Promega Purchase Order Terms and Conditions

These Promega Purchase Order Terms and Conditions apply to each purchase order ("Purchase Order") placed by Promega Corporation or its affiliates ("Promega") for the products and/or services provided by you ("Seller"). By accepting or filling a Purchase Order, Seller agrees to these terms and conditions. These terms only apply to transactions that are not governed by a written agreement executed by both parties.

1. Contract Terms and Choice of Law. This Purchase Order is intended as an offer to purchase the materials or services specified on the face hereof and upon the terms and conditions stated herein, and any reference to the Seller's quotation or similar form is solely for the purpose of describing the materials. This offer expressly limits acceptance to the terms and conditions stated herein, and none of the terms and conditions stated herein may be added to, modified, superseded or otherwise altered except by writing signed by Promega. Each shipment received by Promega from Seller shall be deemed to be subject only to the terms and conditions stated herein, notwithstanding any terms and conditions that may appear in Seller's quotation, acknowledgment, invoice or other form, and notwithstanding Promega's acceptance and/or payment for the materials. This Purchase Order shall be construed and enforced in accordance with laws of the State of Wisconsin.
2. Title. Clear title to the materials sold hereunder shall pass to Promega with payment of all money due under the agreed purchase contract. Notwithstanding the foregoing, if Seller ceases to conduct its normal business operations, including, without limitation, failing to meet its obligations as they mature, or if any bankruptcy or insolvency proceeding is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment of substantially all the assets of Seller for the benefit of creditors is made by Seller, then Seller irrevocably grants, assigns and transfers all right, title and interest in and to all drawings, illustrations, pictures, descriptions, plans and characteristics (collectively, the "Plans") pertaining to the materials and services specified on the face hereof, including, without limitation, as may be reasonably necessary for Promega to use the Plans internally, or engage a third party to use the Plans, to complete the work and deliver the materials and services specified on the face hereof. At Promega's request, Seller shall execute and deliver any documents and instruments reasonably necessary to effect the transfer of rights provided for in the immediately preceding sentence.
3. Insurance. Upon request from Promega, Seller shall furnish to Promega an insurance carrier's certificate showing that Seller has adequate Workers' Compensation, Public Liability and Property Damage insurance coverage. Said certificate shall set forth the amount of coverage, policy number and date of expiration. Seller shall maintain:
   1. Commercial General Liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) annual aggregate covering any and all damage to property or injury to or death of persons arising from or out of installation and/or operation of any materials sold hereunder and/or performance of any work hereunder.
   2. Excess or Umbrella Liability insurance extending over the required Commercial General Liability and Employer's Liability in an amount not less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate.
   3. Workers' Compensation insurance as provided by statute and Employer's liability insurance of at least one hundred thousand dollars ($100,000) per employee.

      Seller shall furnish a certificate of coverage naming Promega as an additional insured prior to award of contract and warrant that the same levels of coverage be maintained annually. Seller's insurance coverages will apply on a primary and non-­contributory basis to those of Promega. Seller's General Liability policy will include a waiver of subrogation in favor of Promega.

4. Warranties. Seller expressly warrants that all of the materials sold hereunder (a) will conform to any and all final specifications, drawings, plans, instructions, samples or other descriptions, whether express or implied, furnished by Promega and agreed by Seller; (b) will be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose or which Promega intends to use such materials, such materials will be fit for such particular purpose; (c) will be new and merchantable; and (d) will be of good material and workmanship and free from defects, whether latent or patent. Seller further warrants to Promega that Seller has, or will have at the time of delivery hereunder, good and marketable title to such materials, free and clear of all liens, privileges, encumbrances, claims and other security interests. The foregoing warranties shall survive Promega's inspection, acceptance, use and subsequent dispossession or sale of the materials sold hereunder. Seller hereby extends to Promega any and all warranties received from Seller's suppliers and agrees to enforce such warranties on Promega's behalf. All of Seller's warranties shall run to Promega and its successors, assigns and users of materials sold hereunder. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope herein or otherwise provided by Seller to Promega or otherwise provided by law, including, without limitation, any and all warranties provided in the Uniform Commercial Code. Seller shall compensate, indemnify and hold Promega harmless from and against any and all damages, including incidental and consequential damages, claims, liabilities and expenses (including court costs and attorneys' fees) arising out of or relating to or resulting in any way from a breach of any warranty herein, whether express or implied, or from any act or omission of Seller, its officers, agents, employees or subcontractors.
5. Patent Indemnity. Seller shall indemnify and hold Promega harmless from any and all liability, losses, damage, claims and courses of action, and expenses connected therewith (including, without limitation, reasonable attorneys' fees and legal expenses) caused or asserted to have been caused, directly or indirectly, by any infringement or alleged infringement of any United States or foreign patent, or other proprietary rights of any third party, based on Promega's ownership or proper use of the materials delivered hereunder, in accordance with all requirements provided by Seller to Promega. In the event Promega is enjoined from using any part of the materials delivered hereunder due to the alleged infringement of any patent granted by the United States or foreign government, or other proprietary rights of any third party, Seller shall, at Promega's election in its sole discretion, either (a) purchase for Promega the right to continue Promega's use of the subject materials; (b) modify the subject materials so to that they are no longer infringing, without loss or functionality; or (c) replace the subject materials with materials of equal or better quality and the same functionality that is not infringing.
6. Delivery and Risk of Loss. Unless otherwise stated on the face hereof, all materials are to be furnished DDP (point of destination), Incoterms 2010, and no charges will be allowed for freight, transportation, crating, handling, demurrage or for any other matter relating to the delivery of the materials to Promega unless authorized in writing by Promega. The entire risk of loss, injury or destruction of the materials, regardless of the point of destination and cause thereof, shall be borne by the Seller until the materials are delivered to and accepted by Promega. All deliveries are to be tagged with the purchase order number that appears on the face hereof, and no partial deliveries shall be permitted without prior written authority of Promega.
7. Time of Delivery. Time is of the essence with respect to the delivery date specified on the face hereof. Seller agrees to compensate Promega for any damages that Promega may incur as a result of Seller's failure to deliver on time. In addition, Promega reserves the right to cancel all or any portion of this order that is not delivered on time.
8. Inspection and Acceptance. The materials shall be subject to inspection upon delivery, and the materials may be rejected for defects or faults revealed by such inspection or by analysis or the use thereof at any time thereafter. Rejected materials may be returned to Seller for full refund, including any transportation charges paid by the Promega.
9. Force Majeure. Promega reserves the right to cancel all or any part of this order which has not actually been shipped by Seller, in the event Promega's business is interrupted because of strikes, labor disturbances, fires, pandemics, acts of God or any other cause beyond the reasonable control of Promega.
10. Invoices. Only Purchase Orders issued and approved by Promega's purchasing personnel are legally binding. Invoices for each Purchase Order must be invoiced separately. All payments must be made by presentation of written invoices to Promega's Accounts Payable Department and processed through the appropriate Promega account payable process. Payment terms shall be net 45 days from receipt of invoice, unless otherwise agreed in writing by the parties.
11. Taxes. Promega will pay any sales, use, local or any other taxes which may be due as a result of this transaction, other than income taxes owed by Seller.
12. Confidentiality. All information contained in any drawings, blueprints, specifications, samples, purchase commitments and other material submitted by Promega to Seller hereunder is exclusively proprietary to Promega and shall be returned to Promega upon request or upon completion, termination or cancellation of this Purchase Order. Seller shall keep all such information strictly confidential and shall not, without Promega's prior written consent, use such information in whole or in part for its own benefit, or disclose such information in whole or in part to any other party.
13. Compliance with Law. Seller shall comply with all applicable federal, state, and local laws and regulations. Promega and Seller shall abide by the requirements of 41 CFR sections 60-1.4(a), 60-300.5(a) and 60-741.5(a), as applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Promega and Seller shall also abide by all provisions of Executive Order 13496 and all relevant rules, regulations, and orders in regard to Executive Order 13496, as applicable.
14. Severability. If any court of competent jurisdiction determines that any provision of these terms and conditions is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed herein.
15. Changes. No changes shall be made to any of the terms herein unless agreed to in writing by an authorized representative of Seller and Promega and authorized by Promega's revised purchase order.

Updated April 2, 2020