IDEXX Terms and Conditions of Purchase
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL PURCHASES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. Offer and Acceptance. This Purchase Order is only an offer to enter into a contract. For this Purchase Order to be a valid and effective offer, it must be executed by a duly authorized agent of the Buyer. We may revoke, amend or modify this offer at any time prior to Seller’s acceptance. Any of the following acts constitutes Seller’s acceptance of this Purchase Order and all terms and conditions herein: (a) Seller’s execution and return of the acknowledgment copy of this Purchase Order or Seller’s own acknowledgment form, (b) Seller’s commencement of performance pursuant to this Purchase Order, (c) Seller’s delivery of any of the products ordered or (d) Seller’s acceptance of any payment by us hereunder. Acceptance of this Purchase Order is expressly limited to and conditioned upon acceptance of the terms set forth below, which terms cannot be altered or amended without our express written agreement. Acceptance shall be binding upon Seller and Seller’s successors, assigns and delegatees.
2. Prices. All prices shall be as stated in this Purchase Order and are firm and not subject to escalation. Seller represents and warrants that the prices set forth in this Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same products, in like quantities, under similar circumstances. If no price is stated for any product, the price for that product shall be the lowest price currently quoted or charged by Seller for that product, but in no event higher than the price most recently quoted or charged to us by Seller for that product.
3. Taxes. Unless otherwise provided in this Purchase Order, the price includes, and Seller shall pay, all excise, sales, use, transfer or other taxes, federal, state and local, in connection with the sale or delivery of the products to us.
4. Terms of Payment. Unless we have otherwise agreed in writing, payment terms shall be net sixty (60) days End of the Month from the later of the date we receive Seller’s invoice or the date on which we accept the products.
5. Quantities. Unless we have otherwise agreed in writing, Seller must deliver the exact quantities specified. We reserve the right to reject incomplete deliveries and to return at Seller’s risk and expense excess quantities delivered.
6. Packaging and Shipment. All products shall be packaged, marked and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Seller shall mark on containers all necessary handling, loading and shipping instructions. An itemized packing list shall be included with each shipment. Bills of lading shall be mailed to us in triplicate. Seller shall pay all costs of packaging, transportation and insurance in delivering the products to our premises in Westbrook, Maine.
7. Delivery. Our production and marketing schedules are established in part in reliance upon the delivery information specified in this Purchase Order. Time and place of delivery are, therefore, of the essence in the performance of this Purchase Order. Any provision for delivery in installments shall not be construed as making the obligations of Seller severable. If delivery cannot be made at the specified time and place, Seller shall promptly notify us of the earliest possible date for conforming delivery. Notwithstanding such notice, and unless otherwise agreed by us in writing, Seller’s failure to effect conforming delivery shall entitle us to revoke any acceptance, to cancel this Purchase Order without liability to Seller, to receive a full refund of any amounts paid, to purchase substitute products elsewhere, to return at Seller’s risk and expense all or any part of a nonconforming delivery and to hold Seller accountable for any loss or additional costs incurred. Our receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right or remedy we have under this Purchase Order or under applicable law.
8. Title and Risk of Loss. Title to and risk of loss for products (other than software products) purchased which conform to this Purchase Order shall pass to us upon our receipt and acceptance at our premises. Title to and risk of loss for nonconforming products and for all property provided to us by Seller shall remain with Seller.
9. Inspection and Rejection. We may inspect and test all products at reasonable times before, during and after manufacture. If any inspection or test is made on Seller’s premises, Seller shall provide reasonable facilities and assistance for the safety and convenience of our inspectors in such manner as shall not unreasonably hinder or delay Seller’s performance. All products shall be received subject to our inspection, testing, approval and acceptance at our premises, notwithstanding any inspection or testing at Seller’s premises or any prior payment for such products. Products rejected by us as not conforming to this Purchase Order may be returned to Seller at Seller’s risk and expense and shall not be replaced by Seller without our written authorization.
10. Warranties. In addition to any other expressed or implied warranties, Seller warrants that all products delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, free from all defects in design, material and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances. Seller warrants that software products provided hereunder will perform substantially in accordance with applicable product specifications in effect at the time of delivery. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the products and shall extend to us and our customers. These warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which we may have or obtain. At its expense and option, Seller shall replace or repair any products not conforming to the foregoing warranties, and shall correct all software products not performing substantially in accordance with applicable product specifications. If after notice Seller fails promptly to replace or repair any such product or to correct any such software product, we may do so without further notice and Seller shall reimburse us for all costs incurred thereby. If we are unable to replace or repair any such product or to correct any such software product, Seller shall promptly refund to us the full purchase price paid by us for all such products.
11. Intellectual Property; Non-infringement.
(a) Seller acknowledges and agrees that all information, including without limitation specifications, drawings, diagrams, schematics, sketches, models, samples, designs, technical information or data, written, oral or otherwise, furnished by us or on our behalf, is and shall remain our sole and exclusive property, and shall be returned promptly to us or our designee (together with all copies) upon the earlier of our request or the termination or completion of this Purchase Order. Seller acknowledges and agrees that all such intellectual and industrial property, as well as the terms of this Purchase Order and the existence and content of the relationship between the Seller and us, shall be treated as confidential, and shall not be used or disclosed by Seller except as required in the course of performing this or other Purchase Orders for us. Unless we have otherwise agreed in writing, information and material furnished or disclosed by Seller to us shall not be considered to be confidential or proprietary, and shall be acquired by us free of restrictions of any kind.
(b) Seller acknowledges and agrees that any copyrightable product made, designed or developed for us in connection with the performance of this Purchase Order shall be a “work made for hire” within the meaning of Section 201 of the Copyright Law of 1976. Seller hereby assigns to us any and all inventions, discoveries, computer programs, software, data, technologies, designs, innovations and improvements, and the related patents, copyrights, trademarks, trade names and other industrial and intellectual property rights and applications therefore, made or conceived by Seller or its agents or employees in connection with the performance of this Purchase Order. Seller hereby appoints any of our officers as its duly authorized attorney, and Seller agrees to cooperate to the extent we may reasonably request, for the purposes of executing, filing, prosecuting and protecting the foregoing.
(c) Seller represents and warrants that the products delivered hereunder do not infringe any United States or foreign patent, trademark, trade secret or copyright, or any proprietary, intellectual property, industrial property, contract or other right held by any third party.
(d) Seller shall include all provisions of this Section 11 for the benefit of us, including this Section 11(d), in all subcontracts made under this Purchase Order.
12. Installation. If requested by us, Seller shall install the products supplied hereunder anywhere in the continental United States for a charge to be mutually agreed upon.
13. Tools and Equipment. All tools, dies, molds, patterns, jigs, masks and other equipment and materials furnished by us to Seller or paid for by us, directly or indirectly, and any replacements, shall remain our property. Seller shall safely store such property separately from Seller’s property, shall plainly identify such property as our property and shall not use, in any other manner whatsoever, such property except in filling this or other Purchase Orders for us. All such property shall be held at Seller’s risk, shall be insured by Seller at its expense for an amount equal to its replacement cost and with us named as loss payee and shall be returned promptly to us or our designee upon the earlier of our request or the termination or completion of this Purchase Order.
14. Changes. We may, at any time and from time to time, by written notice to Seller, make changes in specifications, designs, drawings, method of packing or shipment, quantity ordered, destinations and delivery schedules and Seller shall immediately comply therewith. If any such change causes a material increase or decrease in Seller’s cost or the time for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. Any claim by Seller for adjustment under this Section 14 shall be deemed waived unless made in writing within 10 days after receipt of written notice by us of the change. No change, modification or revision of this Purchase Order shall be binding upon us unless in writing and signed by our duly authorized representative. Nothing contained in this Section 14 shall excuse Seller from diligently proceeding with the order as changed.
(a) With respect to the software products, if any, provided by Seller, we and Seller intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sold” or similar or derivative words are understood and agreed to mean “license”. Seller shall retain ownership of and title to all software products provided hereunder, notwithstanding anything to the contrary stated herein.
(b) Seller hereby grants us a royalty-free, non-exclusive license to use, copy, operate, process and sublicense software products provided hereunder for our internal business purposes on the hardware products provided hereunder and to use, copy, operate, process and sublicense the related documentation for our internal business purposes. This license terminates when our lawful possession of the hardware products hereunder ceases, provided that the termination of this license shall not affect sublicenses previously granted by us.
16. Compliance with Laws.
(a) Seller shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, programs, plans and orders in the performance of this Purchase Order, including, without limitation, the Occupational Safety and Health Act, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and Executive Order 11246, as amended by Executive Order 11375, along with the implementing rules and regulations of the Office of Federal Contracts Compliance. At our request, Seller shall provide appropriate certificates of compliance.
(b) Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment and installation of the products ordered hereby.
(c) If in connection with the products to be delivered under this Purchase Order, Seller is required to comply with the Occupational Safety and Health Act’s hazardous communications standard (48 Fed. Reg. 53280 (1983)), Seller agrees to provide us with copies of the applicable Material Data Safety Sheets at the time of delivery to us of the products ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to us under such laws and regulations.
17. Government Contract Provisions. Purchase Orders which specify a government contract number or otherwise indicate that the materials purchased are intended for use under government contracts or subcontracts shall be subject to and deemed to incorporate all clauses and provisions which are contained in such contracts and subcontracts which are applicable to Seller.
(a) We may, by written notice to Seller, cancel the whole or any portion of this Purchase Order in the event of (i) proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller, (ii) the appointment, with or without Seller’s consent, of any trustee or receiver for any substantial portion of Seller’s assets, (iii) any assignment for the benefit of Seller’s creditors, or (iv) Seller’s breach of any provision contained herein. In the event of any such cancellation, we may procure, upon such terms and in such manner as we may deem appropriate, products comparable to the products covered by the Purchase Order so terminated, and Seller shall be liable to us for any excess cost of such comparable products. In the event of any such cancellation, we may require Seller to deliver to us, in the manner and to the extent directed by us, any completed or partially completed products, against our payment of the portion of the price properly allocable to such products. Seller shall continue performance of this Purchase Order to the extent not canceled. Except to the extent specifically set forth herein, we shall have no obligation or liability to Seller in respect of the canceled portion of this Purchase Order. Our rights set forth in this Section 18 shall be in addition to our other rights in the event of Seller’s default. Notwithstanding the foregoing, Seller shall not be liable to us for excess costs or other damages if Seller’s default is due to a cause beyond its reasonable control and without its negligence. Such notice shall be in writing and mailed by United States Mail addressed to the Seller, and the date of notice shall be the date of mailing. In the event of any such cancellation, all deposits or prepayments shall be deemed to have been held in trust for our benefit and shall be returned to us promptly upon request.
(b) All of Seller’s obligations set forth in this Purchase Order shall survive the cancellation, termination or completion of this Purchase Order.
19. Assignment. Seller shall not delegate or subcontract any duties or assign any rights or claims under this Purchase Order without our prior written consent, and any such attempted delegation, subcontract or assignment shall be void.
20. Governing Law. This Purchase Order and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced as a sealed instrument in accordance with the laws of the State of Maine.
21. Authorization. Seller represents and warrants that it has been duly authorized to execute, deliver and perform this Purchase Order, and the person signing on Seller’s behalf has the power and authority to do so.
22. Indemnification. Seller shall indemnify and hold us harmless against any and all claims, losses, liabilities, damages, costs or expenses, including attorneys’ fees and court costs, and shall defend all actions and proceedings at its sole expense, resulting from the breach or alleged breach of any representation, warranty or agreement made by Seller in this Purchase Order, including, without limitation, Seller’s obligations to deliver products pursuant to this Purchase Order and Seller’s representations, warranties and agreements contained in this Purchase Order.
23. Insurance. Seller shall maintain with an insurance company or companies Comprehensive General Liability Insurance (including liability hereunder) in the minimum amount of $1,000,000. At our request, a certificate of such insurance shall be filed with us, and shall provide for 10-days’ prior written notice to us of cancellation or material change. Liability insurance limits shall not be construed to limit our right of indemnity hereunder.
24. Set-off. Any amount owed to Seller by us or any of our affiliates shall be subject to deduction for any set-off, counterclaim or indemnification right arising out of this or any other Purchase Order to Seller from us or any of our affiliates.
25. Severability; Remedies; Waiver. In the event that any one or more provisions contained in this Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Our failure to enforce, or waiver of a breach of, any provision of this Purchase Order shall not constitute a waiver of any other breach or of such provision.
26. Notices. Any notice or communication required or permitted under this Purchase Order shall be in writing and shall be deemed received when personally delivered or three days after being sent via first-class mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
27. Entire Agreement. This Purchase Order is the complete and exclusive statement of the contract between us and Seller with respect to our purchase of the products. No waiver, consent, modification, amendment or change of the terms of this Purchase Order shall be binding unless in writing and signed by us and Seller. In case of a conflict between the terms and conditions on the face of this Purchase Order and the terms and conditions contained on this reverse side of this Purchase Order, the terms and conditions on the face of this Purchase Order shall control.
28. Additional or Inconsistent Terms. Any term or condition set forth in any document provided to us by Seller which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein will not become a part of this Purchase Order or be binding upon us. If Seller objects to any term or condition set forth herein, this objection must be in writing and received by us at the address stated on the opposite side prior to Seller’s delivery. Our failure to object to terms contained in any communication from Seller will not be a waiver of the terms set forth herein. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included in this Purchase Order.
29. Work to be Completed on Our Premises by Seller. In the event that Seller is required, as a part of its fulfillment of the terms of this Purchase Order, to perform work or services on our premises, Seller assumes entire responsibility and liability for losses, expenses, damages, demands and claims in connection with or arising out of any injury or alleged injury (including death) or damage to property, sustained or alleged to have been sustained in connection with or to have arisen out of the performance of such work or services by Seller. Seller shall indemnify and hold us harmless from and against any and all claims, demands, actions, causes of action, suits, damages, expenses (including attorney’s fees) and liabilities, contingent or otherwise, whatsoever resulting from or arising in any manner on account of or by reason of any injury to or death of any person or any damage to or loss of property which may occur or be alleged to have occurred as a result of or in connection with the performance of such work or services in connection with this Purchase Order.