DIRECT BIOLOGICS, LLC
STANDARD TERMS AND CONDITIONS
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods (“Goods”) by Direct Biologics, LLC (“Seller”) to a purchaser of the Goods (“Purchaser”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) These Terms, together with a consignment agreement or a quotation or confirmation of sale or other purchase order or agreement, as applicable, and all related Exhibits and Schedules, (each an “Incorporated Agreement”, and collectively with these Terms, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Purchaser’s general terms and conditions of purchase regardless whether or when Purchaser has submitted its purchase order or such terms. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and conditions and does not serve to modify or amend these Terms.
(a) Subject to the availability of finished Goods and reasonably viable delivery methods, the Goods will be delivered (i) within a reasonable time after the receipt of Purchaser’s purchase order, and (ii) pursuant to the Purchaser’s requested time of delivery. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall cause the Goods to be delivered, via an authorized carrier, to the address provided, in writing, by Purchaser (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Purchaser shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Purchaser. Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s purchase order.
(d) If the authorized carrier (as described above) is unable to deliver the Goods at the Delivery Point because Purchaser has not provided appropriate information, instructions, documents, licenses, authorizations, or lacks the labor and equipment reasonably suited to receive the Goods: (i) risk of loss to the Goods shall pass to Purchaser; and (ii) the Goods shall be deemed to have been delivered.
(a) The quantity of any installment of Goods as recorded by Seller upon delivery to carrier by Seller is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary.
(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Purchaser gives written notice to Seller of the non-delivery after reasonable inspection at the time of delivery and Seller has not reasonably rectified, to the extent necessary (as determined by the Seller in its sole discretion), such non-delivery of Goods within a reasonable time from receipt of Purchaser’s written notice as described in this subsection 3(b).
(c) Any liability, if applicable, of Seller for non-delivery of the Goods shall be limited and capped to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Shipping Terms. Delivery shall be made FOB origin.
5. Title and Risk of Loss. Title and risk of loss passes to Purchaser upon Seller putting the Goods in the possession of the carrier. As collateral security for the payment of the purchase price of the Goods, Purchaser hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
6. Amendment and Modification. These Terms are subject to change by Seller without prior written notice at any time, in its sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced at www.DirectBiologics.com. Purchaser should review these Terms prior to purchasing any Goods from Seller. All purchases of Goods after the “Last Updated Date” will constitute Purchaser’s acceptance of and agreement to such changes.
7. Inspection and Rejection of Nonconforming Goods.
(a) Purchaser shall inspect the Goods at the time of delivery at the Delivery Point (“Inspection Period”). Purchaser will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Purchaser’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Purchaser timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. If necessary, Purchaser shall ship, at its expense and risk of loss, the Nonconforming Goods to an address provided, in writing, by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Purchaser’s shipment of Nonconforming Goods, ship to Purchaser, at Purchaser’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Purchaser acknowledges and agrees that the remedies set forth in Section 8(b) are Purchaser’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b) , all sales of Goods to Purchaser are made on a one-way basis and Purchaser has no right to return Goods purchased under this Agreement to Seller.
(a) Purchaser shall purchase the Goods from Seller at the price (the “Price”) set forth in Seller’s current product price list in force as of the date that Seller accepts Purchaser’s purchase order. If the Price should be increased by Seller before delivery of the Goods to a carrier for shipment to Purchaser, then these Terms shall be construed as if the increased prices were originally inserted herein, and Purchaser shall be billed by Seller on the basis of such increased price.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Payment Terms.
(a) Purchaser shall pay all fees, charges, and amounts due to Seller upon order of the Goods. Purchaser shall make all payments hereunder by credit card, wire transfer or in US dollars.
(b) Purchaser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Purchaser fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof.
(c) Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
10. No Warranties.
(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 12(b) above shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
(a) Purchaser agrees to defend, indemnify and hold harmless Seller and its employees, directors, officers, independent contractors and agents (“Seller Indemnitees”) against and from any claims arising out of (a) Purchaser’s commercialization of any the Goods, provided that such commercialization is contrary to the intended use of the Goods; (b) Purchaser’s “off-label” use of the Goods; (c) Purchaser’s negligence or misconduct in connection with this Agreement; (d) Purchaser’s misstatements about the intended or appropriate use of the Goods, the effectiveness of the Goods, or the regulatory approval status of the Goods; (e) Purchaser’s infringement, misappropriation or violation of any intellectual property or other proprietary rights of another person or entity in the use or commercialization of the Goods; or (f) Purchaser’s violation of any law or regulation, including but not limited to United States Food and Drug Administration and American Association of Tissue Banks regulatory requirements.
(b) In the event of any such claim against any Seller, or its Indemnitees (individually, an “Indemnitee”), the indemnified party shall promptly notify the other party in writing of the claim for which indemnification is sought under this Section 12; provided, that failure to promptly notify Purchaser shall relieve Purchaser of any obligation to the Seller, and its Indemnitees, under this Section 12 solely to the extent prejudicial to the Purchaser’s ability to defend such action. Purchaser shall, at its sole expense, defend and control such claim with counsel of its own choosing; provided, however, that Seller, and its Indemnitees, may participate in the defense of such claim with their own counsel and at Purchaser’s expense. Seller, and its Indemnitees, shall reasonably cooperate with the Purchaser in the investigation or defense of any and all claims covered by this Section 12. Seller, and its Indemnitees, shall not settle any claim that is covered by this Section 12 without the Purchaser’s prior written consent. Purchaser shall not settle such claim without the prior written consent of the Seller, and any other the indemnified party under this Agreement against which such claim was brought.
(c) In the event a claim is based partially on an indemnified claim described in Section 12(a) above and partially on a non-indemnified claim, any payments and reasonable attorney fees incurred in connection with such claims are to be apportioned between the parties in accordance with the degree of responsibility attributed to each party.
13. Compliance with Law. Purchaser shall comply with all applicable laws, regulations and ordinances, including but not limited to United States Food and Drug Administration and American Association of Tissue Banks regulatory requirements. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Purchaser shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Purchaser. Purchaser assumes all responsibility for shipments of Goods
requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
14. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect to Purchaser, if Purchaser: (i) fails to pay any amount upon order when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; (iv) a change in control of the buyer; or (v) a breach or termination by the buyer of any other contract between the parties.
15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Purchaser, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Purchaser shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
17. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Purchaser to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades that impact this Agreement ; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances. The Impacted Party shall give notice within 30 (thirty) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
18. Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
22. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts of the State of Texas in each case located in Travis County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
23. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation 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 (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction and Survival.