NeuroLogica Corp. Terms and Conditions

The following sets forth the terms and conditions (the “Terms and Conditions”) applicable to the purchase of certain hardware, software and other equipment (the “Products”) and/or certain services (the “Services”) by NeuroLogica Corp. (“Buyer”) from the seller (the “Seller” and, together with NeuroLogica, the “Parties”) identified on the Purchase Order attached. The Purchase Order shall be subject to these Terms and Conditions, which are incorporated therein by reference, and no provision of any invoice, acceptance or any other written or oral communication between the Parties shall be effective to add to or amend these Terms and Conditions, irrespective of Buyer’s acceptance of or payment for the Products or Services. Unless specifically agreed to in writing by a duly authorized representative of Buyer, Buyer objects to, and is not bound by, any term or condition that differs from or adds to these Terms and Conditions. Seller’s (i) written acknowledgment of the Purchase Order; (ii) failure to reject the Purchase Order within five (5) days from receipt; (iii) performance of any Services or partial performance thereof; or (iv) delivery of any shipment or partial shipment of the Products, shall in each case constitute Seller’s acceptance of such Purchase Order and the Terms and Conditions contained herein.
1. SHIPPING INSTRUCTIONS: Seller will comply with the routing and the shipping instructions on the face of this order. If the instructions are absent or not clear, Seller will contact the Buyer for instructions.
2. PACKAGING & PACKING: Seller will be responsible for safe packaging and packing, which must conform to the requirements of applicable tariffs and highest industry standards. Seller will separately number all containers showing corresponding numbers on its invoices. An itemized packing slip bearing the number of the order will be placed in each container. No charge will be made for packaging, packaging materials, crating, or storage unless stated on the face of the order.
3. PRICE: Seller agrees that:
(a)All per-unit prices and total prices set forth on the face of the order are firm and not subject to increase, and include all applicable taxes.
(b)No price to Buyer shall be higher than the Seller’s lowest prevailing price for articles or services of like quality and quantity in effect on the day of this order.
(c)Buyer will receive the full benefit of any reduction in price of any article or service covered by this order if that reduction is made subsequent to Seller’s receipt of this order.
(d) Prices shall be inclusive of all packaging, crating, shipping costs and taxes (including, but not limited to, federal, state or municipal sales, duties, excises, fees value added, occupational, processing, purchase, use or similar taxes, which are now or may hereafter be directly imposed on Buyer in respect of the Purchase Order).
4. RISK OF LOSS: Notwithstanding anything to the contrary contained herein or in the Purchase Order, delivery shall not be deemed to be complete, and risk of loss or damage shall not pass to Buyer, until such time as the Products and Services have been delivered to and accepted by Buyer.
5. INVOICES: Within twenty-four (24) hours after shipment of Products, the Seller shall mail to Buyer two (2) copies of packing slip and bill of lading, express receipt or parcel post, together with a separate invoice for each order in triplicate. Invoices shall include the following information, as applicable: (i) the order number; (ii) Product number(s); (iii) description of Products, sizes and quantities; (iii) description of Services; (iv) unit price; and (v) extended totals. Mail invoices with bills of lading, express receipts, and other shipping documents attached in duplicate to ACCOUNTS PAYABLE DEPARTMENT. Any discount for which Buyer is eligible hereunder shall be deducted from the prices for the Products and Services. In the event that any such discount is dependent on certain time periods, such applicable time period shall be calculated from (i) the scheduled delivery date; (ii) the date of actual delivery; or (iii) the date an accepted invoice is received, whichever is later. Payment is deemed to be made for the purposes of earning a discount on the date payment is mailed or transmitted by Buyer. Notwithstanding the foregoing, any delays caused by Seller’s failure to provide a correct invoice to Buyer shall not in any way affect Buyer’s ability to obtain applicable discounts. All incorrect invoices will be returned for reinvoicing, from which all applicable discounts will be taken upon its receipt.
6. TERMS OF PAYMENT: Buyer will pay Seller the price specified in this order for Products delivered and accepted or Services rendered and accepted thirty (30) days from the date of acceptance of such Products or Services or at any later time stated on the Seller’s invoices. Buyer will be entitled to the maximum cash discount granted by Seller at any time from the date of this order to the date of payment specified in this paragraph. Cash discounts, if any, will be according to those indicated on the face of this order. Notwithstanding the foregoing, any payment made by Buyer under this Section 6 shall be subject to adjustment for errors, shortages, defects in the Products or Services or other failure of Seller to meet the requirements of the order.
7. INSPECTION: All Products are subject to inspection and test at their place of manufacture or destination or both, by Buyer’s representatives and in case of orders to be supplied to or for the use of the government, are subject to inspection and test by the representatives of the government. Notwithstanding any (i) payment; (ii) passage of title; or (iii) prior inspection or test, all Products and Services are subject to final inspection and acceptance or rejection by Buyer upon delivery to Buyer. Within thirty (30) days of the delivery of the Products and performance of the Services by Seller, Buyer shall examine such Products and Services and determine if, in its sole discretion, such Products and Services contain any items which do not conform with the warranties or provisions of these Terms and Conditions or the order. Failure by Buyer to inspect and accept or reject Products shall not relieve Seller from responsibility for defective or nonconforming Products. Buyer may reject and receive full credit for any Products or Services which are defective as to material workmanship, quality or otherwise or which are not in conformity with any specifications, drawing, samples, or descriptions approved by Buyer. Without extra cost to Buyer, Seller will, immediately upon request of Buyer, replace all rejected Products, including Products damaged in transit or because of unsatisfactory packing or packaging by Seller. Rejected Products shall not be resubmitted for acceptance without concurrent notice of their prior rejection. Seller will be notified of rejected Products and such Products will be returned to Seller. Cost of return shall be borne by Seller. In absence of information from Seller regarding preferred routing for return of rejected Products, insurance and value of goods for declaration to carrier, Buyer may declare full valuation or obtain insurance for benefit of and for account of Seller.
8. WARRANTY: Seller warrants that all Products, materials, work, and Services furnished hereunder will be free from defects in designs, materials, workmanship, and fabrication; will conform to applicable specifications, drawings, samples, and descriptions; and will be suitable for the use intended by Buyer. All warranties shall survive any inspection, delivery, acceptance, and payment, and shall be enforceable by Buyer and its successors, assigns, customers, and users of its products. Seller further warrants that all Services provided to Buyer shall be performed to the highest standards of workmanship in the industry. These warranties shall not be deemed to be exclusive.
9. DEFAULT:
(A) Buyer may terminate this order or any hereof by written notice of default to Seller if Seller:
(1) does not for any reason deliver the Products or perform the Services, in accordance with the delivery schedule specified herein, time being of the essence, or (2) fails to make progress or otherwise impairs Buyer’s expectation of receiving due performance of this order or fails to comply with any other of the provisions of this order and does not cure such failure within a period of ten (10) days after notice from Buyer specifying such failure.
(B) Buyer may immediately terminate these Terms and Conditions or the order by written notice to Seller if (1) Seller shall become insolvent or make a general assignment for the benefit of creditors; (2) Seller files a petition for bankruptcy or has filed against it a petition for bankruptcy which is not dismissed within ninety (90) days after being filed; (3) Seller proposes any dissolution or becomes involved in legal, financial or reorganization proceedings that, in the opinion of Buyer, interfere with the diligent performance and satisfactory completion of Seller’s obligations hereunder; (4) Seller assigns, or attempts to assign, any of its rights or obligations under these Terms and Conditions or the order without the prior written consent of Buyer; or (5) Seller fails to perform or breaches these Terms and Conditions.
(C) In the event of termination pursuant of this section, Buyer may purchase similar articles or services elsewhere. Seller shall be liable to Buyer for any excess cost to Buyer, provided however, that the Seller shall not be liable for such excess costs if the default of the Seller’s due to causes beyond the control and without the fault or negligence of Seller, including acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargos, and unusually severe weather. No cause shall constitute a basis for excusable default unless Seller has notified Buyer, in writing, of the existence of such cause within ten (10) days from the beginning thereof.
10. RESPONSIBILITY FOR PROPERTY: Seller shall assume the risk and shall be responsible for any loss or damage to any property (including materials, parts, tools, designs, sketches, drawings, blueprints patents, dies, molds, models, plates, cuts, and special appliances) belonging to Buyer and/or delivered to, manufactured or acquired by Seller for Buyers account. Any of such property shall be recorded and identified as property of Buyer and retained by Seller subject to examination by Buyer. They shall maintain in good condition at Seller’s expense and kept insured by Seller for the benefit of Buyer. Such property shall be used exclusively in the production for Buyer’s Products required by this order and shall not be used for production of larger quantities than those specified herein or in the production, manufacture, or design of any article for any other person, without prior written consent of Buyer. Such property shall subject to disposition by Buyer at any and all times, and upon demand shall be returned to Buyer, including any unused property furnished by Buyer and all spoiled or defective property unless Buyer shall otherwise direct. In any event, Seller shall return such property to Buyer in the condition in which it was received, except for reasonable wear and tear and except to the extent such property has been incorporated in Products required by this order. Nothing herein shall be construed as imposing any obligation on Buyer to furnish any such property If Seller’s work under this order involves operations by the Seller on the premises of Buyer or any of its customers or any place where Buyer conducts operations, or with property furnished to Seller by Buyer for the execution of this order, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Buyer’s negligence. Seller shall indemnify Buyer against all loss which may result in any way from any act or omission of Seller, its employees, servants, agents, or subcontractors, and Seller shall maintain such Public Liability, Personal Injury Damage, and Employee’s Liability and Compensation Insurance as will protect Buyer from said risks and from any claims under any applicable law.
11. BUYERS EQUIPMENT: All dies, tools, patents, drawings, fixtures, and other items furnished or specifically paid for by Buyer are to remain or become the property of Buyer and are subject to removal upon Buyer’s request. Seller is not permitted to use the same for any other customer without Buyers approval.
12. CHANGES, ADDITIONS, AND DELETIONS: Buyer shall have the right, by written notice, to make changes within this agreement without limiting the generality of the foregoing as to packing, packaging, testing, specifications, designs, quantities, delivery schedules, or any other phase of work to be preformed by Seller hereunder. If such changes cause an increase or decrease in the amount due under this order or in the time required for its performance, an equitable adjustment will be made, provided however, that any claim by Seller therefore must asserted in writing within fifteen (15) days from the date of the notice of the change, and said claim must be approved and authorized by Buyer in writing. Seller shall not substitute other materials or accessories or revise specifications for those specified in the order without written consent of Buyer. Changes made by Seller without any authorization change notice shall be made at the sole risk of Seller, there being no financial recourse against Buyer.
13. WORKERS COMPENSATION INSURANCE: Seller shall secure and maintain adequate Workers Compensation Insurance in accordance with the laws of the state or states wherein Seller shall furnish materials and/or services for Buyer. Certificates of such insurance will be furnished to Buyer upon request. Seller shall also comply with all other laws and regulations as maybe applicable to the material and/or services being furnished.
14. SET-OFF: Buyer may at any time deduct any amount owned by Seller to Buyer (or any of its associated or affiliated companies), against any amounts due and owing to the Seller (or any of those associated or affiliated companies, including agents and representatives) with respective to this order or any subsequent orders.
15. COMPLIANCE WITH LAWS: Seller warrants and certifies that in the performance of this order it will comply with all applicable statutes, rules, regulations, and orders of the United States, and of any states and political subdivisions thereof, including laws and regulations pertaining to labor, wages, hours, and other conditions of employment. Each of Seller’s invoices shall contain a certificate that the goods covered by the invoice were produced and Seller has otherwise performed its obligations hereunder in compliance with all applicable requirements of the Fair Labor Standards Act, the Equal Employment Opportunity Act and the Occupational Safety and Health Act, all regulations and orders issued thereunder, and all other Federal, State and Local statutes, regulations, ordinances, and codes, including identification, procurement and delivery of required permits, certificates, approvals, and inspections. Seller agrees to indemnify Buyer and its customers for any loss or damage that may be sustained by reason of any breach of this paragraph or the Government Contract Provisions paragraph #19 below.
16. NOTICES: Notices and instruments shall be deemed given and delivered to Buyer and Seller when mailed to their respective addresses shown on the face of this order, except that either party may from time to time designate by notice another address which shall thereupon become the effective address of such party.
17. CONFIDENTIAL INFORMATION: Seller shall not disclose any Confidential Information of Buyer relating to this order to any third person not entitled to receive it. For the purposes of this Section 17, Confidential Information shall include (i) all materials, equipment, tools and facilities furnished to Seller by Buyer; and (ii) all software, technical data (including, without limitation, manufacturing, process, test or repair data, know-how, drawings, specifications, blueprints, data and designs) and other information that Seller has designed, developed or created at Buyer’s direction. Buyer will retain the title and full ownership rights to its Confidential Information.
18. REMEDIES: The rights and remedies provided Buyer herein shall be cumulative and in addition to all other rights and remedies provided by law or equity. Buyer’s waiver of a violation of a provision hereof by Seller shall not constitute a waiver of any other violation by Seller.
19. GOVERNMENT CONTRACT PROVISIONS: If the materials and/or services being sold to the Buyer hereunder are for use in connection with a government contract or subcontract, Seller agrees that all clauses (including without limitation all applicable FAR and DOD FAR Supplement clauses and Executive Order 11246) required by the provisions of such government contract or subcontract shall be made a part of this order and that all other provisions required by law to be made applicable to this order are hereby incorporated herein.
20. ASSIGNMENT: The purchase order shall not be assigned in whole or part without Buyer’s permission. Buyer will not be responsible for goods delivered or services rendered without a purchase order.
21. GENERAL INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer and Buyer’s officers, directors, employees and agents from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising, directly or indirectly, out of or in connection with Seller’s performance hereunder, including, without limitation, (i) the willful misconduct or negligent acts or omissions of Seller, its suppliers or contractors; (ii) any alleged or claimed defect in the Products or Services, whether latent or patent, or nonconformity with Seller’s warranties set forth in Section 8; or (iii) the inaccuracy of any representation and certification furnished by Seller to Buyer in connection with these Terms and Conditions or the order.
22. INTELLECTUAL PROPERTY INDEMNITY: Seller hereby indemnifies Buyer, its successors and users of its products, and services against loss, damage or liability, including costs and expenses which may be incurred on account of any suit, claim, judgment, or demand involving infringement or alleged infringement of any patent, copyright or other intellectual property right of any third party in the manufacture, use or disposition of any Products supplied hereunder, provided Buyer shall notify Seller of any suit instituted against it and, shall permit Seller to defend the same or to make settlement in respect thereof. Should any Product become, or in Buyer’s opinion be likely to become, the subject of such a claim, Seller shall, at its own expense and at Buyer’s option, (a) procure for Buyer the right to make continued use thereof, whether through obtaining a license or some other means; (b) replace or modify such Product so that it becomes non-infringing; or (c) refund the price paid by Buyer for such Product.
23. APPLICABLE LAW: Buyer and Seller have entered into this agreement with reference to the laws of the Commonwealth of Massachusetts, including without limiting the generality of the foregoing, the uniform commercial code, Chapter 106 of the Commonwealth of Massachusetts General Laws as interpreted by Massachusetts Courts. It is the expectation and intention of the parties that those laws will govern all aspects of these Terms and Conditions and of the relationship hereby created. If any term or provision of these Terms and Conditions or the application thereof to any person or circumstance, or any aspect of such relationship, should now or at any time be invalid or unenforceable under any applicable law, the remainder of these Terms and Conditions, the application of such term or provision to other person and circumstances or the rest of the relationship, shall remain valid and enforceable to the fullest possible extent under applicable law.
24. EXPORT CONTROL: The Parties acknowledge that any products, software or technical information disclosed under these Terms and Conditions are subject to U.S. and non-U.S. export laws and regulations and any use or transfer thereof must be made in compliance with such regulations. Neither Party shall transfer, directly or indirectly, any product, technical data or software furnished hereunder to any country without first obtaining all required licenses or other governmental approvals and otherwise complying with all applicable export control laws.