The following Purchase Order Terms & Conditions govern purchase orders issued by any of Evergen’s corporate entities, and such purchasing corporate entity is referred to herein as “Evergen”.
Offer to Purchase. The purchase order, including these purchase order terms & conditions (collectively, the “Purchase Order”), is an offer by Evergen to purchase the goods and/or services specified within the Purchase Order (the “Goods”) from the party to whom the Purchase Order is addressed (the “Seller”).
Acceptance of the Purchase Order. The Purchase Order is not binding on Evergen until Seller accepts the Purchase Order in writing, and Evergen may withdraw the Purchase Order at any time before it is accepted by Seller.
Packaging the Goods. All Goods shall be packed for shipment in accordance with applicable laws, regulations, industry standards and Evergen’s instructions, or if Evergen does not provide instructions, in a manner sufficient to ensure the Goods are delivered to Evergen in an undamaged condition.
Title and Risk of Loss. Title and risk of loss passes to Evergen upon delivery of the Goods to the Evergen address specified in the Purchase Order. Seller bears all risk of loss and damage to the Goods until delivery of the Goods to the Evergen address specified in the Purchase Order.
Delivery of the Goods. Seller shall deliver the Goods in the quantities and on the date specified in the Purchase Order, or as otherwise agreed to in writing between the parties. The Purchase Order number shall be included on all shipping documents,labels, invoices and any other documents pertaining to the Purchase Order. All Goods shall be delivered to the Evergen address specified in the Purchase Order during Evergen’s normal business hours, or as otherwise instructed by Evergen, and time is of the essence with respect to delivery of the Goods.
Quantity of the Goods. If Seller delivers more than the quantity of Goods ordered by Evergen, Evergen may reject any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s expense.
Inspection of Goods. Evergen shall have ten (10) business days after delivery of the Goods to inspect the Goods. Evergen may reject any portion of the Goods, or all of the Goods, if it determines the Goods are in any way non-conforming or defective. If Evergen rejects any portion of the Goods, Evergen has the right to: (a) rescind the Purchase Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Evergen requires replacement of the rejected Goods, Seller shall, at its expense, promptly replace the rejected Goods and pay for all related expenses, including but not limited to, transportation charges for return of the rejected Goods and delivery of the replacement Goods.
Price of the Goods. The price of the Goods is the price stated in the Purchase Order (the “Price”). Unless otherwise agreed to in writing between the parties, the Price includes all packaging costs and insurance.
Payment Terms. Seller shall promptly issue an invoice to Evergen after delivery of the Goods, and Evergen shall pay Seller all properly-invoiced amounts. All payments to Seller shall be in U.S. dollars, unless otherwise agreed to in writing between the parties. In the event of a payment dispute, the parties shall seek to resolve all such disputes expeditiously and in good faith, and Seller shall continue performing its obligations under the Purchase Order notwithstanding any such dispute.
Warranties for the Goods. Seller represents and warrants to Evergen that all Goods shall: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Evergen; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Evergen’s discovery of the non-compliance of the Goods with any of the foregoing warranties.
Indemnification. Seller shall defend, indemnify and hold harmless Evergen, including its subsidiaries, affiliates, successors and assigns, and their respective directors, officers, managers, members and agents (collectively, the“Indemnitees”) against any and all losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and court costs, to the extent resulting from any demand, claim, suit or cause of action brought by a third party and relating to: (a) Seller’s misstatements, negligence, recklessness,intentional misconduct or fraud; or (b) Seller’s breach of any representation, warranty or covenant in the Purchase Order. Seller shall not enter into any settlement without the Indemnitee’s prior written consent.
Insurance. Seller shall, at its own expense, maintain and carry insurance in amounts necessary to cover its obligations under the Purchase Order, with financially sound and reputable insurers. Such insurance shall include commercial general liability and product liability insurance. Upon Evergen’s request, Seller shall provide Evergen with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified. Seller shall inform Evergen thirty (30) days’ in advance of a cancellation or material change in Seller’s insurance policy.
Compliance with Laws and Evergen’s Supplier Code of Conduct. Seller shall comply with all applicable laws and regulations, and Seller shall maintain in effect all licenses, authorizations and permits that it needs to carry out its obligations under the Purchase Order. Seller shall also comply with Evergen’s Supplier Code of Conduct at the following web address: http://www.evergenbio.com/supplier-code-of-conduct
Termination of the Purchase Order. Evergen may terminate the Purchase Order, in whole or in part, upon written communication to Seller: (a) if the Goods have not been delivered by the date specified in the Purchase Order; (b) if Seller has not complied with the Purchase Order; or (c) if Seller has become insolvent, filed a petition for bankruptcy or has had commenced against it proceedings relating to bankruptcy.
Waiver. Failure to enforce any term of the Purchase Order is not a waiver of future enforcement of that term or any other term. No term of the Purchase Order shall be deemed waived and no breach excused unless such waiver or excuse is in writing and signed by the party providing such waiver or excuse.
Evergen’s Confidential Information. “Evergen’s Confidential Information” means any non-public, proprietary or confidential information disclosed by Evergen to Seller, whether disclosed in oral, visual, written, electronic or other tangible or intangible form, and whether or not marked or designated as “confidential”, including but not limited to, non-public, proprietary or confidential information related to Evergen’s customers,suppliers, implants, products, services, internal practices, designs,specifications, methods, trade secrets, know-how and other confidential intellectual property, along with any third-party confidential information included with any such information. Confidential Information also includes information of the aforementioned nature of any subsidiary or affiliate of Evergen. Seller shall not, directly or indirectly,disclose, communicate, publish or reveal Evergen’s Confidential Information to any third party, and Seller shall not use Evergen’s Confidential Information except in performance of Seller’s obligations under the Purchase Order. Following completion of Seller’s obligations under the Purchase Order, or upon Evergen’s request, at any time during or after completion of Seller’s obligations under the Purchase Order, Seller shall promptly: (a) return to Evergen all of Evergen’s Confidential Information; or (b) destroy all of Evergen’s Confidential Information in its possession or control, and confirm in writing that Seller has returned or destroyed all of Evergen’s Confidential Information.
Force Majeure. The performance of a party impacted by a Force Majeure Event is delayed,without liability, for the duration of a Force Majeure Event. A “Force Majeure Event” means any event beyond the reasonable control of the party affected by such circumstance, including without limitation, an act of God, flood, fire, earthquake, storm, pandemic, epidemic, explosion, war, invasion, terrorist threat or act, riot or other civil unrest, embargo, blockade, action by any governmental authority, national or regional emergency, telecommunication breakdown, power outage or shortage, inadequate transportation services, and an inability or delay in obtaining raw materials.
Assignment. Seller shall not assign any of its rights or obligations under the Purchase Order without the prior written consent of Evergen.
Amendment and Modification. No change to the Purchase Order is binding upon Evergen unless it is agreed to in writing by Evergen.
Relationship of the Parties. The relationship between the parties is that of independent contractors.Nothing contained in the Purchase Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. The Purchase Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein is intended to or shall confer upon, any other person or entity, any right, benefit or remedy of any nature whatsoever.
Governing Law / Venue. All matters arising out of the Purchase Order shall be governed by the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any action or proceeding arising out of the Purchase Order shall be instituted in the state or federal courts located in Alachua County, Florida.
Severability. If any provision of the Purchase Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the Purchase Order.
Survival. Provisions of the Purchase Order which by their nature should apply beyond completion of the Purchase Order will remain in force after any completion of the Purchase Order including, but not limited to, the provisions related to Warranties for the Goods and Indemnification.
