These purchase order terms and the purchase order (the “Order”), together with any and all attachments and appendices incorporated therein, issued by the Banner Industries of N.E., Inc. (“Company”) to the seller (“Provider”) as identified on the Order (collectively, the “Agreement”) govern the purchase of the Goods and/or Services (each herein defined) described in such Order. As used herein, the term “Party” shall mean either Company or Provider, as the context requires, and the term “Parties” shall mean both Company and Provider. This Agreement sets forth the entire understanding between the Parties with respect to the Services; provided however, if the Parties are parties to another written agreement governing the purchase of the Services (“Existing Agreement”), the terms of such Existing Agreement shall prevail to the extent this Agreement conflicts with such Existing Agreement. Provider’s execution or commencement of performance hereunder constitutes Provider’s acceptance of this Agreement. Except as otherwise set forth herein (including without limitation with respect to an Existing Agreement), this Agreement (i) supersedes all prior and subsequent written or oral inquiries, proposals, agreements, negotiations or commitments pertaining to the provision of Services and (ii) shall prevail over any additional, inconsistent or conflicting terms of any purchase order, quotation, acknowledgment, confirmation or other document issued by Provider pertaining to the Services and any such terms shall be void and of no force or effect. Neither this Agreement, nor any amendment, modification substitution nor supplement thereto is binding on Company unless and until signed by a duly authorized representative of Company. Any actions taken or not taken by Provider in anticipation of execution of this Agreement are taken at Provider’s sole risk and expense. Unless expressly specified otherwise, Company is not obligated to purchase any amount of Services from Provider and is not obligated to purchase Services exclusively from Provider. The article and section headings contained in this Agreement are for reference purposes only and have no effect on the interpretation of this Agreement or its application.
1.1 The following defined terms are used in this Agreement and shall have the meanings set forth below. Any terms defined elsewhere in this Agreement shall be given equal weight and importance as though set forth in this Section.
“Affiliate” shall mean any firm, corporation or other entity, however organized, that, directly or indirectly, controls, is controlled by or is under common control with an entity. For purposes of this definition, “control” shall be defined as ownership of a majority of the voting power or other equity interests of the entity under consideration.
“Applicable Laws” shall mean any country, federal, state, provincial, commonwealth, cantonal or local government law, statute, rule, requirement, code, regulation, permit, ordinance, authorization, order, judgment or similar governmental requirement, including any interpretation or guidance documents relating to any of the foregoing issued by a relevant governmental authority, in each case to the full extent applicable to Provider, this Agreement or any Good or Service to be provided hereunder. Applicable Laws includes without limitation Privacy Laws and Anti-Corruption Laws.
“Company Materials” shall mean all tangible material, or its intangible equivalent in unwritten or oral form, created directly or indirectly in performance of the Services, Provider’s obligations hereunder or through use of Company Confidential Information, including without limitation all patent, copyright, trademark, trade secret and other proprietary rights therein. Company Materials may include without limitation any or all of the following, whether finished or unfinished: drafts, documents, writings, communications, plans, protocols, data, estimates, calculations, test results, specimens, schematics, drawings, tracings, studies, specifications, surveys, photographs, software (including without limitation the firmware, object code, source code and media, in machine readable and printed form, and any improvement, addition, modification or new version thereof), programs, reports, orders, maps, models, agreements and all derivative works thereof, ideas, concepts, discoveries, inventions, patents, know-how, negative know-how and improvements. Company Materials shall not include Provider Materials.
“Company Requirements” shall mean without limitation (i) any of Company’s safety, security and compliance rules, programs and policies as applicable to Provider or Provider’s performance hereunder made available to Provider; and (ii) those policies, codes, rules, standards, procedures and other governance documents of Company made available to Provider that are applicable to persons or entities conducting business with or for Company that set forth standards of conduct, including when engaging in interactions with certain representatives of governmental authorities or other third parties, each as may be revised by Company from time to time in its sole discretion.
“Company System” shall mean any computer system, network, telecommunication system, database, or other information technology environment owned, controlled, operated or maintained by Company or any Company Representative, including electronic mail, voicemail, networks, internet and intranet portals and the Company web.
“Compensation” shall mean all consideration that, pursuant to this Agreement, may be received by Provider for performance of its obligations hereunder which may include Reimbursable Expenses.
“Deliverable” shall mean all tangible and intangible property provided or to be provided by Provider or Provider’s Representatives in performance of its obligations hereunder, whether explicitly required by Company or reasonably inferable from the nature of such obligations.
“Effective Date” shall mean the date set forth on the Order as the date the Services are to commence and, if no such date is specified, then the date that Company issued the Order to Provider.
“Goods” shall mean tangible personal property to be supplied by Provider or Provider’s Representatives hereunder, including any packaging, shipping material, items or services necessary for, but incidental to, supply of such property. All Goods are Deliverables hereunder.
“Provider Materials” shall mean proprietary methodologies, tools, models, software, procedures, documentation, know-how and processes owned or licensed by Provider independent of this Agreement which (a) are utilized by Provider in performing its obligation under this Agreement, (b) have been clearly identified to Company in writing as proprietary to Provider and not to be property of Company, and (c) were not designed or otherwise created for Company or based on, or derived from, any Company Confidential Information.
“Reimbursable Expenses” shall mean those actual and necessary out-of- pocket costs, all without any increase or mark-up, that (i) Company may pay Provider in accordance with the terms hereunder; and (ii) Provider reasonably and properly incurs in performing its obligations hereunder; provided, however, such costs shall (a) with respect to travel, only include travel (I) that is more than 80 miles one-way from Provider’s office closest to where Provider’s obligations are to be performed, (II) by reasonable modes via least costly routes and economy classes of transportation, and (III) includes reasonable costs for meals and lodging incurred for travel directly in connection with Provider’s performance hereunder; and (b) not include travel time.
“Representatives” shall mean, with respect to a Party, such Party’s Affiliates and such Party’s and its Affiliates’ respective directors, officers, employees, agents and any other persons or entities (excluding the other Party or its Affiliates) who contribute to the performance of such Party’s obligations under this Agreement. For purposes of this Agreement, Provider’s Representatives shall include any and all Subcontractors and such Subcontractors’ directors, officers, employees and agents and Company’s Representatives shall include its or its Affiliates’ collaborators and licensees.
“Services” shall mean all necessary or required services, tasks, functions and other responsibilities and activities as set forth in, or reasonably inferable from, this Agreement, including the provision of Deliverables.
“Specifications” shall mean that portion of Company’s overall objectives, of which Provider’s performance hereunder is a part, consisting of the written requirements for Goods, Services, materials, equipment, systems, standards or workmanship, wherever located and whenever issued, for such overall objectives.
“Subcontractor” shall mean any person or entity that has been retained to perform all or a portion of Provider’s obligations hereunder.
2.1. Shipping Terms. Unless otherwise specified, Provider must ship all Goods FOB destination and include a packing slip, including the applicable Order number, on the outside of the container of each package shipped. If this Agreement is canceled in whole or in part because of Provider’s default, Company may retain or return any Goods received under this Agreement and without limiting Company’s other remedies, Provider must reimburse Company for (i) all costs of shipping or storing any returned Goods and (ii) any amount previously paid by Company for the returned Goods.
2.2. Inspection, Testing and Quality Control. Provider must have and maintain inspection and quality control systems appropriate for the supply of the Goods (including without limitation programs for documenting deviations, conducting investigations, and, with respect to Goods supplied hereunder, providing prompt notice to Company of deviations and investigations). All inspection records and other documents required by this Agreement or Applicable Laws must be kept intact and made available to Company upon reasonable request for a period of at least seven years after final delivery under this Agreement. If the Goods are raw materials, components or devices appropriate for use in manufacture of products intended for human use, Provider must notify Company prior to implementing changes to Subcontractors or changes to the manufacture of such Goods that are reasonably likely to affect the quality, safety, purity, identity or other critical attributes and allow Company to perform an assessment of Provider as necessary. Company may inspect or test the Goods at all reasonable times or places prior to final acceptance and Provider shall provide access to or, as appropriate, samples of Goods to support such. Company’s inspection or testing, or lack thereof, shall not relieve Provider of its obligation to furnish conforming Goods. Provider must make repairs or replacements arising from any test or inspection at its sole cost and expense within the lead-time for the Goods.
3.1. Change Orders. Company may, at any time and from time to time, make changes to Provider’s obligations under this Agreement, in each case as Company deems necessary (“Change Order”). Each Change Order shall be in writing and signed by Company. If Provider believes that the change is inequitable as to Compensation or schedule, Provider must submit within 10 days after receipt of a Change Order a written request to Company providing a detailed explanation of and reasons for any proposed adjustments to Compensation or Schedule, accompanied by adequate supporting documentation. If Company does not receive such a request in accordance with this Article, Provider shall be deemed to have waived its right to make such request. Provider shall meet its obligations under this Agreement while such request is pending. Provider will not implement any change with respect to any Service or Good provided hereunder except pursuant to a Change Order executed by Company.
3.2. Delays and Suspensions. Company may delay or suspend all or any part of this Agreement by providing written notice to Provider. Provider’s obligations to Company under this Agreement will remain in full force and effect despite the delay or suspension of this Agreement under this Section. If Company suspends this Agreement, Provider shall be entitled to compensation in accordance with the terms of this Agreement up to the date of suspension; provided, however, Company’s liability to Provider shall in no case exceed the compensation payable to Provider pursuant to this Agreement, as appropriately adjusted and without duplication of payment.
4.1. Compensation. Provider will perform its obligations under this Agreement for the Compensation set forth in the Order.
4.2. Invoices. Provider shall, submit to Company for payment a written invoice for performance of its obligations hereunder completed. Provider shall submit such invoice for payment one of the following addresses or such other address as Company may from time-to-time specify to Provider in writing. Email: email@example.com or Banner Industries of N.E., Inc. 1 Industrial Drive, Danvers MA 01923. Company may require that Provider also submit its invoices in electronic format. Provider shall include in each invoice all information reasonably requested by Company.
4.3. Disputes. If Company disputes any amount stated in an invoice, then Company will notify Provider in writing of the dispute and the basis therefor. Upon receipt of such notification, Provider shall submit a revised invoice stating only undisputed amounts. Upon resolution of disputed amounts, Provider shall submit an invoice pursuant to this Article for the amounts that the Parties mutually agree are no longer in dispute. Following receipt of an invoice stating only undisputed amounts (“Correct Invoice”), Company will pay Provider such amounts in accordance with this Article. Payment by Company does not constitute acceptance of Provider’s performance hereunder or any admission of liability.
4.4. Offset. Company, without waiver or limitation of any other rights or remedies, shall be entitled to deduct any and all amounts owed by Provider to Company from any amounts due or owing by Company to Provider in connection with this Agreement.
4.5. Currency Management. The currency or currencies to be used for invoicing and payment of the Compensation under this Agreement shall be the currency or currencies as stated in the Order (the “Contracted Currency”). If the performance of Services by Provider will take place in more than one country and in which different currencies are used, Company may elect to have a different Contracted Currency for each such country, which may be (i) the local currency for such country, (ii) the United States Dollar, or (iii) the Euro. No currency reconciliations shall be applied to any Contracted Currency.
4.6. Timing of Payments. Company shall pay Provider within 60 days following Company’s receipt of a Correct Invoice. Company shall have no obligation to pay Provider any amounts stated on an invoice other than a Correct Invoice.
4.7. Taxes, Customs Fees and Import/Export Duties. The Compensation stated herein is inclusive of all applicable employment-related, consumer, use and other similar taxes (except Value Added Tax and sales tax), levies, duties, fees, and assessments which are legally enacted on or before the Effective Date, whether or not then in effect. Provider, not Company, shall be responsible for any and all taxes on any and all income Provider receives from Company under this Agreement. Provider shall list any Value Added Tax or sales tax amounts for which Company is responsible under this Agreement as a separate line item in the applicable Correct Invoice.
5.1. General. Company may request additional information from Provider and/or any of Provider’s Representatives as may be reasonably necessary to verify compliance with the obligations, representations and warranties set forth in this Agreement including without limitation compliance with Applicable Laws and Company Requirements.
5.2. Quality and Facilities Audits. Company and its Representatives shall have the right during normal business hours and after reasonable advanced notice to conduct reasonable audits of the activities of Provider related to the Services and Provider’s performance thereof. At no additional cost to Company, Provider shall cooperate with any audit conducted hereunder and make available to Company or its Representatives for examination and duplication all documentation, data and information relating to the Services provided hereunder. Provider shall permit Company and its Representatives to inspect (i) the facilities where any Services are or will be performed; (ii) any equipment used or involved in the conduct of the Services; (iii) any records and source documents; and (iv) other relevant information necessary to determine whether the Services are being conducted in conformance with this Agreement and Applicable Laws.
6.1. Term. This agreement shall begin on the Effective Date and, unless an expiration date is expressly provided or this Agreement is terminated earlier pursuant to this Agreement, shall terminate upon completion of Provider’s performance obligations hereunder (“Term”).
6.2. Company’s Right to Terminate. Company shall have the right to terminate, in whole or in part, this Agreement (i) upon no less than 30 calendar days’ prior written notice to Provider specifying the date and extent of termination; (ii) immediately upon written notice to Provider for failure of Provider to materially comply with the terms and conditions of this Agreement; or (iii) as otherwise provided in this Agreement. In the event of any termination for cause by Company, Company reserves all of Company’s rights and remedies available in law or equity.
6.3. Provider’s Right to Terminate. Provider shall have the right to suspend performance of Services this Agreement in the event Company fails to pay a Correct Invoice within 60 days after receipt of notice of such failure from Provider (“Payment Default Notification”). Provider shall have the right to terminate this Agreement in the event Company fails to cure non-payment of a Correct Invoice within 60 days after a Payment Default Notification.
6.4. Obligations Upon Termination. Within 30 calendar days after the effective date of termination of this Agreement, Provider shall submit to Company a final invoice identifying any amounts Company may owe with respect to Services properly performed by Provider prior to the effective date of termination. Upon termination, Provider shall, in accordance with Company’s instructions, (i) preserve, as applicable, and turn over to Company all Deliverables, whether in finished or work in progress form, in the possession or control of Provider or any of its Representatives; and (ii) cooperate with Company in the orderly wind-down of the activities and, if Company elects to have the terminated obligations performed by another provider, cooperate with Company and such other provider in the orderly transfer of the Services. Immediately upon receiving notice of Company’s right to terminate, Provider shall cease incurring costs pertaining to the terminated Agreement and shall make all reasonable efforts to mitigate damages incurred by reason of such termination.
7.1. Ownership of Company Materials. All Company Materials shall be the sole and exclusive property of Company whether the Services to be performed are completed or not. Provider agrees to and hereby does assign, and shall cause its Representatives to assign, to Company or Company’s designee all right, title and interest in all Company Materials, including without limitation a work specially commissioned by Company, which is or is not protectable by copyright under Section 101 of the Copyright Act of 1976 (Title 17, United States Code). Provider shall ensure that, at no cost to Company, all of Provider’s Representatives that contribute to any Company Materials have agreed in advance in writing that all right, title and interest in such contributions is assigned to Company or Provider, and that Provider’s Representatives waive any droit moral or similar rights to object to modifications, adjustments or additions to their contributions.
7.2. Use of Company Materials. Company its Affiliates and their respective Representatives may use Company Materials, in whole, in part or in modified form, for any purpose without restriction and without further compensation to Provider. Provider or Provider’s Representatives shall not use Company Materials for any purposes other than as expressly set forth herein and to fulfill Provider’s obligations hereunder.
7.3. Transfer of Company Materials. Provider shall make all necessary disclosures, execute, acknowledge and deliver all instruments and perform all acts necessary or desired by Company to effectuate the provisions regarding proprietary rights set forth herein.
7.4. Provider Materials. The Parties acknowledge that in the performance of Provider‘s obligations hereunder, Provider or its Representatives may utilize Provider Materials. To the extent that any Provider Materials are incorporated into or otherwise required to use or exploit any Deliverable, Provider agrees to grant and hereby grants, and shall cause its Representatives to grant, to Company a perpetual, worldwide, irrevocable, fully paid-up, royalty-free, transferrable, sublicensable (through multiple tiers), non-exclusive license under such Provider Materials to use, execute, reproduce, display, perform, distribute, prepare derivative works of, and otherwise exploit all Deliverables provided, or required to be provided, by Provider to Company or its Affiliates pursuant to this Agreement.
7.5. Third Party Materials. If Company or any of its Affiliates are required to use any intellectual property rights of a third party (“Third Party Materials”) in order to receive the full benefit of any Deliverables, then Provider will (i) provide Company with prior notice, specifying in reasonable detail, the nature of the dependency on the Third Party Materials, its owner and the commercial availability of the intellectual property, and (ii) arrange for Company to obtain (for no additional cost or on such terms as may be acceptable to Company) a perpetual, worldwide, irrevocable, fully paid-up, royalty-free, transferrable, non-exclusive right and license to use Third Party Materials.
7.6. No Implied Rights. Except as expressly set forth in this Agreement, Company shall not be deemed to have granted Provider or any Provider Representative (by implication, estoppel or otherwise) any right, title, license or other interest in or with respect to any Company Materials.
8.1. Confidential Information. Company or its Representatives may disclose to Provider or its Representatives, orally or in writing, or Provider or its Representatives may otherwise obtain, through observation or otherwise, Confidential Information. Provider must, and must cause its Representatives to: (i) maintain the confidentiality of and prevent the unauthorized disclosure of Confidential Information except as expressly permitted hereunder; (ii) protect all Confidential Information from disclosure through the use, maintenance, compliance with and enforcement of commercially reasonable technological, physical, and administrative controls; (iii) restrict the use of Confidential Information to the intended purpose of this Agreement; and (iv) only disclose Confidential Information to Provider’s Representatives to the extent necessary or required for performance of obligations hereunder, provided that, prior to such disclosure, Provider or Provider’s Representative (as the case may be) has clearly and completely conveyed the requirements of this Section to Provider’s Representatives and ensured such requirements are understood and followed. If requested by Company, Provider shall secure written commitments from Provider’s Representatives evidencing their agreement to comply with the confidentiality requirements of this Agreement.
“Confidential Information” shall mean any and all information and materials of or regarding Company or its Affiliates or their respective licensees or collaborators disclosed by or on behalf of Company or its Affiliates or any of their respective Representatives, licensees or collaborators to Provider or any of Provider’s Representatives, including without limitation trade secrets, existing and future products, designs, business plans, business opportunities, finances, research, development, know-how, Company Requirements, Company Materials and other business, operational or technical information. As between Provider and Company, Company is the sole and exclusive owner of Confidential Information. To the extent third parties disclose to Provider or its Representatives any Confidential Information in furtherance of this Agreement, the obligations set forth in this Section (Confidentiality) shall apply to the same extent as if Company had disclosed such Confidential Information directly to Provider or its Representatives.
The obligations set forth in this Section shall not apply to any portion of Confidential Information which (i) is or later becomes generally available to the public by use, publication or the like, through no act or omission of Provider or its Representatives; or (ii) Provider or its Representatives possessed prior to the Effective Date without being subject to an obligation to keep such Confidential Information confidential. In the event Provider becomes legally compelled to disclose any Confidential Information, except to the extent prohibited by law, it shall promptly provide Company with notice thereof prior to any disclosure, shall use its best efforts to minimize the disclosure of any such Confidential Information, and shall cooperate with the Company should Company seek to obtain a protective order or other appropriate remedy.
Provider must return to Company or if instructed by Company, destroy all Confidential Information that was received in, or reduced to by Provider or is Representatives, tangible form, including without limitation all copies, translations, interpretations, derivative works and adaptations thereof, promptly upon request by Company.
9.1. Compliance with Applicable Laws and Company Requirements. Provider represents and warrants that it shall perform and shall cause Provider Representatives to perform its obligations under this Agreement in compliance with all Applicable Laws and Company Requirements.
9.2. Accepted Practice. Provider shall perform and shall cause Provider Representatives to perform its obligations in a professional, ethical and competent manner, using the degree of skill, diligence, prudence, timeliness, and foresight which would reasonably and ordinarily be expected from skilled and experienced professionals engaged in the provision of, and activities comprising, the Services (“Accepted Practice”).
9.3. Export Control. Provider and its Representatives currently do not intend to use any person to supply Services hereunder who is a citizen of or has permanent residency in any country listed in Country Group E:1 (15 C.F.R. Part 740, Supplement No. 1) (and any amendments thereto or successor lists); and Provider shall not, and shall cause its Representatives not to, use any such person to supply Services hereunder without Company’s prior written consent which may be withheld in Company’s sole discretion.
9.4. Employment Law. Without limiting the generality of Provider’s representation and warranty regarding performance in compliance with Applicable Laws and Company Requirements), for any performance required under this Agreement being performed in the United States of America and/or its territories, Provider agrees that this Agreement shall be performed in compliance with the following, if applicable to Provider: the employee notice and related obligations found at 29 C.F.R. Part 471, Appendix A to Subpart A, Title VII of the Civil Rights Act of 1964; sections (1) and (3) of Executive Order No. 11625 relating to the promotion of Minority Business Enterprises; 41 C.F.R. §§ 60-1.4(a); Americans with Disabilities Act; Age Discrimination in Employment Act; Fair Labor Standards Act; Family Medical Leave Act; and all corresponding implementing rules and regulations, all of which, including without limitation the contract clauses required and regulations promulgated thereunder, are incorporated herein by reference. Provider shall hire, train, promote, compensate, transfer and administer all employment practices and terms and conditions of employment in compliance with Applicable Law and without discrimination on the basis of race, religion, color, sex (including pregnancy, childbirth, or related medical conditions), sexual orientation, gender identity, age, national origin, physical or mental disability, genetic information or covered veteran status.
9.5. Gratuities; Debarment. Provider and its Representatives (i) will not offer or give to Company or any of its Representatives gifts, entertainment, payments, loans or other gratuities in order to or that may influence the award of a contract or obtain favorable treatment under any agreement with Company or its Representatives.
9.6. Foreign Corrupt Practices Act and Anti-Corruption. Provider represents, warrants and covenants, as of the Effective Date to and through the expiration or earlier termination of this Agreement, (1) that Provider, and, to the best of its knowledge, Provider’s Representatives, owners, or other third parties acting for or on Provider’s behalf (collectively, “Extended Representatives”), shall not, directly or indirectly, offer, pay, promise to pay, or authorize such offer, promise or payment, of anything of value, to any individual or entity for the purposes of obtaining or retaining business or any improper advantage in connection with this Agreement, or that would otherwise violate any Applicable Laws, rules and regulations concerning or relating to public or commercial bribery or corruption (“Anti- Corruption Laws”) and (2) that Provider’s books, accounts, records and invoices related to this Agreement or related to any work conducted for or on behalf of Company or its Affiliates are and will be complete and accurate. Without limiting other rights or remedies, Company has the right to terminate this Agreement (a) if Provider or Extended Representatives fails to comply with the Anti-Corruption Laws or with this provision or (b) if Company has a good faith belief that Provider or Extended Representatives has violated, intends to violate, or has caused a violation of the Anti-Corruption Laws. If Company requires that Provider complete a compliance certification, without limiting other rights or remedies, Company may also terminate this Agreement if Provider (1) fails to complete a compliance certification, (2) fails to complete it truthfully and accurately, or (3) fails to comply with the terms of that certification.
9.7. U.S. Economic Sanctions. Neither Provider nor its Representatives are: (a) listed on the Office of Foreign Assets Control’s (“OFAC”) “Specially Designated National and Blocked Person List” (“SDN List”) or otherwise subject to any sanction administered by OFAC (“U.S. Economic Sanctions”) or (b) owned, controlled by or acting on behalf of, directly or indirectly, any person, entity, or government listed on the SDN List or otherwise subject to any U.S. Economic Sanction. Provider and its Representatives have not and will not engage directly or indirectly in any transaction on behalf of Company or its Affiliates that could potentially violate applicable U.S. Economic Sanctions.
9.8. Disclosure Laws. Notwithstanding anything to the contrary in this Agreement, Provider acknowledges and agrees that (i) Company is permitted to publicly disclose information regarding this Agreement to comply with Applicable Laws (including without limitation the Physician Payment Sunshine Act (a provision of the Patient Protection and Affordable Care Act)) (collectively, “Disclosure Laws”) and (ii) this information may include without limitation payments, or other transfers of value, made on behalf or at the request of Company to physicians, teaching hospitals, and other persons or entities that are the subject of the Disclosure Laws (each a “Disclosure Subject”). Provider agrees to promptly respond to, and cooperate with, reasonable requests of Company regarding collection of information regarding and compliance with Disclosure Laws. Provider shall collect and, no later than 30 days after each calendar quarter during the Term and no later than 30 days after the termination or expiration of the Agreement, submit in a format reasonably requested by Company the following information for each Disclosure Subject that, in connection with or as a result of performance of the Services, received payments or other transfers of value in the calendar year prior to the year in which such submittal is to be made hereunder: (a) the amounts, dates, and description of payments made to, or other transfers of value to, each Disclosure Subject; (b) the name, address, specialty(ies), and, if applicable, National Provider Identifier number of each Disclosure Subject; and (c) a description of the Goods or Services provided by each Disclosure Subject in return for such payments or transfers of value.
9.9. Provider Conduct. Company shall have the right, at any time, to terminate, in whole or in part, this Agreement immediately upon written notice to Provider if, at any time during the Term of this Agreement, Provider and/or Provider’s Representatives (a) if the Services include Select Services (defined below), makes any public statement or commits any public act disparaging of Company or Company’s products, or (b) if the Services include Select Services, acts or fails to act (or it becomes known during the Term that prior to the commencement of the Term, Provider and/or Provider’s Representatives acted or failed to act) in a way that brings Provider, Provider’s Representatives, Company or Company’s products into public disrepute or ridicule, or which insults or offends community standards, or which might injure or reflect badly on Company or Company’s products (and, for avoidance of doubt, termination pursuant to this Section shall be a termination for cause). In the event of any termination based on this Section, without limiting any other rights or remedies, (i) any amounts payable by Company hereunder shall be subject to reduction and offset for any damages caused to Company resulting from Provider’s and/or Provider’s Representatives’ conduct that is contrary to this Section, (ii) to the extent that Company pre-paid any amounts (e.g., paid for Services before they were rendered or completed, paid a retainer, or made a payment at the beginning of the year for the entire year) to Provider, Provider will promptly reimburse the applicable pro-rated amount to Company, and (iii) if the Services include Select Services, (A) upon notice to Provider, Company may suspend Provider’s performance of all or any part of the Services during Company’s investigation of statements or acts of Provider that Company, acting in good faith, reasonably suspects could be of the nature set forth in subsections (c) or (d), above and (B) Company may demand that Provider, and if so demanded, Provider shall, cease making such statements or engaging in such conduct. The term “Select Services” shall mean Services that include the following: Lobbying; Provider or its Representatives acting as Company’s or one or more of its Affiliates’ agent; Provider or its Representatives making statements on behalf of, or acting as a spokesperson for, Company or its Affiliates or making statements regarding Company or its Affiliates’ human therapeutic products, campaigns or capabilities.
10.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party as follows: (i) The person signing this Agreement on behalf of such Party has the power and authority to execute this Agreement and to carry out the transactions contemplated herein; the consummation of the transactions contemplated herein have been duly authorized by the requisite action on the part of such Party; (iii) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein do not and shall not constitute (a) a material breach, conflict with or default under any other agreement, whether written or oral, by which such Party or any of its material assets are bound; or (b) an event that would, with notice or lapse of time, or both, constitute such a breach, conflict or default; and (iv) Each Party is financially solvent, able to pay its debts as they mature, and possesses sufficient working capital to complete its obligations hereunder.
10.2. Representations and Warranties of Provider. Provider represents and warrants to Company as follows: (i) Provider and Provider’s Representatives are fully and properly licensed, qualified, experienced, equipped, organized and financed to perform all of Provider’s obligations hereunder; (ii) Provider’s performance of its obligations and supply of Services will meet all Applicable Laws and comply with Company Requirements, meet the requirements set forth in the Order, conform with all applicable Specifications, be free from material defects, errors and deficiencies, and, to the extent required hereunder, meets current Good Manufacturing Practices. Deliverable infringes any patent, copyright, trade secret or other proprietary right of any third party, without limiting Company’s other rights and remedies hereunder, Provider, at its sole expense, shall timely undertake to procure for Company the right to continue such use of the infringing Deliverables. If such right cannot be timely procured, then Provider shall, at Provider’s sole expense, (i) modify such infringing Deliverables to render them non-infringing, but functionally equivalent, as determined by Company in its sole discretion; (ii) substitute such infringing Deliverables with replacements that are non-infringing, but functionally equivalent, as determined by Company in its sole discretion; or (iii) if Provider using Provider’s best efforts is unable to accomplish item (i) or (ii) above, refund to Company amounts actually paid by Company for the infringing Deliverables.
10.3. Term for Goods Warranties. Except as specifically set forth herein, any warranty corresponding to Provider’s performance hereunder, or a portion thereof, including without limitation performance under its warranty obligations, shall continue for a period of the longer of (i) 18 months following completion of such performance and Company’s written acceptance of such performance or (ii) for Provider’s standard warranty period. Notwithstanding the foregoing, this term of warranties shall not limit the duration of any applicable third party warranties.
10.4. Remedies for Breach of Goods Warranties. If Company notifies Provider of any breach of warranty during the warranty period, Provider will, at Provider’s cost, remedy the breach of warranty, or repair or replace the Goods that fail to comply with Provider’s warranty. This Section sets forth the sole and exclusive warranties for Goods provided hereunder. EXCEPT FOR THOSE WARRANTIES OF THIRD PARTIES ASSIGNED TO COMPANY PURSUANT TO THE AGREEMENT, ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, AND ANY EXPRESS WARRANTIES GENERALLY GIVEN BY PROVIDER WITH RESPECT TO THE APPLICABLE GOODS OR SERVICES, THE WARRANTIES SET FORTH IN THIS ARTICLE ARE IN LIEU OF ANY OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, OR ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. Notwithstanding the foregoing, the parties acknowledge and agree that this Article shall not limit any other remedies available to Company under this Agreement (including without limitation remedies for personal injury, property damage, death, violation of Applicable Laws or infringement).
11.1. General Indemnity. Provider shall, to the fullest extent permitted by law, indemnify, defend and hold harmless Company, its Affiliates and Representatives and their directors, officers, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all suits, actions, legal or administrative proceedings, claims, liens, and demands brought or maintained by one or more third parties (“Claims”) for damages, liabilities, losses, costs, fees, penalties, fines and expenses (including without limitation reasonable attorneys’ fees and expenses (both Company’s in-house and outside), and costs of investigation, litigation, settlement, and judgment) (including personal injury or death of persons, collectively, “Losses”) to the extent the Losses arise out of Provider’s or its Representatives’ actual or alleged breach of Provider’s material representations, covenants or warranties contained herein (it being acknowledged and agreed that breaches of representations, covenants and warranties regarding confidentiality and compliance with Applicable Laws are material); provided, however, Provider shall have no obligation to indemnify, defend, or hold harmless the Indemnified Parties to the extent the Claim arises out of any Indemnified Party’s negligence or intentional wrongdoing.
11.2. Defense and Resolution of Claim. Upon Company’s request, Provider, at its expense, shall assume control of the defense and resolution of each Claim using legal counsel reasonably approved by Company and keep Company informed of the progress of such defense and resolution. Provider and its legal counsel shall cooperate with Company and its legal counsel during the pendency of each Claim. If Company, in its sole discretion, determines that Provider has failed to (i) defend a Claim to Company’s reasonable satisfaction or (ii) take timely and reasonable steps to resolve a Claim, then Company shall have the right upon prior written notice, but not the obligation, to assume control of the defense and resolution of such Claim, and Provider shall be bound by the results obtained by Company with respect to the Claim. Provider shall not confess judgment or settle, compromise or resolve any Claim without the written consent of Company.
11.3. Waiver of Consequential Damages. Except for any liquidated damages set forth in this Agreement, the company and it’s respective Affiliates shall not be liable to the provider or its respective Affiliates for any loss of profit or potential profit or for any incidental, indirect, special or liability, negligence or other theory of law.
11.4. Insurance. Provider shall maintain adequate levels and types of insurance coverage appropriate to its business and profession to cover its indemnity obligations hereunder, as required by Applicable Laws, and consistent with Accepted Practice, with such coverage levels and types to include at a minimum and without limitation insurance required by Applicable Laws with respect to Provider’s status as an employer, workers’ compensation, comprehensive general liability, employer’s liability, and automobile liability. Provider’s insurance coverage must be primary coverage. All insurance coverage must be in full force and effect at all times during performance of Provider’s obligations hereunder. At Company’s request, Provider must submit to Company a certificate of insurance on the ACORD form evidencing the above coverages. Such obligations shall be in addition to and in no way be construed to limit the indemnification obligations set forth herein.
All notices pursuant to this Agreement must be in writing, referencing the Order number associated herewith, and delivered personally or sent by courier, certified mail (return receipt requested) addressed to the Parties at their respective address set forth in the Order. Either Party may specify a different address to receive notices by providing a notice in accordance with this Section. Notices sent by courier or certified mail are effective upon receipt or five days after dispatch, whichever occurs first.
13.1. Background Checks. In order to (i) receive an unrestricted (non- visitors) access badge to Company’s or its Affiliates’ premises; (ii) drive Company-owned or leased vehicles or transport Company personnel; or (iii) access or use any Company Systems, Provider’s Representatives must comply with Company’s policies and procedures, which may require, among other things, (a) Provider first providing to Company a certification, in form and content specified by Company, of certain background information for such Provider’s Representative and (b) such Representative first executing agreements or other documents, in form and content specified by Company, addressing among other things confidentiality, proprietary rights, adherence to Company policies, legal rights and remedies between such Representative and Company and its Affiliates. Provider shall perform, or shall use an outside agency to perform, the background check and shall provide all notifications to Provider’s Representatives required by Applicable Laws.
13.2. Contractual Relationship. Each Party is engaged in an independent business and not as an agent, employee, partner or joint employer of the other Party. The Parties acknowledge and agree that neither Party shall have responsibility or liability for treating the other Party’s Representatives as employees for any purpose. Neither Party nor any of its Representatives shall be eligible for coverage or to receive any benefit under the other Party’s provided workers’ compensation, occupational health services, employee plans or programs or employee compensation arrangement, including without limitation any and all medical and dental plans, bonus or incentive plans, retirement benefit plans, stock plans, disability benefit plans, life insurance and any and all other such plans or benefits.
13.3. Modifications. Except as set forth herein, no amendments or other modifications to this Agreement shall be binding unless in writing and signed by the Parties.
13.4. No Exclusivity. Nothing contained herein shall (i) obligate Company or any Company Affiliate to any exclusive relationship with Provider; (ii) restrict or preclude Company or any Company Affiliate from contracting with any competitor of Provider; or (iii) obligate Company or any Company Affiliate to purchase any minimum amount of tangible or intangible Goods or Services from Provider.
13.5. Assignment. This Agreement may not be assigned or otherwise transferred by any Party without the prior written consent of the other Party; provided, however, that either Party may, without such consent, but upon prior written notice, assign its rights and obligations under this Agreement in connection with a merger, consolidation or sale of substantially all of the business to which this Agreement relates. Any purported assignment or transfer in violation of this Section shall be void. This Agreement shall be binding on the Parties and their respective successors and permitted assigns.
13.6. Governing Law and Venue. If legal action is commenced, Provider will continue to diligently perform its obligations under this Agreement. This Agreement is governed and shall be construed and enforced in accordance with laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to its principles or laws regarding conflicts of laws.
13.7. Publicity. Except for the purposes of performance hereunder, without Company’s prior written consent, which may be withheld at Company’s sole discretion, Provider and its Representatives shall not use (including without limitation use in any publicity, advertising, media release, public announcement or other public disclosure) (i) any name, acronym, symbol or other designation by which Company or its Affiliates or any of their respective human therapeutics, products or other materials is known or (ii) the names of any agent or employee of Company or its Affiliates (each a “Prohibited Use”). Provider shall immediately notify Company in each event of a Prohibited Use and, at Provider’s sole cost and expense, without limiting Company’s rights and remedies hereunder, Provider shall, and shall cause its Representatives, to immediately cease and desist each such Prohibited Use and take such other actions as requested by Company.
13.8. Waiver. No action or inaction by either Party shall be construed as a waiver of such Party’s rights under this Agreement or as provided by law. The failure or delay of any Party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver of such right. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
13.9. Severability. In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held illegal, invalid or unenforceable, in whole or in part, by a competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with Applicable Laws. The legality, validity and enforceability of the remaining provisions shall not be affected thereby and shall remain in full force and effect.
13.10. Survival. Provider’s representations, warranties and obligations under any provisions set forth in this Agreement related to ownership of Deliverables, infringement, confidentiality, publicity, governing law and indemnification or which contemplate performance or observance subsequent to termination or expiration of this Agreement shall survive such expiration or termination.
13.11. Third-party Beneficiaries. Except as expressly provided for in this Agreement, (i) this Agreement is entered into solely between, and may be enforced only by, Company and Provider; and (ii) this Agreement shall not be deemed to create any rights in third parties, including without limitation Subcontractors, or to create any obligations of a Party to any such third parties.
13.12. Remedies Cumulative. Unless otherwise expressly provided hereunder, no remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative, in addition to, and not in lieu of any other remedies available at law or in equity.
13.13. Headings. Article and Section headings are for reference purposes only and shall not be considered in the construing of this Agreement.
13.14. Execution. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document, binding on all parties notwithstanding that each of the parties may have signed different counterparts. Facsimiles or scanned copies of signatures or electronic images of signatures shall be considered original signatures unless prohibited by Applicable Laws.
13.15. Force Majeure. A Party shall not be liable for any delay in the performance of its obligations under this Agreement if and to the extent such delay is caused, directly or indirectly, by acts of God, war, riots, terrorism, embargos, acts of public enemy, acts of military authority, earthquake, fire or flood (“Force Majeure Event”); provided that a Party may not claim relief for a Force Majeure Event under this Section unless each of the following conditions has been satisfied: (i) the party claiming delay by Force Majeure Event (the “Delayed Party”) is without fault in causing such delay; (ii) such delay could not have been prevented by reasonable precautions taken by the Delayed Party, including, without limitation, the use of alternate sources, or workaround plans; (iii) the Delayed Party uses commercially reasonable efforts to recommence performance of such obligations whenever and to whatever extent possible following the Force Majeure Event; and (iv) the Delayed Party immediately notifies the other Party by the most expedient method possible (to be confirmed in writing) and describes at a reasonable level of detail the circumstances causing the delay. All obligations of both Parties shall return to being in full force and effect upon the earlier to occur of (i) the passing of the Force Majeure Event or (ii) the failure of the Delayed Party to satisfy the conditions and/or perform its covenants under this Section.
13.16. Construction. The Parties acknowledge that each Party is of equal bargaining strength, has actively participated in the preparation and negotiation of this Agreement. Each Party is entering into this Agreement on its own free will and is not acting under duress or coercion of any kind or nature whatsoever. Each Party has had the right and opportunity to consult with legal counsel of its choice in connection with this Agreement; and each Party has either done so, or has voluntarily declined to do so free from duress or coercion. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement, any portion hereof, or any Modifications hereto.
13.17. Interpretation. Except where the context expressly requires otherwise, (a) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (b) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (c) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or”, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (f) provisions that require that a Party or the Parties “agree,” “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and, unless expressly provided otherwise, in writing, whether by agreement, letter, otherwise (but excluding e-mail and instant messaging).