Last Updated: April 3, 2017
PURCHASE ORDER TERMS AND CONDITIONS
ACCEPTANCE OF THIS PURCHASE ORDER MUST BE WITHOUT QUALIFICATION. SHIPMENT OF THE GOODS OR PERFORMANCE OF THE SERVICES PURCHASED HEREUNDER BY GRAIL, Inc. (“GRAIL”) SHALL CONSTITUTE AGREEMENT BY SELLER (“SELLER”) TO THE SPECIFICATIONS, AND ANY TERMS AND CONDITIONS SPECIFIED ON THE FACE OF THIS DOCUMENT AND AT AT WWW.GRAIL.COM/PURCHASE_TERMS. SELLER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN ANY ACCEPTANCE OR ANY OTHER COMMUNICATIONS WHICH ARE INCONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH ON THIS PURCHASE ORDER. SELLER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS, OR ANY DELETIONS OF THE PURCHASE ORDER TERMS AND CONDITIONS ARE EXPRESSLY EXCLUDED FROM THIS PURCHASE ORDER AND ABSENT WRITTEN AGREEMENT, PURCHASER DOES NOT AGREE TO SUCH ADDITIONS, MODIFICATIONS, OR DELETIONS]
1. PRICES AND TAXES
The acceptance of this purchase order constitutes a warranty that the prices to be charged for articles or services ordered (“Products”) do not exceed the lowest price charged to any other customer for similar quantities and delivery requirements. Unless otherwise specified, the prices set forth in this purchase order include all applicable federal, state and local taxes.
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. A bill of lading or express receipt must accompany each invoice. 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 this purchase order. GRAIL may at any time set off any amount owed by GRAIL to Seller against any amount owed by Seller or any of its affiliated companies to GRAIL.
Time in connection with any discount offered by Seller will be computed from the latest of (i) the scheduled delivery date, (ii) the date of actual delivery or (iii) the date an acceptable invoice is received. For the purpose of earning the discount, payment will be deemed to have been made on the date of mailing of GRAIL’s check.
GRAIL will pay only for maximum quantities ordered. Over-shipments will be held by GRAIL 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
Unless otherwise specified, when the price of this purchase order is based on the weight of the ordered goods, such price is to cover only the net weight of material ordered, and no charges will be allowed for packing, handling, transportation, storage or other packing requirements. 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 GRAIL has given prior written consent.
6. F.O.B. POINT
Unless otherwise specifically provided on the face of this order, the products ordered hereunder will be delivered F.O.B. destination.
(a) Seller warrants that all goods delivered will (i) be free from defects in workmanship, material, and manufacture; (ii) comply with the requirements of this 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 GRAIL to the extent disclosed to GRAIL. The foregoing warranties constitute conditions to this purchase order. They are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by GRAIL. All warranties run to the benefit of GRAIL and its resellers and customers.
(b) GRAIL’s approval of Seller’s materials or design will not relieve Seller of any warranties.
(c) If any goods delivered do not meet the warranties specified herein or otherwise applicable, GRAIL may, at its option, (i) require Seller to correct any defective or nonconforming goods by repair or replacement at no cost to GRAIL; (ii) return such defective or nonconforming goods to Seller at Seller’s expense and recover from Seller the order price thereof or (iii) correct the defective or nonconforming goods itself and charge Seller with the cost of such correction.
8. INSPECTION AND ACCEPTANCE
Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance at GRAIL’s plant 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 this order, GRAIL 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 GRAIL, Seller fails to promptly replace or correct any defective item, then GRAIL may (i) by contract or otherwise, replace or correct such item and charge to Seller the cost occasioned thereby, (ii) without further notice, cancel this purchase order for default in accordance with Section 10 below or (iii) require an appropriate reduction in price.
9. CHANGE ORDERS
(a) The GRAIL 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.
(b) If the change causes an increase in the cost or the time required by Seller for performance of this purchase order and Seller so notifies GRAIL, 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 GRAIL.
(c) Nothing in this Section 9 is intended to excuse Seller from proceeding with this purchase order as changed or amended.
10. CANCELLATION FOR DEFAULT
(a) It is understood and agreed that time is of the essence for this order because the goods or services ordered herein are needed for products of GRAIL that have a very short, carefully timed market life; failure of Seller to deliver on the due date could cause GRAIL’s products to be unmarketable. GRAIL may, by written notice, cancel this order in whole or in part if, in GRAIL’s good-faith opinion, Seller has failed to (i) make delivery of the items or to perform the services within the time specified herein, or any extension thereof by written change order or amendment; (ii) replace or correct defective items in accordance with the provisions of Sections 7 or 8 above; (iii) perform any of the other provisions of this purchase order or (iv) has so failed to make progress under this purchase order as to endanger performance in accordance with its terms.
(b) If this purchase order is canceled for Seller’s default, GRAIL may procure, upon such terms and in such manner as GRAIL may deem appropriate, goods or services similar or substantially similar to those canceled. Seller will then be liable to GRAIL for any excess costs occasioned thereby.
(c) If all or a portion of this purchase order is canceled for Seller’s default, GRAIL may require Seller to transfer title and to deliver to GRAIL, in the manner and to the extent directed by GRAIL, (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 GRAIL, 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 GRAIL under this paragraph will be in an amount (not to exceed the contract price) agreed upon by Seller and GRAIL; however, Seller’s obligation to carry out GRAIL’s direction as to delivery, protection and preservation of the property will not be contingent upon prior agreement as to such amount.
(d) Nothing in this Section 10 is intended to excuse Seller from proceeding with any uncancelled portion of this purchase order.
11. TERMINATION FOR CONVENIENCE
(a) At any time for convenience, GRAIL may terminate this purchase order, in whole or in part, by written notice.
(b) Upon such termination, Seller will, to the extent and at the times specified by GRAIL, stop all work under this purchase order; place no further orders for materials to complete the work; assign to GRAIL all Seller’s interests under terminated subcontracts and orders; settle all claims thereunder after obtaining GRAIL’s approval; protect all property in which GRAIL has or may acquire an interest and transfer title and make delivery to GRAIL of all articles, materials, work in process and other things held or acquired by Seller in connection with the terminated portion of this purchase order. Seller will proceed promptly to comply with GRAIL’s instructions respecting each of the foregoing without awaiting settlement or payment of its termination claim.
(c) Within six (6) months after such termination, Seller may submit to GRAIL its written claim for termination charges, in the form and with the certifications prescribed by GRAIL. Failure to submit the claim within six (6) months will constitute a waiver of all claims and a release of all GRAIL’s liability arising out of the termination.
(d) The parties may agree upon the amount to be paid Seller for such termination. If they fail to agree, GRAIL will pay Seller the following amounts:
(i) The contract price for all items completed or services rendered in accordance with this 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 this 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 GRAIL has or may acquire an interest.
(e) Payments made under Sections 11(d)(i) and (ii) above may not exceed the aggregate price specified in this purchase order less payments otherwise made or to be made. Any amounts payable for property lost, damaged, stolen or destroyed prior to delivery to GRAIL will be excluded from amounts otherwise payable to Seller under this Section 11.
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 final acceptance of the goods by GRAIL at destination. Seller will bear the same risk with respect to any goods rejected by GRAIL. GRAIL, however, will be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their employment.
The failure of GRAIL to enforce at any time any of the provisions of this 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.
The remedies stated herein are in addition to all other remedies at law or in equity.
(a) Seller agrees to indemnify GRAIL, 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 GRAIL, its agents or customers; provided, however, that GRAIL 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 GRAIL’s option, to (i) refund to GRAIL the amounts paid to Seller for the goods covered by the injunction or (ii) promptly furnish GRAIL with acceptable and non-infringing goods.
(b) Seller agrees to indemnify GRAIL 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.
(c) Seller warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify GRAIL against any such liabilities.
(d) The above indemnifications are in addition to all other rights of indemnification of GRAIL against Seller.
16. NON-DISCLOSURE OF CONFIDENTIAL MATTER
Seller will not quote for sale to others, without GRAIL’s written authorization, any goods purchased under GRAIL’s specifications or drawings. All specifications, drawings, samples and other data furnished by GRAIL will be treated by Seller as confidential information, will remain GRAIL’s property and will be returned to GRAIL on request.
No right or obligation under this purchase order (including the right to receive monies due) may be assigned by Seller without the prior written consent of GRAIL and any purported assignment without such consent will be void. GRAIL may assign this purchase order at any time if such assignment is considered necessary by GRAIL in connection with a sale of GRAIL’s assets or a transfer of its obligations.
18. NOTICE OF DELAYS
Whenever any event delays or threatens to delay the timely performance of this purchase order, Seller will immediately notify GRAIL of such event and furnish all relevant details. Receipt by GRAIL of such notice will not constitute a waiver of the due dates hereunder.
19. PATENT LICENSE
Seller, as part consideration for this purchase order and without further cost to GRAIL, hereby grants to GRAIL (and, to the extent requested by GRAIL, to the government) an irrevocable, non-exclusive, royalty-free license to use, sell, manufacture and cause to be manufactured products embodying any inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this purchase order.
20. GOVERNMENT CONTRACTS
If this 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 this purchase order.
21. APPLICABLE LAW
This purchase order will be governed by the laws of the State of California.