1. DEFINITIONS: “UNITY” means UNITY Biotechnology, Inc. “Seller” means the party identified on the face of a purchase order. “Products” means all materials, products, or services to be furnished to UNITY pursuant to an order. These Purchase Terms are subject to change; the terms in effect are those available on our website as of the date of the Purchase Order.
2. ACCEPTANCE: These Purchase Terms are the agreement between UNITY and Seller for the purchase of Products.Unless the order is subject to a valid, executed agreement between UNITY and Seller, in which case such agreement governs, Seller agrees to be bound by these Purchase Terms. An “order” is an offer to purchase Products under these Purchase Terms, and when accepted by Seller, becomes the exclusive agreement between the parties relating to Products. Any of the following constitutes Seller’s unqualified acceptance of an order: (i) written acknowledgement; (ii) furnishing of any Products pursuant to an order; (iii) acceptance of any payment for Products; or (iv) commencement of performance pursuant to an order. Seller must issue written acknowledgments within 5 business days of order receipt. Notwithstanding the foregoing, an order is not a rejection of any offer by Seller (but merely of the terms and conditions contained within such offer) unless such offer contains variances in the description, quantity, price or delivery schedule of the Products. No terms stated by Seller in accepting or acknowledging an order is binding upon UNITY if inconsistent with or in addition to the terms stated herein, unless accepted by UNITY in a signed writing.
3. PRICE:If no price is stated herein, the price charged UNITY for the Products is the lowest of: (i) the price last quoted to UNITY by Seller or last paid by UNITY to Seller; or (ii) Seller’s lowest price charged any customer for the Products, regardless of any special terms or conditions.
4. INSPECTION:All Products are received subject to UNITY’s right of inspection & rejection. Defective Products or Products not in strict conformance with an order or UNITY’s or Seller’s description or specifications, will be held until receipt of written instructions from Seller, at Seller’s risk, and if Seller so directs, will be returned, at Seller’s expense. If UNITY does not receive such written instructions within 30 days of UNITY’s request, UNITY may, without liability to Seller, dispose of the Products, as it deems appropriate, in its sole discretion. UNITY may, by written notice to Seller, and in addition to other remedies provided by law, require replacement or correction of rejected Products. Payment for Products on an order prior to inspection does not constitute acceptance or a waiver of a breach of warranty and is without prejudice to any claim(s) of UNITY. Seller must inspect all Products prior to shipment to ensure conformance with all requirements of an order.
5. PACKING AND SHIPPING: All items must be packaged, marked and otherwise prepared in accordance with good commercial practices & UNITY’s instructions, if any. Each package must be numbered & labeled with UNITY’s order number, stock number (if applicable), contents, & weight. An itemized packing list must be included in each shipment & the package containing the packing list must be clearly marked as such. Each packing list must bear the UNITY’s order number & an accurate description of the Products and quantities in the shipment. Products shipped in excess of UNITY’s order may be returned at Seller’s expense. UNITY will not be responsible for any Products furnished without a written order.
6. DELIVERY:Delivery of goods is DDP (named place of destination). Seller must deliver the goods to UNITY, cleared for import, and not unloaded at the named place of destination. Notwithstanding any agreement to pay freight, the risk of loss or damage in transit is upon the Seller.
7. TAXES:UNITY will pay sales or use tax, if any is due, of the state in which the order originates. Seller must pay any other federal, state, local or foreign taxes or other governmental charges upon the production, transportation or sale of the goods supplied hereunder. Unless otherwise stated, the prices do not include sales or use taxes applicable to the goods. All such taxes and charges must be shown separately on Seller’s invoice.
8. WARRANTY:Seller warrants that all Products, for the later of a period of 15 months from the date UNITY receives the Product or 12 months from the date the Product becomes usable by the end user, must: (i) be of good quality & workmanship and free from defects, latent or patent, in material or workmanship; (ii) conform in all respects to the specifications, performance standards, drawings, samples or descriptions of Seller and UNITY; (iii) be free of any claim of any third party; and (iv) be manufactured in accordance with generally accepted good manufacturing (including, but not limited to cGMP, if applicable) and quality practices. These warranties are in addition to all other express warranties and legal rights. No remedy available to UNITY for the breach of any warranties is limited except to the extent and in the manner expressly agreed upon by UNITY in a signed writing. UNITY’s approval of any sample or acceptance of any Products does not relieve Seller from responsibility to deliver Products and to perform services conforming, in all respects, to the sample. These warranties are not deemed waived either by reason of UNITY’s acceptance of Products or by payment for them and survive delivery. In the event of a breach of warranty, UNITY may return such Products, at Seller’s expense, for correction, replacement or credit as UNITY may direct. This warranty applies to replacement Products & parts. Seller must effectuate corrections or replacements within 10 days of receipt of Products. Sellers providing maintenance Products must receive EHS training before commencing, and if on-site at UNITY’s locations, must follow UNITY’srules, regulations, and policies for conduct in the workplace and fitness for duty requirements, as such may be updated by UNITY from time to time. Seller must not make any modification to the Products, raw materials used to make Products, or the specifications without UNITY’s prior written consent.
9. CONFIDENTIAL INFORMATION: Seller agrees to keep secret & confidential all confidential, proprietary or non-public information of UNITY and the existence, terms and conditions of an order (“confidential information”). In addition, the Seller agrees to: (i) disclose the confidential information only to its employees who need to know for purposes of fulfilling an order; and (ii) use the confidential information only for the purpose of fulfilling an order. It is understood that no license (expressed or implied) is hereby granted by the UNITY under any confidential information.
10. NOTIFICATION REQUIREMENT: TIME IS OF THE ESSENCE. If, for any reason, at any time, Seller refuses or is unable, or should reasonably anticipate being unable to deliver any part or all of the Products in accordance with the terms hereof, Seller must notify UNITY of such refusal or inability at the earliest possible time and by the most practical means under the circumstances. Such notification is not deemed to operate as a release of Seller from its obligations under an order. UNITY has the right to replace, modify and/or cancel any delayed open orders without any liability to Seller. In the event of such a replacement or modification, Seller must pay to UNITY (or at UNITY’s option, it may offset such amount from any amount owed to Seller) promptly upon demand, an amount equal to the cost of such replacement or modification, less the amount which would have been payable to Seller for an equal quantity and quality of Products, plus any amount incurred by UNITY to effectuate such replacement or modification. Such amount is agreed to be damages for Seller’s non- performance and must not, in any event, be construed to be a penalty. Price increases or extensions of time for delivery are not binding upon UNITY unless evidenced by a change order issued by its authorized representative.
11. INTELLECTUAL PROPERTY: Seller hereby grants a perpetual, paid-up license relating to any Software or other embodiment of intellectual property embedded in the Products, as necessary for UNITY’s purchase, use, maintenance and/or sale of Products. Seller expressly warrants that all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, documentation and manuals), ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, trademarks and other intellectual property (collectively, “Deliverables”) must be original to Seller or be licensed to Seller by a third party and must not incorporate any intellectual property (including copyright, patent, trade secret, mask work, or trademark rights) of any third party which could result in an actual or alleged infringement of any rights of a third party by the purchase, use, maintenance, or sale of Products by UNITY. All Deliverables that are created in the course of performing any order (separately or as part of any Products), and all intellectual property rights in Deliverables, are hereby owned by UNITY and not by Seller. Seller agrees that all works of original authorship created by Seller in connection with each order are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Seller owns any intellectual property rights in the Deliverables, Seller hereby assigns to UNITY all rights, title and interest, including copyrights and patent rights, in such Deliverables.
12. UNITY’S PROPERTY: All material, compounds, tooling, dies, parts, schedules, protocol, specifications, and all derivatives or reproductions thereof, and any other property furnished to Seller by UNITY, or paid for by UNITY, are or will be: (i) the property of UNITY; (ii) clearly identified as UNITY’s property by Seller; (iii) subject to removal at any time upon UNITY’s demand; and (iv) used only in filling orders from UNITY or its nominee. Seller assumes all liability for loss of, and damage to, such property and Seller will, unless otherwise directed in writing by UNITY, insure at Seller’s expense such property in an amount equal to the replacement cost thereof with loss payable to UNITY.
13. SPECIAL PROVISIONS RELATED TO SPECIMENS: Seller warrants that any materials that consist of fluids or tissues collected from human subjects (“Specimens”), that it transfers to UNITY will only be collected, processed, de-identified, tracked, stored, transported, manipulated, destroyed and returned in compliance with: (a) these Terms, (b) the requirements of an IRB, IEC, or equivalent authority, (c) all applicable international, federal, state and local laws and regulations and ethical standards, including privacy and patient confidentiality laws, (d) applicable standards that ensure the protection of the autonomy and human rights of the human subjects. Seller further warrants that the Specimens are consented for the use described in its quote or proposal.
14. INDEMNIFICATION AND INSURANCE: Seller will defend, indemnify, and hold harmless UNITY, its officers, employees, agents, representatives, customers or affiliates (“UNITY’s Affiliates”) from any claim, suit, loss, cost, damage, expense (including, without limitation, the costs and expense incurred in defending suits or actions alleging liability) to any person of whatsoever nature of any kind arising out of, as a result of, or in connection with: (i) Seller’s performance of an order; (ii) omissions or negligence of Seller or its officers, employees, agents, representatives, affiliates or subcontractors; (iii) the Products; or (iv) a claim for infringement of rights in, to or under patents, trademarks, copyrights or other IP rights by the manufacture, design, use, maintenance, support or sale of any Products. Without in any way limiting the foregoing, Seller and any person or entity performing work for or on behalf of Seller under an order must maintain public liability and property damage insurance covering Seller’s obligations hereunder and the Products and must maintain, in accordance with applicable law, workers’ compensation insurance covering all employees performing work with respect to an order This provision survives expiration or termination of an order.
15. TERMINATION: UNITY has the right, without any liability or costs to Seller, to cancel any unshipped portion of an order: (i) which is not in strict conformance with an order or UNITY’s or Seller’s description or specification; (ii) in the event Seller has breached an order, any warranty or its obligations to UNITY; (iii) in the event UNITY’s business is interrupted because of strikes, labor disturbances, riot, fire or Acts of God or any other cause beyond the control of UNITY; or (iv) if the Seller makes an assignment for the benefit of creditors, a receiver or trustee is appointed with respect to the Seller’s business, the Seller is adjudicated insolvent or if the Seller files or there is filed against Seller a petition for bankruptcy or other relief under the Bankruptcy Code or any successor statute. UNITY has the right to cancel any unshipped portion of an order, in whole or in part, at any time, for a reason other than that set forth above, in which event UNITY will be liable to Seller for the actual amount of Seller’s costs reasonably incurred in contemplation of performance of the canceled portion, less any amount saved by Seller as a result of such cancellation and less any amounts which could have reasonably been mitigated by Seller. Seller is cautioned not to ship, fabricate or build inventories of raw or finished stock at a rate faster than is required to meet delivery requirements of UNITY’s order.
16. COMPLIANCE WITH LAW AND UNITY POLICY: Seller warrants that the Products, including all packaging thereof, shipped pursuant to an order has produced in compliance with and meet the minimum standards of all applicable federal, state and local laws, regulations, rules, guides, ordinances and/or standards (“Laws”). Seller will perform its obligations under this Agreement in a manner consistent with both the requirements of all applicable U.S. and foreign laws and regulations, including the Foreign Corrupt Practices Act and Anti-boycott laws, as well as UNITY’s Code of Business Conduct and Ethics. Upon request by UNITY, Seller will furnish UNITY with a certificate of compliance with any Laws. Additionally, Seller will provide UNITY any and all information or material required for either UNITY or UNITY’s customers to comply with all laws, regulations, rules, guides, ordinances, or standards, including, without limitation, Safety Data Sheets. Seller acknowledges that Products provided under this Agreement may be subject to U.S. and applicable foreign export laws and regulations and will perform its obligations under this Agreement in a manner consistent with the requirements of all applicable U.S. and foreign laws and regulations, the Foreign Corrupt Practices Act, and Anti-boycott laws. Specifically, Seller agrees that the shipment or provision of Products, and any related technical data or information, will not violate U.S. export laws or regulations or the import laws and regulations of applicable foreign states. Seller will be responsible for obtaining, recording, filing and maintaining all export and import documentation including all licenses and permits, as well as for the payment of associated fees. Seller must appropriately label containers of all Products which are known to constitute a health, poison, fire, environmental, safety or explosion hazard.
17. ASSIGNMENT:Seller agrees that Seller will neither assign its rights nor delegate its obligations under an order without the prior written consent of UNITY. Any attempted assignment that violates this paragraph is invalid.
18. GOVERNING LAW: Irrespective of the place of performance of an order, an order is interpreted in accordance with the laws of the State of California, without reference to choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state & federal courts located in San Francisco County, California, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.
19. AMENDMENT, MODIFICATION, WAIVER AND REMEDIES:Performance of an order must be strictly in accordance with its stated terms and conditions. No change, modification, revision or waiver is binding unless accepted by UNITY in a signed writing. No waiver of or failure to perform any or all of these terms/conditions constitutes a waiver of or an excuse for non-performance as to any other part of this or any other order. No remedy herein provided is deemed exclusive of any other remedy allowed by law or in equity. Under no circumstances will UNITY be obligated for consequential damages, loss of revenue or profit, or any amount in excess of the total amount stated on the face of any order. Seller must bear all expenses, including reasonable attorneys’ fees, UNITY incurs to enforce its rights under an order.
LAST UPDATED: April 4, 2019