Purchase Order Terms and Conditions
Last updated: August 4, 2017
“NanoString” shall refer to NanoString Technologies, Inc. “Seller” shall refer to the vendor designated on the face of the purchase order issued by NanoString and shall also include Seller’s employees, subcontractors, independent contractors and all other persons performing any type of work under the purchase order.
1. ACCEPTANCE OF PURCHASE ORDER. NanoString has communicated to Seller a purchase order to purchase a quantity of goods or services at a defined price and may have also included particular shipping instructions or other specifications required by NanoString in such purchase order. The purchase order issued by NanoString to Seller is subject to and expressly conditioned upon the terms and conditions contained herein and upon Seller’s assent thereto, and these terms and conditions are incorporated by reference into NanoString’s purchase order to Seller. The terms contained on the face of the purchase order and all of the terms and conditions contained herein will be controlling, and any additional and/or inconsistent terms and conditions set forth in any quotation from Seller, or any acknowledgment or acceptance documents requested from and/or provided by Seller, are expressly objected to and rejected. No variation of these terms and conditions will be binding upon NanoString unless agreed to in writing and signed by an authorized representative of NanoString. If a purchase order has been issued by NanoString in response to an offer or quotation by Seller, and these terms and conditions are additional to or different from any terms of such offer, then the issuance of the purchase order shall constitute an acceptance of such offer subject to the express condition that Seller assent to these additional and different terms and conditions. Any performance or acceptance of payment by Seller with respect to the purchase order will be deemed acceptance of these terms and conditions and the specifications contained in the purchase order.
2. PRICE. The prices set forth in any purchase order shall not be increased without NanoString’s prior written consent. If a price is not stated for any goods and/or services in any purchase order, Supplier shall invoice such goods and/or services at their then current list prices less any applicable price discounts. If, at any time during the performance of any purchase order, Supplier shall quote or sell, at lower net prices, similar goods and/or services under similar conditions and (as to goods) in similar quantities, such lower prices shall be substituted for the prices identified in said purchase order.
3. INVOICES. Seller will submit invoices showing the following information: purchase order number, item number, description of item, size of item, quantity of item, unit prices, each applicable tax, extended totals and any other information specified elsewhere herein. Payment of invoice will not constitute acceptance of goods and will be subject to adjustment for errors, shortages, defects in the goods or other failure of Seller to meet the requirements of the purchase order. NanoString may at any time set off any amount owed by NanoString to Seller against any amount owed by Seller or any of its affiliated companies to NanoString.
4. OVERSHIPMENTS. NanoString will pay only for maximum quantities ordered. Over-shipments will be held by NanoString at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense.
5. PACKING AND SHIPMENT. No charge shall be allowed for handling, packing, crating, drayage or storage without written permission of NanoString. Unless otherwise specified, Seller will package and pack all goods in a manner that is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular goods, (iii) in accordance with I.C.C. regulations, and (iv) adequate to insure safe arrival of the goods at the named destination. Seller will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due date or dates shown unless NanoString has given prior written consent. Unless otherwise specifically provided on the face of the purchase order, the goods ordered hereunder will be delivered F.O.B. destination.
6. WARRANTY. Seller warrants that all goods delivered will (i) be free from defects in workmanship, material, and manufacture; (ii) comply with the requirements of the purchase order, including any drawings or specifications incorporated herein or samples furnished by Seller; (iii) where design is Seller’s responsibility, be free from defects in design and (iv) be in compliance with all applicable laws and regulations. Seller further warrants that all goods purchased hereunder will be of merchantable quality and will be fit for the purposes intended by NanoString to the extent disclosed to NanoString. The foregoing warranties constitute conditions to the purchase order. They are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by NanoString. All warranties run to the benefit of NanoString and its resellers and customers. NanoString’s approval of Seller’s materials or design will not relieve Seller of any warranties. If any goods delivered do not meet the warranties specified herein or otherwise applicable, NanoString may, at its option, (i) require Seller to correct any defective or nonconforming goods by repair or replacement at no cost to NanoString or (ii) return such defective or nonconforming goods to Seller at Seller’s expense and recover from Seller the order price thereof.
7. INSPECTION AND ACCEPTANCE. Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance at NanoString’s place of business within a reasonable time after delivery. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of the purchase order, NanoString will have the right to reject it, to require its correction or to accept it with an adjustment in price. Any item that has been rejected or required to be corrected must be replaced or corrected by and at the expense of Seller promptly after notice. If, after being requested by NanoString, Seller fails to promptly replace or correct any defective item, then NanoString may (i) by contract or otherwise, replace or correct such item and charge to Seller the cost occasioned thereby, (ii) without further notice, cancel the purchase order for default as set forth below or (iii) require an appropriate reduction in price. Unless otherwise agreed to by NanoString in a signed written agreement with Seller, NanoString shall not be restricted whatsoever in its use or resale of any goods ordered hereunder.
8. CHANGE ORDERS. NanoString may at any time, by a written order, suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of the following: (i) applicable drawings, designs or specifications; (ii) method of shipment or packing; and/or (iii) place of delivery. If the change causes an increase in the cost or the time required by Seller for performance of the purchase order and Seller so notifies NanoString, then an equitable adjustment will be made in the order price or delivery schedule or both, and the purchase order will be modified accordingly in writing. No claim by Seller for such an adjustment will be valid unless asserted within twenty (20) days from the date of receipt by Seller of the notification of change; provided, however, that such period may be extended upon the written approval of NanoString. Nothing in this section is intended to excuse Seller from proceeding with the purchase order as changed or amended.
9. DESIGN AND PROCESS CHANGES. Seller will make no changes in the design, materials, manufacturing location, or processes of any goods specified in the purchase order or documents referenced in it, or if none, those in place when the purchase order is issued, without the advance written approval of NanoString’s procurement and quality representatives. Changes to a process include, but are not limited to, changes to the production process, changes in manufacturing equipment, changes in manufacturing location both internally and externally, and changes between a manual and automated process. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
10. CANCELLATION FOR DEFAULT. It is understood and agreed that time is of the essence for the purchase order. NanoString may, by written notice, cancel the purchase order in whole or in part if, in NanoString’s good faith opinion, Seller has failed to (i) make delivery of the items or to perform the services within the time specified in the purchase order, or any extension thereof by written change order or amendment; (ii) replace or correct defective items in accordance with the provisions above; (iii) perform any of the other provisions of the purchase order or (iv) make progress under the purchase order as to endanger performance in accordance with its terms. If the purchase order is cancelled for Seller’s default, NanoString may procure, upon such terms and in such manner as NanoString may deem appropriate, goods or services similar or substantially similar to those canceled. Seller will then be liable to NanoString for any excess costs occasioned thereby. If all or a portion of the purchase order is canceled for Seller’s default, NanoString may require Seller to transfer title and to deliver to NanoString, in the manner and to the extent directed by NanoString, (i) all completed items not yet delivered and (ii) any partially completed items and materials that Seller has produced or acquired for the performance of the terminated portion. Seller will, upon direction of NanoString, protect and preserve the property listed in this paragraph that is in the possession of Seller. Payment for completed items delivered to and accepted by NanoString under this paragraph will be in an amount (not to exceed the contract price) agreed upon by Seller and NanoString; however, Seller’s obligation to carry out NanoString’s direction as to delivery, protection and preservation of the property will not be contingent upon prior agreement as to such amount. Nothing in this section is intended to excuse Seller from proceeding with any uncancelled portion of the purchase order.
11. TERMINATION FOR CONVENIENCE. At any time for convenience, NanoString may terminate the purchase order, in whole or in part, by written notice to Seller. Upon such termination, Seller will, to the extent and at the times specified by NanoString, stop all work under the purchase order; place no further orders for materials to complete the work; assign to NanoString all Seller’s interests under terminated subcontracts and orders; settle all claims thereunder after obtaining NanoString’s approval; protect all property in which NanoString has or may acquire an interest and transfer title; and make delivery to NanoString of all articles, materials, work in process and other things held or acquired by Seller in connection with the terminated portion of the purchase order. Seller will proceed promptly to comply with NanoString’s instructions respecting each of the foregoing without awaiting settlement or payment of its termination claim. Within six (6) months after such termination, Seller may submit to NanoString its written claim for termination charges, in the form and with the certifications reasonably prescribed by NanoString. Failure to submit the claim within six (6) months will constitute a waiver of all claims and a release of all NanoString’s liability arising out of the termination. The parties may agree upon the amount to be paid Seller for such termination. If they fail to agree, NanoString will pay Seller the following amounts: (i) the contract price for all items completed or services rendered in accordance with the purchase order for which payment has not been made; (ii) the actual costs incurred by Seller which are properly allocable under recognized commercial accounting practices to the terminated portion of the purchase order, plus a fair and reasonable profit on such costs. If it appears that Seller would have sustained a loss on the order, no profit will be allowed and an adjustment will be made reducing the amount of the settlement to reflect the indicated rate of loss; (iii) the reasonable costs incurred by Seller in making settlement hereunder and in protecting property in which NanoString has or may acquire an interest. Payments made under this section may not exceed the aggregate price specified in the purchase order less payments otherwise made or to be made. Any amounts payable for property lost, damaged, stolen or destroyed prior to delivery to NanoString will be excluded from amounts otherwise payable to Seller under this section.
12. RISK OF LOSS OR DAMAGE. Notwithstanding any prior inspections and irrespective of the F.O.B. point named herein, Seller will bear all risk of loss, damage or destruction to the ordered goods until acceptance of the goods by NanoString at destination. Seller will bear the same risk with respect to any goods rejected by NanoString. NanoString, however, will be responsible for any loss occasioned by the negligence of its employees acting within the scope of their employment.
13. WAIVER. The failure of NanoString to enforce at any time any of the provisions of the purchase order, to exercise any election or option provided herein or to require at any time the performance by Seller of any of the provisions herein will not in any way be construed to be a waiver of such provisions.
14. REMEDIES. The remedies stated herein are in addition to all other remedies at law or in equity.
15. INDEMNIFICATION. Seller agrees to indemnify NanoString, its agents, customers, successors, and assigns against any loss, damage and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright, trademark or other third party right arising out of the use or sale of the goods by NanoString, its agents or customers; provided, however, that NanoString must notify Seller of any suit, claim or demand involving such infringement and permit Seller to defend against or settle the same. If any injunction is issued as the result of any such infringement, Seller agrees, at NanoString’s option, to (i) refund to NanoString the amounts paid to Seller for the goods covered by the injunction or (ii) promptly furnish NanoString with acceptable and non-infringing goods. Seller agrees to indemnify NanoString against any and all liability and expense resulting from any alleged defect in the goods, whether latent or patent, including allegedly improper construction and design or from the failure of the goods to comply with specifications. Seller warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify NanoString against any such liabilities. The above indemnifications are in addition to all other rights of indemnification of NanoString against Seller.
16. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Seller will not quote for sale to others, without NanoString’s written authorization, any goods purchased under NanoString’s specifications or drawings. All specifications, drawings, samples and other data furnished by NanoString will be treated by Seller as confidential information, will remain NanoString’s property and will be returned to NanoString on request.
17. ASSIGNMENT. Neither party may assign in whole or in part this purchase order without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed, except that either party may assign this purchase order in its entirety to its successor-in-interest in connection with a merger, consolidation, or other corporate reorganization, or the sale of all or substantially all of its assets.
18. NOTICE OF DELAYS. Whenever any event delays or threatens to delay the timely performance of the purchase order, Seller will immediately notify NanoString of such event and furnish all relevant details. Receipt by NanoString of such notice will not constitute a waiver of the due dates hereunder.
19. DELIVERABLES. With the exception of software that was not developed for NanoString under the purchase order, all goods and deliverables from any services (including software developed for NanoString under the purchase order) provided to NanoString by Seller in connection with the purchase order (the “Deliverables”) shall be the sole and exclusive property of NanoString. Where applicable, such Deliverables shall be considered “works made for hire” under the U.S. Copyright Act (Title 17, United States Code). The Deliverables, and all intellectual property and proprietary rights associated with the Deliverables, including those not recognized as “works made for hire” as a matter of law, shall be owned exclusively by NanoString and Seller assigns to NanoString for no additional consideration all rights, title and interest in and to the Deliverables. If requested by NanoString, Seller shall, without additional consideration, sign a separate written assignment of such rights to NanoString or any other document necessary for NanoString to establish, maintain or enforce such rights in the Deliverables.
20. GOVERNMENT CONTRACTS. If the purchase order is issued for any purpose that is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract thereunder, the terms that the Armed Services Procurement Regulation or other appropriate regulations require to be inserted in contracts or subcontracts will be deemed to apply to the purchase order.
21. APPLICABLE LAW. The purchase order is governed by the laws of the State of Washington, without reference to conflict of law principles. All disputes arising out of or related to NanoString’s order will be subject to the exclusive jurisdiction of the courts located in Seattle, Washington and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.