GENERAL TERMS AND CONDITIONS FOR PURCHASE OF GOODS OR SERVICES
1. ACCEPTANCE: Deposition Sciences, Inc. ("DSI")'s acceptance of Buyer's order is expressly made conditional on Buyer's assent to all of DSI's terms as set forth herein that are additional to or different from those offered in Buyer's Subcontract or Purchase Order.
2. PRICES AND SHIPMENT: All prices are FOB Origin. DSI shall prepay freight and bill Buyer.
3. TAXES AND DUTIES: Unless 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.
4. 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.
5. TITLE AND RISK: Title to Product shall pass to Buyer upon full payment. Risk of loss or damage shall pass to Buyer at FOB point.
6. CHANGES: Buyer may make changes, by written order, within the general scope of this order in any one or more of following: a) drawings, designs or specifications where the Product to be furnished is to be specifically manufactured for the Buyer in accordance therewith; b) method of shipping or packing; c) place of delivery. All other 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 this order, an equitable adjustment in the price or schedule, or both, shall be negotiated and the order modified accordingly.
7. CUSTOMER FURNISHED MATERIAL AND 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, and the risk of loss for material furnished to or left with DSI shall remain with Buyer. b) Actual coating yield may be over or under Buyer's target quantity. Buyer will pay for all product coated as specified, including any Product over the target quantity.
8. FIXTURE AND TOOLS: DSI's means of manufacture and title to fixtures and tools required for performance of this order are property interests of DSI and shall remain as such upon completion of the order. DSI preserves the right to alter, sell, destroy or otherwise dispose of any fixtures and tools manufactured for performance of this order at any time after one year after the date of final delivery of Product. Invoices for setups, fixtures or tools do not convey any title to Buyer unless so specified in the order.
9. INSPECTION AND ACCEPTANCE OF PRODUCT: Acceptance of Product shall occur within thirty (30) days after delivery to Buyer. Failure to inspect and reject nonconforming items shall be deemed acceptance by Buyer with full responsibility for payment.
10. LIMITATION OF LIABILITY: DSI's sole and exclusive liability and Buyer's sole and EXCLUSIVE REMEDY under this Purchase Order shall be, at DSI's election, the repair or replacement of any nonconforming Product, or to credit Buyer's account. These remedies are available only if DSI is promptly notified in writing by Buyer upon discovery of nonconformances and DSI's examination of such Product discloses to DSI's satisfaction that such nonconformances actually exist and the Product has not been 1) repaired, worked on, or altered by persons not authorized by DSI so as in DSI's sole judgement to injure the stability, reliability, or proper operation of such Product; 2) subject to misuse, negligence or accident; or, 3) connected, installed, used or adjusted otherwise than in accordance with the instructions furnished by DSI.
11. LIMITED WARRANTY: a) Except as otherwise specified herein, DSI warrants the Product shipped hereunder to be free from nonconformances in material and workmanship for twelve (12) months from the shipment date for the individual Product. b) This warranty is the only warranty made by DSI 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 the original purchaser 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. Major sub-systems manufactured by other firms but integrated into DSI's system are covered by the original manufacturer's warranty. 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. c) All Products which Buyer considers defective shall be returned to DSI's plant, transportation costs prepaid and borne by Buyer. The risk of loss of the Product shipped or delivered to DSI's plant for repair or replacement will be borne by Buyer. d) If it is found that DSI's Product has been returned without cause and is still serviceable, 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. e) DSI MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THE ABOVE WARRANTY. IN NO EVENT SHALL DSI BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT DELIVERED HEREUNDER.
12. PATENTS AND DATA RIGHTS: a) Patents - Rights in any inventions or discoveries made by DSI, DSI's employees or persons otherwise under DSI's control, under this Purchase Order, including title to and rights under any patent application or patent which may issue thereon throughout the world shall reside solely with DSI, together with exclusive power to determine whether or not and where a patent application shall be filed and dispositioned of any rights thereunder. b) Data - Sale of Product or performance of any work under this order does not convey any rights or license to DSI's proprietary data used or developed in the course of the order. Any data required to be delivered are limited to that data expressly identified on the face of the order as a deliverable item.
13. 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.
14. ATTORNEY'S FEES: If any legal action is necessary to enforce the terms of this order, the prevailing party shall be entitled to reasonable attorney's fees in addition to any relief to which it may be entitled.
15. GOVERNMENT CONTRACTS: If Buyer's purchase is identified in writing as made for use under a U.S. Government contract, only those terms and conditions made mandatory for inclusion by applicable federal law shall be incorporated herein by reference.
16. AUDITS: DSI considers the financial information supporting the cost and pricing data, if submitted as part of this 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.
17. 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 this 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 merchandise or manufacturing plant; lack of or inability to obtain raw 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 merchandise
18. DISPUTES: Any dispute, controversy or claim arising out of or relating to this Purchase Order, including claims for its breach, shall be settled by binding arbitration in Sonoma County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any cash award shall be payable in U.S. dollars. The arbitration shall be conducted in the English language.
19. APPLICABLE LAW: This Purchase Order shall be governed by and shall be construed in accordance with the laws of the State of California, except for its laws regarding conflict of laws.
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