1 GENERAL PROVISIONS
1.1 OFFER; ACCEPTANCE; AGREEMENT
1.2 General. Each purchase order (hereinafter the “PO”) is an offer made to Supplier as identified in the PO (hereinafter the “Supplier“) by Medicago Inc. or any of its affiliates and subsidiaries indicated in the PO (hereinafter “Medicago”) for the purchase of goods and/or the performance of services and is governed by these terms and conditions (hereinafter the “T&Cs“).
1.3 Entire Agreement. Subject to the existence of an executed agreement between Supplier and Medicago regarding the subject matter of the PO to which these T&Cs are attached, these T&Cs constitute the entire agreement between the Supplier and Medicago as it relates to the PO. In the event of any contradiction or inconsistencies between these T&Cs, the request for proposal, the quotation, or the specifications, these T&Cs shall prevail and control. For the avoidance of doubt, any terms or conditions proposed by Supplier, whether in Supplier’s quotation, proposal, acknowledgement, invoice or otherwise, are expressly rejected by Medicago, and are not part of these T&Cs, unless expressly assented to in writing by Medicago.
1.4 Description. The PO includes a full description of the goods and/or services to be provided, including any applicable specifications such as identification number(s), data sheets, vendor data requirements, definition of scope, or any other specifications outlined by Medicago. Medicago shall not be liable for any goods delivered or services performed in the event such goods or services are not expressly identified in the PO.
1.5 Acceptance. The Supplier shall be deemed to have accepted the PO unless a notice of rejection in accordance with Section 18 is sent to Medicago within two (2) business days following Supplier’s receipt of the PO.
1.6 Withdraw. Medicago may withdraw the PO without penalty at any time before the commencement of the work associated therewith.
1.7 Changes. Once accepted, a PO may not be modified or cancelled unless a written change order has been approved in writing by both parties.
2.1 “Confidential Information” includes but is not limited to information in written, verbal, visual, electronic or any other media, and information acquired by observation or otherwise during any site visit and includes, but is not limited to, all proprietary technologies, know-how, trade secrets and any other intellectual property (whether or not patented), analyses, compilations, business or technical information and other materials prepared by the Supplier containing or based in whole or in part on any Confidential Information of the Discloser.
2.2 Supplier hereby acknowledges that all Confidential Information of Medicago shall be held in strict confidence and treated with at least the same level of confidentiality with which the Supplier treats its own confidential information, but under no circumstance will use less than commercially reasonable efforts consistent with industry standards. The foregoing shall not apply to Confidential Information for which the Supplier establishes that (i) it is already known to Supplier at the time of disclosure by Medicago as shown by Supplier’s records, (b) it is or subsequently becomes available and accessible to the public through no fault of Supplier, or (ii) it is disclosed to Supplier by a third party on a non-confidential basis.
2.3 The Supplier shall solely use the Confidential Information of Medicago in connection with the PO and for the purposes of delivering the goods and/or performing the services outlined there in (here in after the “Purpose“).
2.4 Supplier agrees not to disclose or permit the disclosure of Medicago’s Confidential Information to any third parties, except that Supplier may disclose Confidential information to its directors, employees, representatives, agents or advisors (hereinafter “Representatives”) that need to know such Confidential Information for the Purpose, are advised of the contents of these T&Cs, and are bound to Supplier by obligations of confidentiality at least as restrictive as the terms found in this Section.
2.5 Supplier shall not advertise, publicly announce or provide to any other party information relating to these T&Cs and the PO to which they are attached or use Medicago’s name and logo in any format for any promotion, publicity, marketing or advertising purposes without Medicago’s prior written consent.
2.6 Supplier agrees not to use any of Medicago’s information and specifications, for the manufacture or production of goods or components for the benefit of any other party or for Supplier’s own benefit.
2.7 In the event any personal information is provided to Supplier under these T&Cs, such information shall not be shared or otherwise disclosed to third parties unless otherwise required by law. Accordingly, Supplier acknowledges that it shall be solely and fully responsible for the management of personal information in accordance with applicable privacy Laws. For clarity, Supplier shall access, collect, manage, process, and maintain any personal information obtained during the performance of obligations outlined in this PO and T&Cs in accordance with applicable privacy Laws, which includes ensuring an appropriate implementation of security measures for the management of events such as security breaches, theft, and unauthorized disclosures of personal information. Where applicable, Supplier shall ensure that all personal information is kept in secure locations as approved in writing by Medicago to ensure its protection and retention and to protect its confidentiality.
2.8 The provisions of this Section 2 shall survive the termination of the PO.
3 INTELLECTUAL PROPERTY
3.1 Background Intellectual Property. The parties agree that unless expressly provided otherwise, all intellectual property provided by or otherwise belonging to either party as of the date of issuance of the PO and all rights, titles, interests and improvements thereto shall remain the sole property of such party. The other party shall not be granted any rights, titles or interests whatsoever with respect to such background intellectual property except as set forth in these T&Cs or the related PO. More particularly and without limiting the generality of the foregoing, Medicago shall retain all rights, titles and interests in and to any form of background intellectual property (such as know-how and specifications) provided to Supplier under these T&Cs and/or the PO.
3.2 Foreground Intellectual Property. Although there is no intent to have Supplier create foreground intellectual property for the purposes of performing the services and/or delivering the products outlined in the PO, in the event foreground intellectual property results therefrom, any and all rights, titles, interests and improvements thereto shall become the sole and exclusive property of Medicago (or of its designee). Supplier shall make available to Medicago (or its designee) all information pertaining to any potential foreground intellectual property described in this Section 3.2 without delay.
4 DELIVERY, TITLE, INSPECTION, DEFAULT
4.2 Supplier shall follow any shipping instructions provided by Medicago and shall properly and carefully package the goods for shipment. Any loss or damage, whenever occurring, which results from Supplier’s improper packaging or crating shall be borne by Supplier. Title and risk of loss shall not pass to Medicago until the goods have been received at the delivery point specified by Medicago. Neither payment by nor passing of title of the goods to Medicago shall be deemed to constitute acceptance of the goods.
4.3 Supplier shall ensure that the goods are delivered, or the services performed no later than the date and to the delivery point specified by Medicago in the PO or in a related document.
4.4 Supplier shall be responsible for obtaining, where applicable, all licenses or other authorizations for the exportation of the goods from the country of the delivery point specified by Medicago in the PO or in a related document. Supplier shall also be responsible for providing any information needed should customs requirements arise regarding the importation of goods or services.
4.5 If Supplier’s acts or omissions result in Supplier’s failure to meet the delivery requirements stipulated in the PO, Medicago reserves the right to require a more expeditious method of transportation of the goods. As such, Supplier shall, at Medicago’s option, ship the goods as expeditiously as possible at Supplier’s expense and invoice Medicago only for the cost of normal shipment.
4.6 Medicago shall have the right to postpone the delivery of the goods (or any component thereof) or the performance of the services for a maximum period of one hundred and twenty (120) days beyond the delivery date before any storage charges, cost changes or other consequences may be considered, which following that time period, shall be agreed between the parties.
5 INSPECTION; NON-CONFORMING GOODS; AUDIT; CORPORATE RESPONSIBILITY
5.1 Notwithstanding any prior inspection or payments hereunder, all goods and services shall be subject to final inspection and acceptance by Medicago.
5.2 Supplier shall ensure that the services performed and/or goods delivered hereunder are compliant with the PO and these T&Cs. For clarity, goods delivered must comply with the specifications, must be free of defects and must be of the quality agreed-upon and/or guaranteed by Supplier and/or which is expected based on the public statements made by either Supplier, the manufacturer or third parties commissioned with distribution of the goods. The delivered goods must correspond to the applicable legal provisions, regulations, and guidelines, in particular, but without limitation, with regard to environmental protection, work safety and health protection, the CE regulations, legal and administrative regulations, tax and social security provisions as well as the recognized rules of science and technology.
5.3 To the extent that any tests are required prior to the acceptance of the goods, a description of such tests, including, without limitation, installation qualification, operational qualification or any other applicable tests and their roles, scope and procedures shall be included, detailed and documented by Supplier in accordance with Medicago’s instructions. As applicable, a certificate evidencing the conformity of the good to the specifications shall be provided by Supplier to Medicago.
5.4 Upon Medicago’s reasonable written request, Medicago shall have the right of access to any of Supplier’s facilities and to interview any Supplier’s employee, representative or subcontractor as may be necessary to allow Medicago to (i) review Supplier’s progress of the manufacturing; (ii) verify that the goods are being manufactured and/or the services are being performed in accordance with these T&Cs, the specifications, and the applicable laws; and (iii) review of Supplier’s books and records pertaining to its operations relating to production of the goods or performance of the services and its compliance with these T&Cs. Medicago’s inspection of such goods, whether during manufacture, or any time prior to delivery, does not constitute acceptance of any work-in-process or finished goods. Medicago’s acceptance, inspection or failure to inspect does not relieve Supplier of any of its responsibilities or warranties.
5.5 If defective goods are shipped to and rejected by Medicago, Supplier agrees to the following remedies being available to Medicago: (i) Supplier agrees to accept the return, at Supplier’s own risk and expense at full invoice price, plus transportation charges, and to replace defective goods as Medicago deems necessary; (ii) with advance consent from Supplier, Medicago may have goods corrected, repaired, or modified by a third party; in such case, Supplier shall reimburse Medicago for all reasonable expenses that result from such correction, reparation, or modification of defective goods.
5.6 Supplier, while performing the Services and providing the goods under any PO, shall comply, in all material respects, with any and all applicable laws, rules, regulations, and Standards that relate to the goods and/or services being rendered including, but not limited to, those relating to environmental matters, public health, wages, hours and conditions of employment, subcontractor selection, discrimination and occupational health/safety. Without limiting the foregoing, Supplier covenants that neither Supplier nor any of its subcontractors will utilize child or any form of forced or involuntary labor in while performing the manufacturing of the goods or performing the services required under a PO. Upon Medicago’s reasonable written request, Supplier will certify in writing its compliance with this section 5.6 and will provide copies of all applicable permits, certificates and licenses that may be required for its performance under any PO. Medicago will have the right to terminate any PO or part thereof, if Supplier fails to comply with the requirements of this Section 5.6.
5.7 Supplier must refrain from performing any acts prohibited by municipal, provincial and federal anti-corruption laws (collectively, “Anti-Bribery Laws”) that may apply to Supplier and/or the goods and services to be provided hereunder. Without limiting the foregoing, Supplier shall not make any payment or offer or assign any valuable consideration to a representative or employee of a government, a representative of a political party, a candidate to a political function, or to any other third party in a manner that would contravene the Anti-Bribery Laws.
6.1 PAYMENT TERMS, TAXES
6.2 Invoices. Invoices to Medicago shall contain a description of the goods or services, the PO number, a breakdown of all applicable fees, costs and expenses and the currency stated in the PO.
6.3 Payment. Medicago shall pay all properly invoiced amounts due to Supplier within thirty (30) days after receipt of such proper invoice and in accordance with the payment schedule set forth in the PO, except for any amounts disputed by Medicago in good faith.
6.4 Price. Unless expressly and specifically stated in a PO the price set forth in the PO (the “Price”) shall be inclusive of all costs related to the performance of the services or the manufacturing of the goods, its packaging and labelling, any shipping transactions, freight, export duties, as applicable, and insurance. The price shall also be inclusive of the manuals required for the operation, maintenance and installation of the goods. Moreover, the Price shall be fixed and in the currency stated in the PO. Where applicable, Supplier shall be responsible for any currency fluctuation
6.5 Payment Dispute. In the event of a payment dispute, Medicago shall deliver a written statement to Supplier detailing any disputed items. The parties shall seek to resolve such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under the T&Cs, notwithstanding any such dispute.
6.6 Taxes. Any prices stated on the PO shall be exclusive of applicable taxes. Applicable taxes and customs duties and other like charges shall be shown as separate items on the invoice, which shall also bear Supplier’s taxes registration number(s). Supplier is exclusively liable for, and shall pay before delinquency, all taxes, assessments, lienable claims, charges or other impositions imposed or levied on Supplier or Medicago in respect of the goods and services provided hereunder and Supplier shall indemnify Medicago against all liability or expense incurred should Supplier fail to do so.
6.7 Release. Supplier must provide to Medicago, along with the final invoice, satisfactory evidence of the release, waiver or satisfaction of all liens, legal hypothecs, encumbrances, or claims and, to the extent permitted by applicable law, a waiver from Supplier, its affiliates, as well as its or its affiliates’ employees, officers, subcontractors, consultants, suppliers, agents and other representatives of any rights they may have to register or publish a legal hypothec or other rights or interest against Medicago or its property in connection with these T&Cs.
7 REPRESENTATION AND WARRANTY
7.1 General Warranties
7.2 With respect to all goods to be delivered and/or services to be performed under the PO, Supplier warrants to Medicago that (i) all goods and services shall be provided or performed in a competent, professional manner and in accordance with the highest standards and with a high degree of quality and responsiveness, at all times consistent with the pharmaceutical industry standards applicable to providers of similar goods and services and otherwise in accordance with the terms of these T&Cs and applicable laws; (ii) all goods shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose; (iii) all goods shall conform to and be performed in accordance with the specifications, drawings, samples and other requirements referred to in the PO and provided by Supplier; (iv) when shipped, all goods shall be free from all liens, security interests and encumbrances of any type whatsoever; (v) no goods or services shall infringe or misappropriate any patent, trademark or copyright issued or granted by the United States or Canada or any other intellectual property rights of any third party, and (vi) all services shall be performed and all goods shall be manufactured, produced, labeled, furnished and delivered to Medicago in full and complete compliance with all applicable laws and regulations, including, but without limitation, all applicable economic sanctions, import, and export control laws, regulations, and orders; and (vii) if a license is required, Supplier hereby grants Medicago a perpetual, royalty-free and irrevocable license to use the goods for any purpose whatsoever relating to vaccine production.
7.3 Supplier shall comply and cause its representatives to comply with Medicago’s policies, rules, regulations and requirements as instructed by Medicago from time to time.
7.4 Supplier shall warrant to have and maintain in force and effect all permits, approvals, licences, certifications and authorizations that Supplier is required to obtain and maintain under any applicable law for the purposes of manufacturing, packaging and labelling activities related to the goods or for the purposes of performing all services and obligations outlined in the PO and these T&Cs.
7.5 Supplier further warrants to Medicago that Supplier’s acceptance of, or performance under the PO does not result in a conflict of interest between Supplier and any third party; that Supplier has the full legal right to provide all goods, and that there is no claim, litigation or proceeding which is pending, or to Supplier’s knowledge, threatened against Supplier with respect to such goods, or any component thereof, alleging infringement of any patent or copyright or violation of any trade secret or any other proprietary right of any person; and that Supplier will obtain and maintain all permits, licenses, and consents required in connection with its performance under the PO.
7.6 All warranties will run to Medicago and subsequent owners of the goods to which such warranties relate. There are no exclusions, limitations, or disclaimers of warranty other than those that may be expressly provided herein.
7.7 Notice of breach of warranty will be given in writing; however, such notice need not include a clear statement of all objections that will be relied upon by Medicago as the basis for breach. All warranties will be construed as conditions as well as promises. Any applicable statute of limitations runs from the date of Medicago’s discovery of the noncompliance of the goods with all warranties expressed herein.
7.8 Term of Warranty
7.9 All warranties set forth herein will remain in effect for a period of not less than twelve (12) months from the date of receipt of the goods or from the date of the successful site acceptance test as confirmed in writing by Medicago as the case may be. In no case will this warranty period be deemed waived by reason of Medicago’s receipt, inspection, or acceptance of the goods, or by any payment therefor. Notwithstanding the foregoing, the parties may agree to a longer warranty period within the PO.
8.1 Supplier shall defend, indemnify and hold harmless Medicago, Medicago’s parent companies, its subsidiaries, affiliates, successors or assigns, and its respective directors, officers, shareholders, employees, and Medicago’s customers (collectively referred to as Indemnitees) against any and all loss, injury, death, damage, liability, claim, action, judgement, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or occurring in connection with goods purchased from and services performed by Supplier or Supplier’s negligence, willful misconduct or breach of the T&Cs hereunder. In such case, the Supplier shall not enter into any settlement without Indemnitees’ prior written consent.
9.1 During the Term, Supplier shall maintain appropriate insurance coverage, including but not limited to a comprehensive general liability (including product liability and completed operations liability), errors and omissions and cyber security insurance, and tail coverage (as applicable), each for coverage and amounts appropriate in consideration of the types of services and/or products provided under the PO and the cost thereof (collectively the “Insurance”) under which Insurance (i) Medicago shall be named as an Additional Insured; and (ii) there is no “insured vs. insured” exclusion or if there is such an exclusion, Medicago is expressly excluded from such an exclusion. Supplier agrees to provide Medicago evidence of such coverage within thirty (30) days of: (a) the date of issuance of the PO; and (b) of such insurance’s renewal. The minimum limits of liability or conditions required in this Section 9.1.1 do not in any way limit any indemnity obligation or other liability of Supplier hereunder.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) SUPPLIER SHALL BE SOLELY RESPONSIBLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE OR LOSS SUFFERED BY IT AND/OR ITS REPRESENTATIVES IN THE PERFORMANCE OF THE PO; AND (B) MEDICAGO’S LIABILITY TO SUPPLIER FOR NEGLIGENCE, BREACH OF THESE T&Cs OR ANY OTHER CLAIM IN DAMAGES AND LOSSES SHALL NOT EXCEED THE TOTAL AMOUNT OWED TO SUPPLIER BY MEDICAGO HEREUNDER AT THE TIME OF THE NEGLIGENCE OR BREACH.
11 INDEPENDENT CONTRACTOR
11.1 Supplier’s status under these T&CS and the PO is that of an independent contractor. All Supplier’s representatives shall be employees of Supplier and shall not be deemed an employee, agent, partner or joint venturer of Medicago for any purpose whatsoever. Neither Supplier nor any of its representatives shall have any authority to bind or act on behalf of Medicago.
12 ASSIGNABILITY AND SUBCONTRACTING
12.1 Supplier shall obtain written approval of Medicago, prior assigning these T&Cs including any PO to which they are attached or prior to engaging any subcontractor to perform portions of the services or manufacturing of the goods. Notwithstanding such approval, Supplier shall remain solely liable for all actions or omissions of any such assignee or subcontractors to the same extent as if Supplier had performed such action or omission itself.
13.1 Medicago may terminate the PO in whole or in part, with or without cause by providing a five (5) days’ prior written notice to Supplier. In addition to any remedies that may be provided hereunder, Medicago may terminate the PO with immediate effect upon written notice to the Supplier, either before or after acceptance of goods, if Supplier has not performed or complied with the terms hereunder, either in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy, or if there are proceedings against the Supplier related to bankruptcy, receivership, reorganization or assignment, then Medicago may terminate the PO immediately by providing written notice to Supplier.
13.2 Upon termination of this PO for any reason whatsoever, Supplier shall:
- (a) return to Medicago all Confidential Information;
- (b) take such action as may be reasonably necessary to preserve and protect work in progress and goods;
- (c) exercise commercially reasonable efforts to terminate all subcontracts;
- (d) cancel any and all cancellable subcontracts, and where such subcontracts are not cancellable, take all necessary measures to mitigate the cost associated therewith;
- (e) deliver, or cause to be delivered, all materials, work in process, and goods; and
- (f) deliver to Medicago all works in progress, including goods data sheets, manufacturer warranties and operation and maintenance manuals provided to it by any subcontractors in electronic media where available, an otherwise in such medium which it was created, stored or delivered;
13.3 In the event of a termination hereunder, Supplier shall be entitled to receive payment for work already performed and/or goods already delivered, in compliance with the PO and these T&Cs. Likewise, Medicago shall be entitled to a prorated refund of all monies paid but not used for actual services performed or goods delivered.
14.1 No delay or failure by either party to exercise any right under these T&Cs, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.
15 GOVERNING LAW
15.1 When the Medicago entity indicated in the PO is located in Canada, these T&Cs shall be governed by and interpreted in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein without reference to its conflict of laws provisions. All disputes arising under these T&Cs will be referred to the courts of the Province of Quebec, city of Quebec which will have jurisdiction, and each Party hereto irrevocably submits to the jurisdiction of such court. The U.N. Convention of Contracts for the International Sale of Goods shall not apply.
15.2 When the Medicago entity indicated in the PO is located in United States, these T&Cs shall be governed by and interpreted in accordance with the laws of the State of North Carolina applicable therein without reference to its conflict of laws provisions. All disputes arising under these T&Cs will be referred to the courts of the State of North Carolina, city of Durham which will have jurisdiction, and each Party hereto irrevocably submits to the jurisdiction of such court. The U.N. Convention of Contracts for the International Sale of Goods shall not apply.
16 FORCE MAJEURE
16.1 In the event that a Medicago is unable to accept delivery of goods or receive services because of a ﬁre, natural disaster, act of God, action or decree of governmental bodies, terrorism, war, or embargos or any other act or even beyond Medicago’s control, Medicago shall give written notice to the Supplier of the occurrence of a Force Majeure Event and shall be allowed to suspend any shipment or performance during the continuation of the Force Majeure Event without penalty or liability to Medicago or terminate the PO at its sole option.
17.1 The parties have expressly agreed that these T&Cs, the PO and any notices, consents, authorizations, communications, and approvals be in English. Les parties conviennent expressément par les présentes que les présents termes et conditions, le bon de commande ainsi que tout avis, consentement, autorisation, communication et approbation soient dans la langue anglaise.
18.1 All notices permitted or required to be given under the terms of this document shall be deemed to have been given when delivered personally, emailed, faxed or deposited in the mail (postage paid) and addressed as follows:
For Medicago’s entity located in the Province of Quebec:
1020, route de l’Église, Suite 600
Québec, Québec, Canada
Attention of: Purchasing representative
For Medicago’s entity located in the USA:
Medicago USA, Inc.
7 Triangle Drive
Durham, North Carolina,
Attention of: Purchasing representative
Telephone: 919-313-9670 #2641