A purchase order is an offer by Aeglea Biotherapeutics, Inc. or any of its affiliates (the “Buyer”) for the purchase of the specified goods (the “Goods”) or services (the “Services”), from the specified vendor (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the specifications on the face of the purchase order, the “Order”). This Order will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by Seller under the Order; (c) Seller’s receipt of any payment, progress, partial or full, from Buyer under the Order; or (d) the passage of ten (10) days after Seller’s receipt of the Order without written notice to Buyer that Seller does not accept. This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order, unless a separate, specifically overriding written contract has been entered into and signed by the parties. This Order expressly limits Seller’s acceptance to the terms of the Order, and Buyer’s submission of this Order is conditioned on Seller’s agreement that that any terms different from or in addition to these Terms, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Order, even if Seller purports to condition its acceptance of the Order on Buyer’s agreement to such different or additional terms.
Seller shall deliver the Goods and perform the Services at the delivery point or shipping address specified on this Order (the “Delivery Location”), and on or before the date(s) specified in this Order (the “Delivery Date”). If the Order does not specify a Delivery Date, Seller shall provide the Goods and Services as if time is of the essence. If Seller anticipates a delay in the delivery of the Goods or Services, Seller shall immediately notify Buyer. In the event that Seller fails to deliver the Goods or Services by the Delivery Date, Buyer may purchase substitute Goods or Services elsewhere and charge Seller for any additional expense incurred relating to the purchase of the substitute Goods or Services. If delivery of the Goods and Services is not complete by the Delivery Date, Buyer may, without liability, and in addition to its other rights and remedies, terminate this Order, by notice effective when received by Seller, as to Goods and Services not yet delivered or rendered.
All Goods and Services shall be received subject to Buyer’s inspection and acceptance or rejection. In case any Goods or Services are found to be defective or otherwise not in conformity with the requirements of this Order, Buyer shall have the right to reject the same and/or require that such Goods or Services be corrected or replaced promptly with satisfactory Goods or Services. If Buyer so rejects the Goods or Services or if Seller, when requested by Buyer, fails to proceed promptly with the replacement or correction thereof, Buyer may immediately terminate this Order pursuant to Section 8 and purchase substitute Goods or Services elsewhere and charge Seller for any additional expense incurred relating to the purchase of the substitute Goods or Services. Rejected defective or non-conforming Goods or Services will be held for Seller’s instructions and at Seller’s risk and expense and, if Seller so directs, will be returned at Seller’s expense. Payment for Goods or Services on this Order prior to inspection shall not constitute an acceptance thereof.
4. Cumulative Remedies
The rights and remedies under this Order are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
5. Price and Payment
The price of the Goods and Services is the price stated on the face of this Order (the “Price”). Unless otherwise specified in the Order, the Price shall include any applicable transportation charges, insurance costs, shipping and handling fees and taxes. Seller shall invoice Buyer for the Order within thirty (30) days of delivery. Unless otherwise stated in the Order, Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller.
6. Change Order
Buyer may, from time to time, initiate changes by issuing to Seller written notices (each, a “Change Order”) that alter, add to, or deduct from the Goods and Services, but that are otherwise subject to the Terms, and Seller shall promptly comply with any Change Order. If a change causes an increase or decrease in cost and/or time required for performance of the Goods and Services, an equitable adjustment shall be made and the Order shall be modified accordingly. If any specified condition of the Change Order cannot be achieved or met by Seller, Buyer must be notified and must accept in writing any variation prior to shipment or delivery.
Buyer may terminate an Order, in whole or in part, for any reason upon ten (10) days’ prior written notice to Seller. In addition to any remedies provided herein, Buyer may terminate this Order with immediate effect, either before or after acceptance of Goods or Services, if Seller has breached any of the Terms herein. If the Seller becomes insolvent, commences or has commenced by it or against it bankruptcy proceedings, receivership, reorganization or assignment for the benefit of creditors, then Buyer may immediately terminate this Order. To the extent this Order covers stock Goods or any Services, Buyer’s only obligation is to pay for Goods and Services received and accepted by Buyer prior to the notice of termination. To the extent this Order covers Goods manufactured or fabricated to Buyer’s specifications, Seller shall immediately cease all performance hereunder upon receipt of notice of termination, and, if Seller has not breached these Terms, Buyer shall reimburse Seller for the actual, direct cost to Seller of such Goods which have, at the time of such cancellation, been wholly or partially manufactured, not to exceed the Price. Upon payment, title to all such Goods shall pass to Buyer. Unless Buyer shall have otherwise instructed Seller, Seller agrees that it will not manufacture Goods in reserve in an amount greater than the number of manufactured Goods that it has shipped to Buyer at any one time.
Seller warrants that it has the full power to enter into an Order and to perform its obligations under this Order. Seller warrants that the Goods and Services to be delivered pursuant to the Order (i) are of merchantable quality and free from defects in material, design or workmanship, (ii) shall conform to all specifications or other descriptions furnished to and approved by the parties, (iii) comply with all applicable international, federal, state and local laws, rules and regulations (including, without limitation, those concerning health, safety, and environmental standards) which bear upon Seller’s performance (“Applicable Laws”), (iv) are fit for their intended purpose and operate as intended, (v) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer, and (vi) are not restricted in any way by any patents, copyrights, mask work, trademark, trade secrets, or intellectual property, proprietary or contractual rights of any third party. In addition, Seller warrants that Buyer shall have good and marketable title to all Goods and Services (including components thereof) purchased pursuant to transactions contemplated under the Order, free of all liens and encumbrances and other restrictions, and that no licenses are required for Buyer to use such Goods and Services. The terms of this Section shall not be waived by reason of acceptance of the Goods and Services or payment therefor by Buyer.
To the fullest extent permitted by law, Seller shall indemnify, defend, protect, and hold harmless Buyer and Buyer’s parent company, its subsidiaries, affiliates, successors, heirs or assigns and its and their respective directors, officers, shareholders, licensees, employees and agents (each an “Indemnitee”, and collectively, the “Indemnitees”) from and against all claims, losses, liabilities, damages, lawsuits, actions, proceedings, arbitrations, taxes, penalties, or interest, associated auditing and legal expenses, and other costs incurred by Indemnitee(s) (including reasonable attorneys’ fees and costs of suit) (“Indemnified Claims”) arising from Seller’s: (i) performance of its obligations under the Order, (ii) misrepresentation or breach of any representation, warranty, obligation, or covenant of the Order, or (iii) other negligent or wrongful act or omission of Seller. Such Indemnified Claims shall include, without limitation, all direct, actual, general, special, and consequential damages. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
10. Confidential Information
All non-public, confidential or proprietary information of Buyer, including but not limited to any research, development, technical, economic or other business information, disclosed by or on behalf of Buyer to Seller, either directly or indirectly, in writing, orally or by inspection of tangible objects, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that Seller can demonstrate by written evidence is: (i) in the public domain; (ii) rightfully and legally known to the Seller at the time of disclosure; or (iii) rightfully and legally obtained by the Seller on a non-confidential basis from a third party.
Seller shall maintain adequate insurance in any and all forms necessary to protect both Seller and Buyer against all liabilities, losses, damages, claims, settlements, expenses, and legal fees arising out of or resulting from performance or provisions of the Order. Although evidence of certain minimum coverage may be required, nothing contained herein shall abridge, diminish or affect Seller’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or resulting from performance or provisions of the Order.
12. Compliance with Law
Seller warrants and represents to Buyer that it is in compliance with and shall remain in compliance with during performance of this Order, and shall ensure that its employees, agents, contractors and subcontractors (the “Personnel”) comply with, all Applicable Laws. Seller shall execute and deliver such documents as may be required to evidence compliance. Seller has and shall maintain in effect all licenses, permissions, authorizations, consents and permits required to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. If Seller fails to comply with any Applicable Laws and as a result Buyer is fined, Seller agrees to pay the fine and costs incident thereto or reimburse Buyer for payment. To the extent that Seller’s Personnel are required to enter onto Buyer’s site or property, Seller shall ensure that Personnel comply with Buyer’s health, safety and other policies and standards. Seller shall ensure that any payments to suppliers are made in accordance with Tex. Gov’t. Code, Ch. 2251. Seller shall comply with conflicts of interest Applicable Laws, including the NIH requirement to maintain a written standard of conduct and comply with 42 CFR Part 50, Subpart F.
13. Shipping Terms
Delivery shall be made in accordance with the Order. The Order number must appear on all documents pertaining to the Order, including invoices, packing lists, correspondence, and all shipping documents. Seller shall not substitute material or ship more than the quantity ordered. Supplier shall be solely responsible for and pay all costs of delivering the Goods and Services to the Delivery Location.
14. Title and Risk of Loss
Unless otherwise specified in the Order, risk of loss of or damage to the Goods remains with Seller and title will not pass to Buyer until the Goods are delivered to and accepted by Buyer at the Delivery Location.
15. Force Majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God, government restrictions, floods, fire, earthquakes, war, terrorist acts, riots, strikes or embargoes. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from performance for a continuous period of more than fifteen (15) days, Buyer may terminate this Order immediately by giving written notice to Seller.
16. Waiver and Release of Liens
Upon Seller’s receipt of amounts properly invoiced, Seller waives and releases all rights to, for itself and the Personnel, and at its sole cost shall obtain prompt removal of any lien fixed against Buyer, for Goods and Services performed under this Order.
17. Relationship of the Parties
Seller, in the performance of its duties hereunder, shall be an independent contractor only, and not an agent, employee, partner, or joint venturer of or with Buyer, and nothing herein shall be deemed to create or imply any relationship other than that of independent contractor. Seller shall have no authority to incur any obligations or expenses on behalf of Buyer or to act in any other manner on behalf of Buyer or in its name. Seller’s employees and contractors shall not be entitled to receive any compensation or employee benefits from Buyer.
18. Governing Law and Venue
All matters arising out of or relating to this Order shall be governed by the laws of the State of Texas, without regard to choice of law, and shall be binding upon the parties hereto in the United States and worldwide. The parties hereby submit to the exclusive jurisdiction of the Texas courts, both state and federal, in all matters concerning this Order.
All notices, consents, claims, demands, waivers and communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be deemed duly delivered on the same business day as delivery by hand or by fax with machine confirmation of complete transmission, or three (3) business days after delivery by deposit as United States certified mail return receipt requested, or the next business day after delivery by deposit with an overnight courier.
The provisions of this Order which by their explicit terms or their manifest intent are to survive termination or expiration, including but not limited to Sections 4, 9, 10, 11, 12, 19, and 22 of the Terms, shall remain in full force and effect for a period of seven (7) years from the date of this Order.
Seller shall not use Buyer’s name, trademarks, logos, or insignias for publicity or advertising purposes. Seller shall not release any information concerning this Order or with respect to its business relationship with Buyer to any third party, except as required by Applicable Laws, without Buyer’s prior written consent.
If any term or provision of this Order is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Order or invalidate or render unenforceable such term in any other jurisdiction.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment shall relieve the Seller of any of its obligations hereunder. No modification, alteration or amendment of the Order shall be binding unless agreed to in writing and signed by Buyer. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Order by Buyer shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy or privilege hereunder preclude any other exercise of any additional right, remedy or privilege.