ANTHEIA, INC. STANDARD TERMS AND CONDITIONS OF SALE
ALL SALES OF PRODUCTS (“PRODUCTS”) MADE BY OR ON BEHALF OF ANTHEIA, INC. AND ITS AFFILIATES (“SELLER“) TO THE BUYER SET FORTH ON THE PURCHASE ORDER ISSUED PURSUANT TO THE QUOTATION (“BUYER“) ARE EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS AND CONDITIONS”). FOR PURPOSES OF THESE TERMS AND CONDITIONS, EACH OF BUYER AND SELLER MAY BE REFERRED TO HEREIN AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES”. THE QUOTATION (THE “QUOTATION”) AND THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER AND SUPERSEDE ALL PREVIOUS OR CONTEMPORANEOUS NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. SELLER WILL NOT BE BOUND BY ANY TERMS OF BUYER’S PURCHASE ORDER OR OTHER DOCUMENT THAT ARE ADDITIONAL OR INCONSISTENT WITH THESE TERMS AND CONDITIONS, AND ALL SUCH TERMS ARE HEREBY REJECTED AND WILL HAVE NO FORCE OR EFFECT. THESE TERMS AND CONDITIONS MAY ONLY BE AMENDED OR WAIVED BY A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER REFERENCING THESE TERMS AND CONDITIONS.
1. Terms and Conditions.
Buyer’s submission of a Purchase Order for the purchase of Products, whether in response to a Quotation, sales order, or any other Seller document, will be deemed an acceptance of and agreement to these Terms and Conditions to the exclusion of any other terms or conditions contained in and/or referenced by such Purchase Order or other document, whether or not specifically accepted by Seller in writing or otherwise, and notice of objection to, and rejection of any such other terms or conditions is hereby given. Any acceptance by Seller of any offer or counteroffer from Buyer is expressly conditioned on Buyer’s assent to and acceptance of these Terms and Conditions.
2. Order and Acceptance.
All orders for Products shall be made by written purchase order by the Seller (any, a “Purchase Order”). No Purchase Order shall be binding upon Seller until accepted by Seller in writing, in Seller’s sole discretion, and Seller shall have no liability to Buyer with respect to Purchase Orders that are not accepted. Buyer shall submit Purchase Orders to Seller in accordance with Seller’s then current lead times.
3. Delivery, Shipping, Risk of Loss.
Seller will use reasonable efforts to deliver Products at the times specified in Seller’s acceptance of Buyer’s Purchase Order, provided, however, that all delivery dates are estimates only and deliveries may be in installments. All Products delivered hereunder will be suitably packed for shipment in Seller’s standard containers and shipped CPT (Carriage Paid To; Incoterms 2020) to a named port or terminal specified in Buyer’s Purchase Order (“Delivery Point“), at which time risk of loss from any casualty and title pass to Buyer. All freight, insurance and other shipping expenses from the Delivery Point will be borne by Buyer.
4. Acceptance of Products.
Buyer shall accept or reject Products within seven (7) calendar days after receipt for failure to substantially conform to Seller’s published specifications. If Buyer fails to notify Seller in writing of its rejection and a detailed explanation of any alleged deficiencies within such period, Buyer will be conclusively deemed to have irrevocably accepted the Products. Upon receipt of any rejection notice from Buyer, Seller shall review and advise Buyer to return or destroy such non-conforming Product. Buyer shall not return to Seller or destroy any non-conforming Product unless instructed to do so by Seller. If instructed by Seller to do so, Buyer must return to Seller or destroy, in accordance with Seller’s instructions, any such non-conforming Products within 60 calendar days after receipt of such instruction from Seller. Seller may conduct further examination that such alleged deficiencies actually exist and were not caused by accident, neglect, misuse, alteration by or of Buyer.
Prices for Products shall be as listed in the Quotation to which these Terms and Conditions are attached (“Purchase Price“). If the Quotation has expired, Seller has the right to revise the Purchase Price without notice to Buyer. Price increases will apply to all Purchase Orders received after the effective date of the price revision. The Purchase Price is exclusive of all customs, duties, taxes and tariffs and all national, state, and local taxes, fees or charges now in force or enacted in the future. Any such tax, fee or charge imposed by any governmental authority on the transaction between Seller and Buyer will be paid by the Buyer in addition to the Purchase Price. If Seller is required to pay any tax, fee or charge at the time of sale or thereafter, Buyer will promptly reimburse Seller therefor.
6. Payment Terms.
Payment terms shall be in accordance with the Quotation unless otherwise designated by Seller. Buyer will make payments in United States dollars by check or wire transfer to an account designated by Seller. Invoices not paid when due will bear interest at a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. If Seller undertakes collection or enforcement efforts, Buyer shall be liable for all costs thereof, including attorney’s fees.
7. Proprietary Rights.
Seller retains all proprietary rights in and to all intellectual property, including composition, formulation and other data pertaining to the Products. The sale of Products by Seller to Buyer does not grant to, convey or confer upon Buyer, a license, express or implied, under any patent right, copyright, or other intellectual property right of Seller covering or relating to any use other than is consistent with the labeling of such Product.
Buyer shall not disclose the terms of the Quotation or these Terms and Conditions to any other person or entity outside its organization and affiliates except to its legal counsel, financial advisors, or auditors. All specifications, samples, and other data furnished by Seller to Buyer will be treated as Seller’s confidential information, will remain Seller’s property, and will be returned to Seller upon request. -2-
9. Limited Warranty.
For Products purchased hereunder, Seller warrants that the Products (i) meet all specifications outlined in Supplier’s written documentation and will function as described therein; (ii) comply with all applicable laws, codes, and regulations; (iii) do not infringe or violate any patent, trademark, copyright, or other intellectual property right of a third party; and (iv) have been properly stored, labeled, and shipped by Seller in accordance with industry standards and regulatory requirements including, but not limited, to the U.S. Food and Drug Administration and/or the European Medicines Agency. Products which have been subject to abuse, misuse, accident, alteration, neglect, improperly stored or handled are not covered by warranty. Seller makes no warranty against any failure or defect, material or otherwise, of the Product related to, caused by, or exacerbated by any actions or inactions of Buyer or its employees.
10. Limited Remedy.
Seller’s entire liability and Buyer’s exclusive remedy is limited to replacement of Products or refund of the Purchase Price at Seller’s sole option.
11. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY STATED IN SECTION 9, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Either Party may terminate a Purchase Order immediately upon written notice to the other Party for: (a) the insolvency, assignment for the benefit of creditors, involuntary filing of a petition order or other decree in bankruptcy, or commencement of any proceeding for liquidation or reorganization of the other Party, (b) failure by the other Party to comply with applicable laws or regulations, and (c) the material breach by the other Party that is not cured within thirty (30) calendar days of receiving a notice thereof from the terminating Party. Upon termination of a Purchase Order, Seller shall invoice Buyer for, and Buyer shall pay for (i) all completed Products previously delivered and not yet paid, (ii) all in-process Products not yet delivered, and (iii) all other non-cancellable costs and expenses incurred by Seller prior to the effective date of the termination.
Buyer may not cancel or reschedule any Purchase Order without Seller’s prior written approval. If any Purchase Order is cancelled or rescheduled for any reason, then Buyer shall, in addition to any fees due pursuant to Section 12 above, pay Seller the cancellation and rescheduling fees set forth below: Number of days prior to scheduled delivery date when cancellation or rescheduling notice is received by Seller Charge as a percentage of the corresponding Purchase Price of the Products More than or equal to 120 calendar days 0% Between 90 and 119 calendar days 25% Between 60 and 89 calendar days 50% Between 30 and 59 calendar days 75% Less than 30 calendar days 100%
Number of days prior to scheduled delivery date when cancellation or rescheduling notice is received by Seller
Charge as a percentage of the corresponding Purchase Price of the Products
14. Buyer Indemnification.
Buyer shall defend, indemnify, and hold harmless Seller from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any claims, suits, or proceedings arising out of or relating to the use of the Products, unless caused by the gross negligence or willful misconduct of Seller solely.
15. Limitation of Liability.
Seller shall not be liable for any loss, damages or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Seller, including but not limited to, pandemic, epidemic, supplier delay, force majeure, act of God, labor shortage, labor unrest, fire, explosion or earthquake. Without limiting the foregoing, in no event shall Seller’s liability and Buyer’s remedies arising out of or related to the Products, exceed the Purchase Price paid by Buyer for the Products giving rise to such liability. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR BUSINESS OPPORTUNITIES OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SELLER SHALL NOT BE LIABLE FOR COSTS AND DAMAGES ARISING OUT OF (A) ANY ALTERATION, MODIFICATION, OR IMPROVEMENT TO THE PRODUCT MADE BY BUYER OR A THIRD PARTY, OR (B) ANY USE FOR A PURPOSE OR APPLICATION FOR WHICH THE PRODUCT IS NOT INTENDED.
Buyer shall maintain adequate levels and types of insurance coverage in amounts required by applicable state law, as is appropriate to its business, and as is standard and customary in the industry, including, without limitation, professional, general, or product liability. -3-
No representations or statements, other than those expressly set forth herein, were relied upon by the Parties in entering into these Terms and Conditions. No modification or waiver of, addition to, or deletion from, these Terms and Conditions shall be effective unless reduced to writing and signed by duly authorized representatives of the Parties. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of California without regard to its conflicts of law principles. Any dispute arising out of these Terms and Conditions shall be brought in, and the Parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Santa Clara County, California. Failure or delay by either Party in exercising any right hereunder shall not operate as or be deemed a waiver of such right or of any other right hereunder, except for violations which, after discussion and mutual agreement by the Parties, are waived in writing. If any provision of the Quotation or these Terms and Conditions is held to be invalid or unenforceable, the remainder of the Quotation and these Terms and Conditions shall continue in full force and effect and will be interpreted to reflect the original intent of the Parties.