Last Updated: May 5, 2020
PURCHASE ORDER TERMS AND CONDITIONS
ACCEPTANCE OF THIS PURCHASE ORDER MUST BE WITHOUT QUALIFICATION. SHIPMENT OF THE GOODS OR COMMENCEMENT OF THE SERVICES PURCHASED HEREUNDER BY GRAIL, Inc. (“GRAIL”) SHALL CONSTITUTE AGREEMENT AND ACCEPTANCE BY SELLER (“SELLER”) TO THESE TERMS AND CONDITIONS AT WWW.GRAIL.COM/PURCHASE_TERMS. SELLER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN ANY ACCEPTANCE OR ANY OTHER COMMUNICATIONS WHICH ARE INCONSISTENT WITH THESE TERMS AND CONDITIONS. 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 is solely responsible for all penalties, interest, additional taxes or other charges that are demanded from, levied or assessed against GRAIL as a result of any delay or failure by Seller to pay a tax, file a return or provide information required by law or this order.
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. Seller shall invoice GRAIL only upon GRAIL’s notification of acceptance of the Products and such invoices shall be payable 45 days after receipt. 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 & 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 consistent with the requirements of GRAIL, (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, along with all pertinent material safety data sheets. 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 will be delivered F.O.B. destination.
(a) Seller expressly warrants that all Products 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; (iv) be covered under standard warranty provided by Seller for such Products for repair and replacement, if any, (v) be free and clear of liens and other interests of Seller and third parties, (vii) not infringe the patents, trademarks, copyrights, design rights or other rights of any third party, 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. This warranty is not sole or exclusive and is in addition to any other express or implied warranties set forth in this order or provided by law.
8. INSPECTION AND ACCEPTANCE
GRAIL may inspect or test the goods at all reasonable times or places prior to final acceptance, at no additional cost to GRAIL. GRAIL’s failure to exercise this right does not relieve Seller of its obligation to furnish conforming Products and imposes no liability on GRAIL. Notwithstanding any prior inspection or payments, all Products 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. Nonconforming Products will be held by GRAIL for disposition in accordance with Seller’s instructions at Seller’s risk. Seller’s failure to provide written instructions within ten (10) days after GRAIL’s issuance of notice of nonconformity shall entitle GRAIL, at GRAIL’s option, to charge Seller for storage and handling or to dispose of the goods, without liability to Seller.
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) Seller agrees to promptly make such changes provided that 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 Products 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 Product within the time specified herein, or any extension thereof by written change order or amendment; (ii) replace or correct nonconforming Product 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. Seller shall refund any pre-payment not fully applicable to goods retained by GRAIL.
(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) Seller’s sole compensation for such termination shall be payment by GRAIL of the percentage of the total order price corresponding to the proportion of the work completed in filling the order prior to such notice, plus any reasonable actual expenses incurred by Seller in performance of this order prior to notice of termination, based on substantiating documentation provided to GRAIL and shall be subject to audit by GRAIL.
(d) Within sixty (60) days 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 sixty (60) days will constitute a waiver of all claims and a release of all GRAIL’s liability arising out of the termination.
(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. and shall be subject to audit by GRAIL. In no event is GRAIL liable to Seller for any direct, indirect, special or consequential damages, lost profits, penalties or costs arising out of any termination.
12. TERMINATION FOR INSOLVENCY
GRAIL may immediately cancel this order without liability to Seller in the event of the happening of any of the following: (a) insolvency of the Seller; (b) filing of a voluntary petition in bankruptcy/insolvency by Seller; (c) filing of any involuntary petition in bankruptcy/insolvency against Seller; (d) appointment of a receiver or trustee for Seller; or (e) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event.
13. 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 Products until final acceptance of the goods by GRAIL at destination. Seller will bear the same risk with respect to any Products 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 Products, whether latent or patent, including allegedly improper construction and design or from the failure of the goods to comply with specifications.
(c) Seller agrees to indemnify GRAIL, its agents, customers, successors, and assigns against any loss, damage and liability (including costs and expenses) for any liability, loss, claims, suits, demands, damages or expenses (including reasonable attorney fees) for damages to the property of or injuries (including death) to GRAIL, its employees or any other person arising from or in connection with Seller’s performance of work or use of GRAIL’s property or Seller’s negligence or willful misconduct, except for any such liability, claim, suit or demand arising out of the sole negligence of GRAIL.
(d) 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.
(e) The above indemnifications are in addition to all other rights of indemnification of GRAIL against Seller.
17. NON-DISCLOSURE OF CONFIDENTIAL MATTER
Seller shall not, without first obtaining the written consent of GRAIL, in any manner disclose or publish the fact that Seller has contracted to furnish GRAIL the Products or use any trademarks or trade names of GRAIL in Seller’s advertising or promotional materials. Seller will not quote for sale to others, without GRAIL’s written authorization, any Products purchased under GRAIL’s specifications or drawings. In connection with this purchase order, GRAIL may disclose to Seller, through observation or otherwise, Confidential Information (as defined below). During the term of this order and for a period of five years thereafter, Seller (i) may not disclose Confidential Information to anyone not subject to this Paragraph without the prior written approval of GRAIL; (ii) must restrict its use of Confidential Information to the intended purpose of this order; and (iii) must limit dissemination of Confidential Information within its own organization to only those individuals who require disclosure for performance of their duties and who clearly understand the requirements of this Paragraph. The phrase “Confidential Information” shall mean all information concerning GRAIL unless specifically identified as “non confidential,” including, but not limited to, all of GRAIL’s confidential or proprietary information, trade secrets, data, know-how, formulas, designs, drawings, photographs, documentation, forms of software or electronic media, equipment, processes, ideas, methods, concepts, facilities, construction plans and specifications, research, development, and business and financial information. At GRAIL’s request, all tangible Confidential Information possessed by Seller, including, but not limited to, all copies, translations, interpretations and adaptations thereof must be returned immediately to GRAIL. In the event Seller becomes legally compelled to disclose any Confidential Information, it shall provide GRAIL an opportunity to obtain a protective order or such other appropriate remedy, and shall obtain reliable assurances that such information will be accorded confidential treatment.
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 order at any time to any subsidiary or affiliate of GRAIL or to any entity in connection with a sale of GRAIL’s assets or a transfer of its obligations.
19. 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 and take all reasonable steps to meet the delivery date(s), including the use of premium transportation if necessary, at no additional cost to GRAIL. Receipt by GRAIL of such notice will not constitute a waiver of the due dates hereunder.
Seller, as part consideration for this purchase order and without further cost to GRAIL, hereby assigns to GRAIL (any inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this purchase order, , without limitation, all patents, copyrights, trade secret rights and other proprietary rights (“Inventions”). Inventions may be used by GRAIL without restriction and may not be used by Seller or its subsidiaries or its subcontracts, if any, without GRAIL’s prior written consent.
21. 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.
22. APPLICABLE LAW
This purchase order will be governed by the laws of the State of California. The parties will submit any dispute or claim arising under this order to the exclusive jurisdiction of the courts located in San Mateo County, California, and the parties hereby submit to, and waive any objection to, personal jurisdiction and venue in such courts for such purpose. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this transaction.
Seller shall maintain, at its sole cost and expense, and shall cause its subcontractors to maintain, Commercial General Liability insurance, including coverage for products and completed operations insurance covering claims for bodily injury and property damage to third parties with limits reasonable in light of its obligations hereunder.
24. COMPLIANCE WITH LAWS
Seller agrees to comply with all laws, executive orders, rules, regulations, ordinances and industry guidelines which may be applicable to Seller’s performance of its obligations under this order, and agrees to hold GRAIL harmless from all liability resulting from failure of such compliance.
25. RELATIONSHIP OF PARTIES
Seller and GRAIL are independent contracting parties and nothing in this order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller is not eligible for benefits that may be provided to GRAIL’s common law employees, including, but not limited to vacation, health insurance, retirement and savings plan, stock plans and bonuses. Seller is solely responsible for the conduct of its employees, agents and subcontractors at all times and must comply with all social security, workers’ compensation, unemployment and disability insurance requirements and withholdings, and any other applicable federal, state and local laws, rules and regulations, including the procurement of permits and licenses when requested.
Seller represents and warrants that neither the Seller, nor any of its affiliates, nor any of their respective directors, officers, employees or agents (all of the foregoing, including affiliates collectively, “Seller Representatives“) has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended (such act, including the rules and regulations thereunder, the “FCPA”), the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted by the Negotiating Conference of the Organisation for Economic Co-operation and Development on 21 November 1997 (such convention, including the rules and regulations thereunder, the “OECD Convention“), the U.K. Bribery Act of 2010 (“Bribery Act“), or any other applicable anti-bribery or anticorruption laws, rules or regulations (collectively with the FCPA, the OECD Convention and the Bribery Act, the “Anticorruption Laws“). Seller represents and warrants that the Seller and Seller Representatives have conducted and will conduct their businesses in compliance with the Anticorruption Laws and that Seller has and will have necessary procedures in place to prevent bribery and corrupt conduct by Seller Representatives. Without limiting any other remedies at law or at equity, GRAIL may, at GRAIL’s sole discretion, terminate this order or suspend or remove Seller Representatives, for any violation of the Anticorruption Laws, in accordance with GRAIL’s contractual rights.
If any term of this order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed modified or deleted, but only to the extent necessary to comply with such statue, regulation, ordinance, order or rule, and the remaining provisions of this order shall remain in full force and effect.
28. AGREEMENT; AMENDMENTS.
This purchase order, together with these Terms and Conditions, the attachments, exhibits, or supplements specifically referenced in this order, constitutes the entire agreement between Seller and GRAIL with respect to the subject matter contained herein and supersedes all prior oral or written inquiries, proposals, representations, negotiations, commitments and agreements pertaining to the subject matter herein. This purchase order may only be modified, or any provision herein waived, by an amendment signed by both parties.