STANDARD TERMS AND CONDITIONS OF SALE
THE SELLER’S ACCEPTANCE OF THE BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON THE BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE, WHICH ARE IN LIEU OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN THE BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO THE BUYER’S ORDER OR THE GOODS. THE BUYER’S ASSENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT SHALL BE CONCLUSIVELY PRESUMED FROM THE BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE GOODS OR FROM PAYMENT BY THE BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF THE SELLER.
Full payment is due prior to shipment of the Product(s) but otherwise must be approved by an authorized executive of the Seller. For invoices that are approved by the Seller and qualified for net 30, any payments not made within thirty (30) days of the date of the invoice shall be subject to a late-payment fee of $150 plus charge of 2% per month (compounded) on the unpaid balance of any amount then past due. Unpaid invoices after 65 days from day of the invoice will be considered delinquent, and Stemell, Inc. has the right to take legal collection actions. The Buyer is responsible for any fees within the collection process, including, but not limited to, collection agency, court and attorney fees.
Although Stemell, Inc. will not charge the Buyer for any sales tax, the Buyer is solely liable for any excises, levies or taxes that the Seller may be, in the future, required to pay or collect, under any existing or future law, upon or with respect to the sale.
The Buyer is responsible for the management of any hazardous/medical wastes generated after the Product(s) delivered to the Buyer’s location.
Change of Order
The Buyer may, from time to time, before the shipment, initiate changes by issuing to the Seller written notices (each, a “Change Order” or “New Purchase Order”) that alter, add to or deduct from Stemell, Inc.’s Homologous-Use-Only/Minimally Manipulated HCT/P Products but that are otherwise subject to the Terms of this Order. The Seller will promptly comply with the Terms of any Change Order.
Due to the nature of the Products (Biological Products), under any circumstances, the Seller shall not provide any replacement, exchange or credits after the Product is delivered to the Buyer’s location. Any applicable statute of limitations runs from the date of the Buyer’s discovery of the noncompliance. If the Buyer gives the Seller notice of noncompliance with very strong evidence and proof (the Seller still needs to approve it), the Seller shall, at its own cost and expense, promptly replace the nonconforming Goods (Products).
Limitation of Liability
WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT WILL THE SELLER BE RESPONSIBLE OR LIABLE FOR (A) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION OR (B) INDEMNIFICATION OF THE BUYER OR OTHERS FOR COSTS, DAMAGES OR EXPENSES ARISING OUT OF, OR RELATED TO, STEMELL, INC.’S PRODUCTS. THE BUYER’S SOLE LIABILITY UNDER THE TERMS OF THIS AGREEMENT SHALL BE FOR ANY UNPAID INVOICES.
Hold-harmless agreement laws and the Hold-Harmless Agreement will be applied to any Products released from Stemell, Inc.’s facility. Stemell, Inc. is, and will always be, committed to the high quality, integrity and sustainability of its Products; however, Stemell, Inc. is not, and will not be, responsible or reliable for issues that include, but are not limited to, the acts of medical professionals/clinics/hospitals after the Product’s delivery, procedure, complications during and after transplants, damages, any issues related to patients during and after the treatment procedure, the results/outcomes of the transplant, and any lack of skills of medical professionals. Please refer to the Hold-Harmless Agreement for more details or email firstname.lastname@example.org.
Claims by the Buyer for shortages or errors in delivery must be made within two (2) days after the delivery of the Goods (Products). Goods are sold subject to the standard manufacturing practices of the Seller’s suppliers. Goods purchased on the basis of weight are subject to customary quantity variations recognized by practice in the industry.
No Goods shall be returned for credit without first obtaining written consent and approval from an executive officer of the Seller and approved by Stemell, Inc.’s CEO/President.
Delivery terms are either Priority Overnight or First Overnight from the Seller’s plant in San Juan Capistrano, California, USA. In either case, the Buyer shall assume all risk of loss or damage upon delivery by the carrier at the point of shipment unless the Buyer pays for insurance. Scheduled dates of delivery are determined from the date of the Seller’s acceptance of any Order(s) placed by the Buyer and are estimates of approximate dates of delivery, not a guarantee of a date of delivery.
Orders accepted by the Seller are subject to cancelation by the Buyer only upon the express written consent of the Seller. Upon such cancelation and consent, the Seller shall cease work and hold for the Buyer all completed and partially completed articles and work in progress, and the Buyer shall pay the Seller for all work and materials that have been committed to and/or identified to the Buyer’s Order(s) plus a cancelation charge as prescribed by the Seller, in addition to a reasonable profit to the Seller on the entire contract.
In addition to the foregoing, the Buyer agrees to save and hold the Seller harmless from any claims, demands, liabilities, costs, expenses or judgments arising in whole or in part, directly or indirectly, out of negligence or lack of care by the Buyer or the Buyer’s customers, agents, employees or invitees involving the use of the Goods supplied by the Seller. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon the Seller in connection with the defense of any such claim.
Any agreement arising out of this transaction shall be deemed to have been made in the City of San Juan Capistrano, County of Orange, State of California. The parties agree that the validity, interpretation and performance of any agreement arising out of this transaction shall be governed by the laws of the State of California without regard to conflict-of-interest laws. The Buyer and the Seller hereby submit to the exclusive jurisdiction for the resolution of any disputes hereunder to the Circuit Court of the Fourth Judicial Circuit, Orange County, and San Juan Capistrano, California. This shall be the sole and exclusive jurisdiction and venue for the purpose of adjudication of any rights and liabilities hereunder.
In the case of default or breach by the Buyer in the performance of any or all of the provisions of this agreement, the Seller may cancel any outstanding Order from the Buyer and declare all obligations immediately due and payable and shall, in addition, have all remedies afforded by the Uniform Commercial Code as enacted in California, and any other applicable law. The Buyer shall, in addition, be liable for the Seller’s expenses incurred in exercising any remedies available to the Seller, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the contract rate provided under the Terms of Payment above.
If the Buyer requests deferral of deliveries, the Seller’s agreement to defer delivery shall not excuse the Buyer from its obligation to pay for the Goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these Terms and Conditions. In addition to adhering to the original payment schedule, the Buyer shall pay such storage charges as the Seller may assess for storing the Goods awaiting delivery. If the Buyer requests deferral prior to commencement of production, the Seller may require progress payments in connection with expenses for materials and services incurred by the Seller in anticipation of production.
All nonpublic, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, and discounts or rebates, disclosed by the Buyer to the Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order, is confidential, is solely for the use of performing the Order, and may not be disclosed or copied unless authorized by the Buyer and the Seller in writing. This Section shall not apply to information that is: (a) in the public domain, (b) rightfully and legally known to the Seller at the time of disclosure or (c) rightfully and legally obtained by the Seller on a nonconfidential basis from a third party.
Upon the Buyer’s request, the Seller shall provide the Buyer with a certificate of product liability insurance.
Compliance With Law
The Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits required by law to carry out its obligations under the Order. The Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order.
Delivery shall be made in accordance with the Terms of this Order. The Order number must appear on all documents pertaining to the Order, invoices, packing lists, correspondence and all shipping documents. The Seller shall not substitute material or ship more than the quantity ordered. The Buyer shall be solely responsible for, and pay all costs of, delivering the Goods to the delivery location, including, without limitation, all shipping and freight costs and all duties, fees, tariffs or similar analogous taxes on imports/exports of the Goods (“Customs Duties”), if applicable. The Supplier will take all reasonable steps to minimize the cost of shipping if that does not jeopardize the integrity of the Product(s).
Relationship of the Parties
Nothing contained herein shall be construed as creating any agency, partnership, employment or fiduciary relationship. Neither party shall have authority to bind the other party in any manner whatsoever.
The terms found on the face of this Order shall govern over the Terms and Conditions herein. Any separate written overriding agreement signed by both parties shall govern over the Terms of the Order.
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.
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 delivered by personal delivery, nationally recognized overnight courier (all fees prepaid), facsimile (with confirmation of transmission), or certified or registered mail (return the box, container, insulated foam requested, thermometer, postage prepaid).
The Seller shall not be liable for any damages caused by failure or delay in shipping the Goods described herein if such failure or delay is due to any war, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of the Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, or any other cause beyond the reasonable control of the Seller.
The Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the 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 the 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 rights, remedy, power or privilege arising from the Order by the 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.