execute and deliver any documents and instruments reasonably necessary to affect the transfer of rights provided for in the immediately preceding sentence.
Upon request from Buyer, Seller shall furnish to Buyer an insurance carrier’s certificate showing that Seller has adequate Workmen’s Compensation, Public Liability and Property Damage insurance coverage. Said certificate shall set forth the amount of coverage, policy number and date of expiration. Seller shall maintain 1) Commercial General Liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) annual aggregate covering any and all damage to property or injury to or death of persons arising from or out of installation and/or operation of any materials sold hereunder and/or performance of any work hereunder; 2) Excess or Umbrella Liability insurance extending over the required Commercial General Liability and Employer’s Liability in an amount not less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; 3) Worker’s Compensation insurance as provided by statute and Employer’s liability insurance of at least one hundred thousand dollars ($100,000) per employee. Seller shall furnish a certificate of coverage naming Buyer as an additional insured prior to award of contract and warrant that the same levels of coverage be maintained annually. Seller’s insurance coverage’s will apply on a primary and non-contributory basis to those of Buyer. Seller’s General Liability policy will include a waiver of subrogation in favor of Buyer.
Seller expressly warrants that all of the materials sold hereunder: (a) will conform to any and all final specifications, drawings, plans, instructions, samples or other descriptions, whether express or implied, furnished by Buyer and agreed by Seller; (b) will be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose for which Buyer intends to use such materials, such materials will be fit for such particular purpose; (c) will be new and merchantable; and (d) will be of good material and workmanship and free from defects, whether latent or patent. Seller further warrants to Buyer that Seller has, or will have at the time of delivery hereunder, good and marketable title to such materials, free and clear of all liens, privileges, encumbrances, claims and other security interests. The foregoing warranties shall survive Buyer’s inspection, acceptance, use and subsequent dispossession or sale of the materials sold hereunder. Seller hereby extends to Buyer any and all warranties received from Seller’s suppliers and agrees to enforce such warranties on Buyer’s behalf. All of Seller’s warranties shall run to Buyer and its successors, assigns and users of materials sold hereunder. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope herein or otherwise provided by Seller to Buyer or otherwise provided by law, including, without limitation, any and all warranties provided in the Uniform Commercial Code. Seller shall compensate, indemnify and hold Buyer harmless from and against any and all damages, including incidental and consequential damages, claims, liabilities and expenses (including court costs and attorneys’ fees) arising out of or relating to or resulting in any way from a breach of any warranty herein, whether express or implied, or from any act or omission of Seller, its officers, agents, employees or subcontractors.
Seller shall indemnify and hold Buyer harmless from any and all liability, losses, damage, claims or courses of action, and expenses connected therewith (including reasonable attorneys’ fees and legal expenses) caused or asserted to have been caused, directly or indirectly, by any infringement or alleged infringement of any United States or foreign patent, or other proprietary rights of any third party, based on Buyer’s ownership or proper use of the materials delivered hereunder, in accordance with all requirements provided by Seller to Buyer. In the event Buyer is enjoined from using any part of the materials delivered hereunder due to the alleged infringement of any patent granted by the United States or foreign government, or other proprietary rights of any third party, Seller shall, at Buyer’s election in its sole discretion, either: (1) purchase for Buyer the right to continue Buyer’s use of the subject materials; (2) modify the subject materials so to that they are no longer infringing, without loss or functionality; or (3) replace the subject materials with materials of equal or better quality and the same functionality that is not infringing.
DELIVERY AND RISK OF LOSS
Unless otherwise stated on the face hereof, all materials are to be furnished F.O.B. point of destination, and no charges will be allowed for freight, transportation, crating, handling, demurrage, or for any other matter relating to the delivery of the materials to Buyer unless authorized in writing by Buyer. The entire risk of loss, injury, or destruction of the materials, regardless of the F.O.B. point and cause therefore, shall be borne by the Seller until the materials are delivered to and accepted by Buyer. All deliveries are to be tagged with the purchase order number that appears on the face hereof, and no partial deliveries shall be permitted without prior written authority of Buyer.
TIME OF DELIVERY
Time is of the essence with respect to the delivery date specified on the face hereof. Seller agrees to compensate Buyer for any damages which Buyer may incur as a result of Seller’s failure to deliver on time. In addition, Buyer reserves the right to cancel all or any portion of this order which is not delivered on time.
INSPECTION AND ACCEPTANCE
The materials shall be subject to inspection upon delivery, and the materials may be rejected for defects or faults revealed by such, inspection or by analysis or the use thereof at any time thereafter. Rejected materials may be returned to Seller for full refund, including any transportation charges paid by the Buyer.
Buyer reserves the right to cancel all or any part of this order which has not actually been shipped by Seller, in the event Buyer’s business is interrupted because of strikes, labor disturbances, fires, acts of God, or any other cause beyond the reasonable control of the Buyer.
Only Purchase Orders issued and approved by Buyer’s Purchasing Personnel are legally binding. Invoices for each Purchase Order must be invoiced separately. All payments must be made by presentation of written invoices to Promega’s Accounts Payable Department and processed through the appropriate Buyer account payable process.
Buyer will pay any sales, use, local or any other taxes which may be due as a result of this transaction, other than income taxes owed by Seller.
All information contained in any drawings, blueprints, specifications, samples, purchase commitments, and other material submitted by Buyer to Seller hereunder is exclusively proprietary to Buyer and shall be returned to Buyer upon request or upon completion, termination, or cancellation of this Purchase Order. Seller shall keep all such information strictly confidential and shall not, without Buyer’s prior written consent, use such information in whole or in part for its own benefit, or disclose such information in whole or in part to any other party.
If any court of competent jurisdiction determines that any provision of these terms and conditions is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed herein.
No Changes shall be made to any of the terms herein unless agreed to in writing by an authorized representative of Seller and Buyer, and authorized by Buyer’s revised purchase order.