DEPOSITION SCIENCES, INCORPORATED GENERAL TERMS AND CONDITIONS
- Acceptance: Deposition Sciences, Inc. (“DSI”)’s acceptance of Buyer’s order (“Order”) for DSI’s products (“Product”) is expressly made conditional on Buyer’s assent to all of DSI’s terms as set forth herein (“Terms”). Unless expressly accepted in writing by DSI, additional or differing terms or conditions in Buyer’s purchase order or proposed by Buyer are objected to by DSI and have no effect.
- Prices and Shipment: All prices for transactions within the U.S.A. are FOB Origin, and for international transactions, FCA Origin (INCOTERMS 2010). DSI shall prepay freight and bill Buyer.
- TAXES AND DUTIESUnless separately stated on the face, all prices are quoted, all orders accepted and all billings rendered exclusive of all customs duties, tariffs, import taxes, federal, state, and municipal taxes of any kind. Excepting only California State Sales Tax when applicable, DSI will not report, collect, or pay any tax which may be imposed on buyer and Buyer shall report and pay all such imposed taxes.
- PAYMENT: Payment terms are net thirty (30) days after the date of DSI’s invoice. All payments are to be in United States dollars. Payments made from non-United States countries shall be made by wire transfer, with all applicable fees paid by Buyer.
- TITLE AND RISK: Title to Product shall pass to Buyer upon full payment. Risk of loss or damage shall pass to Buyer for transactions within the U.S.A in accordance with FOB Origin, and for international transactions, FCA Origin (INCOTERMS 2010).
- CHANGES: Buyer may propose changes, by written order, within the general scope of an Order, provided that all such changes must be agreed to in writing by DSI prior to such changes taking effect. If any change causes an increase or decrease in the cost of, or schedule for, the performance of work under an Order, an equitable adjustment in the price or schedule, or both, shall be negotiated and the Order modified accordingly.
- CUSTOMER FURNISHED MATERIAL:
- a) DSI shall not be liable for any loss or damage from any cause whatsoever, except for gross negligence or willful misconduct on the part of DSI, to property owned by Buyer and furnished to or left with DSI (“Customer Furnished Material”), and the risk of loss for Customer Furnished Material shall remain with Buyer.
- b) If a specific quantity of Product is desired, Buyer shall furnish to DSI an overage of Customer Furnished Material as required by DSI to achieve Buyer’s target quantity. Buyer will pay for all Product coated as specified, including any Product over the target quantity.
- a) DSI shall not be liable for any loss or damage from any cause whatsoever, except for gross negligence or willful misconduct on the part of DSI, to property owned by Buyer and furnished to or left with DSI (“Customer Furnished Material”), and the risk of loss for Customer Furnished Material shall remain with Buyer.
- FIXTURE AND TOOLS: DSI’s means of manufacture and methodology and design of set-ups, fixtures and tools required for performance of any Order (“Tooling”) are proprietary information of DSI and shall remain as such upon completion of any Order. Unless otherwise set forth specifically on the face of the Order, DSI retains title to any Tooling utilized in the performance of this Order.
- INSPECTION AND ACCEPTANCE OF PRODUCT: Acceptance of Product shall occur within seven (7) days after delivery. Failure to inspect and reject nonconforming Product (or components thereof) within such period shall be deemed acceptance by Buyer with full responsibility for payment.
- LIMITED WARRANTY:
- Except as otherwise specified herein, DSI warrants the Product solely manufactured by DSI shall be free from nonconformances in material and workmanship for a period of one (1) year.
- This Warranty is the only warranty made by DSI and DSI’s sole and exclusive liability and Buyer’s sole and exclusive remedy with respect to the Product delivered hereunder and no representative or person is authorized to assume for DSI any obligations or liabilities beyond this Warranty in connection with the sale of DSI’s Product. This Warranty is made to Buyer only at the original location and is nontransferable, and may only be modified or amended by a written instrument signed by DSI’s Authorized Representative. Product which is replaced or repaired under this Warranty is warranted only for the remaining portion of the original warranty period applicable to the Product.
- Except as otherwise specified herein, DSI warrants the Product solely manufactured by DSI shall be free from nonconformances in material and workmanship for a period of one (1) year.
- All Product which Buyer considers defective shall be returned to DSI’s plant, transportation costs prepaid and borne by Buyer.
- This Warranty shall be void if the non-conformances if the Products have been:
- repaired, worked on, or altered by persons not authorized by DSI
- subject to misuse, negligence or accident
- connected, installed, used or adjusted otherwise than in accordance with the instructions furnished by DSI.
- repaired, worked on, or altered by persons not authorized by DSI
- The risk of loss of the Product shipped or delivered to DSI’s plant for repair or replacement will be borne by Buyer.
- If upon inspection DSI determines that no non-conformance covered by this Warranty is present, Buyer will be notified and the Product returned at Buyer’s expense; in addition, a charge for testing and examination may, at DSI’s sole discretion, be made on Product so returned.
- The warranty set forth in this Section 10 constitutes the only warranty provided under this Agreement. DSI SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
- INTELLECTUAL PROPERTY RIGHTS:
- Any and all intellectual property rights, including, but not limited to patents, copyrights, and trade secrets arising from any inventions, discoveries, or developments conceived or made by DSI, DSI’s employees or persons otherwise under DSI’s control, in connection with an Order, including all title and rights thereunder, shall reside solely with DSI, including the exclusive power to determine whether or not and where a patent application shall be filed and the disposition of any rights thereunder.
- Except as expressly agreed in writing by DSI, sale of Product or performance of any work under an Order does not convey any rights or license to DSI’s intellectual property used or developed in the course of performing an Order.
- PATENT INDEMNITY: Buyer shall indemnify, defend and hold harmless DSI and its directors, officers, employees, agents and customers against all costs, losses, damages and liabilities of every kind, including reasonable attorney’s fees, arising from or related to claims that the manufacture, use, sale or disposal of Product infringes any patent, trademark, copyright, trade secret or other intellectual property right if the alleged infringement concerns Product made by DSI pursuant to the Buyer’s drawings and specifications.
- ATTORNEY’S FEES: If any legal action by Seller is necessary to collect amounts due from Buyer, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any relief to which it may be entitled.
- AUDITS: DSI considers the financial information supporting the cost and pricing data, if submitted as part of an Order, to be sensitive and proprietary and, therefore, not subject to audit by Buyer. Any required audits shall be performed only by authorized representatives of the Defense Contract Audit Agency unless otherwise agreed to in writing by DSI’s Authorized Representative.
- FORCE MAJEURE: DSI shall not be held responsible for any failure of performance or failure to make delivery of all or any part of the Product purchased under any Order due to federal, state or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire, flood or earthquake damage to or destruction in whole or in part of the manufacturing plant; lack of or inability to obtain materials, labor, fuel, electrical power, water, or supplies; or any other cause, act of God, contingency, or circumstances within or without the United States not subject to its control which hinders the manufacture or delivery of the Product.
- DISPUTES: All disputes under this Order that are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity. Each of the parties hereto agrees that any litigation with respect to this Order shall be brought only in a federal or state court having jurisdiction in or over the County of Sonoma, California.
- EXPORT CONTROL: Buyer acknowledges that the sale of Product may be subject to compliance with the Export Administration Act Regulations of the Department of Commerce of the United States, as amended, and other export controls of the United States (“Export Laws”). Buyer and its distributors, if any, shall comply with all Export Laws. Buyer shall not export or re-export any Product to any country and/or end-user to which export or re-export of Product is prohibited by the Export Laws without first obtaining the permission of the United States Office of Export Administration or its successor.
- SALES, LEASES, LICENSES TO U.S. GOVERNMENT:
- U.S. Government Agency Other Than Department of Defense: If Buyer resells, leases or sublicenses the Product to any agency of the U.S. government other than the Department of Defense (“Non-DOD Agency”) or if Buyer is a Non-DOD Agency, Buyer shall, as applicable, enter into an agreement with the Non-DOD Agency containing the following terms, or if Buyer is a Non-DOD Agency, Buyer agrees to the following terms: i) The Government acknowledges and agrees that any and all software, computer data bases and related documentation (collectively “computer software”) is “commercial item” as defined in 48 CFR 2.101 and “commercial computer software” as that term is used in 48 CFR 12.212. The Government shall have only those rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. 48 CFR 12.212(b). Pursuant to 48 CFR 12.212(a)(1), the Government acknowledges and agrees that it shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as mutually agreed to by the parties in this Agreement. The rights stated in FARS 52.227-19 – Commercial Computer Software – Restricted Rights (48 CFR 52.227-19) are hereby withheld from the Government. Manufacturer is Deposition Sciences, Inc. 3300 Coffey Lane, Santa Rosa, CA 95403.
- Department of Defense; Commercial Computer Software and Commercial Computer Software Documentation. If Buyer resells, leases or sublicenses the Product to U.S. Department of Defense (“DOD”) or if Buyer is the DOD, Buyer shall, as applicable, enter into an agreement the DOD containing the following terms, or if Buyer is the DOD, Buyer agrees to the following terms: i) The Government acknowledges and agrees that any and all computer software is “commercial computer software” as defined at DFARS 227.7201 and DFARS 252.227-7014 and as that term is used in DFARS 227.7202-3 and 227.7202-4 and that any and all computer software documentation is “commercial computer software documentation” as that term is used in DFARS 227.7202-3 and 227.7202-4. The Government shall have only the rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. DFARS 227.7202-3(a). The Government shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as shall be as identified in this Agreement. DFARS 227.7202-4. Manufacturer is Deposition Sciences, Inc. 3300 Coffey Lane, Santa Rosa, CA 95403.
- APPLICABLE LAW: This Purchase Order shall be governed by and shall be construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The provisions of the “United Nations Convention on Contracts for International Sale of Goods” shall not apply to this Purchase Order, including any amendments or changes to this Purchase Order.
- ELECTRONIC CONTRACTING: The parties agree that if this Contract is transmitted electronically neither party shall contest the validity of this Contract, or any acknowledgement thereof, on the basis that this Contract or acknowledgement contains an electronic signature.
Information of DSI:
- Information provided by DSI to Buyer remains the property of DSI. Buyer shall comply with all proprietary information agreement with DSI and comply with all proprietary information markings and restrictive legends applied by DSI to anything provided hereunder to Buyer. Buyer shall not use any DSI provided information for any purpose except to perform this Contract and shall not disclose such information to third parties without the prior written consent of DSI. Buyer shall maintain data protection processes and systems sufficient to adequately protect DSI provided information and comply with any law or regulation applicable to such information.
- If Buyer becomes aware of any compromise of information provided by DSI to Buyer, its officers, employees, agents, suppliers, or subcontractors (an “Incident”), Buyer shall take appropriate immediate actions to investigate and contain the Incident and any associated risks, including prompt notification to DSI after learning of the Incident. As used in this Section, “compromise” means that any information provided by DSI has been exposed to unauthorized access, inadvertent disclosure, known misuse, loss, destruction, or alteration other than as required to perform the Work. Buyer shall provide reasonable cooperation to DSI in conducting any investigation regarding the nature and scope of any Incident. Any costs incurred in investigating or remedying Incidents shall be borne by Buyer.
- Any DSI provided identified as proprietary or subject to restrictions on public disclosure by law or regulation shall be encrypted (i) if transmitted via the internet, or (ii) during electronic storage if potentially accessible by the Internet or otherwise by non-authorized users.
- The provisions set forth above are in addition to and do not alter, change or supersede any obligations contained in a proprietary information agreement between the parties.
- RELEAST OF INFORMATION:
Except as required by law, no public release of any information, or confirmation or denial of same, with respect to this contract or the subject matter hereof, will be made by Buyer or its subcontractors without the prior written approval of DSI. Buyer shall use “Deposition Sciences Incorporated” or any other trademark or logo owned by DSI, in whatever shape or form, without the prior written consent of DSI. - WAIVERS AND REMEDIES:
- Failure by either party to enforce any of the provisions of this Contract or applicable law shall not constitute a waiver of the requirements of such provisions or law, or as a waiver of the right of a party thereafter to enforce such provision or law.
- The rights and remedies of either party in this Contract are cumulative and in addition to any other rights and remedies provided by law or in equity.
- Failure by either party to enforce any of the provisions of this Contract or applicable law shall not constitute a waiver of the requirements of such provisions or law, or as a waiver of the right of a party thereafter to enforce such provision or law.
- SURVIVABILITY: If this Contract expires, is completed, or is terminated, BUYER shall not be relieved of those obligations contained in the following clauses:
- Applicable Laws
- Disputes
- Export Control
- Information of DSI
- Intellectual Property
- Limited Warranty
- Release of Information
- Limitation of Liability
- Attorney’s Fees
- LIMITATION OF LIABILITY: IN NO EVENT SHALL DSI BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS ORDER OR THE USE OR PERFORMANCE OF THE PRODUCT. DSI’s LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHER CAUSE OF ACTION), SHALL NOT EXCEED THE PAYMENTS RECEIVED FROM BUYER FOR THE SPECIFIC PRODUCT AT ISSUE.
