These terms and conditions are hereby incorporated into a purchase order issued by Tune Therapeutics, Inc. (the “Purchase Order”) that references the URL where these terms and conditions are posted. As used herein, the term “Buyer” shall mean TUNE THERAPEUTICS, INC. and the term “Seller” shall mean the seller of goods (“Products”) and services (“Services”) to whom such Purchase Order is directed. The Purchase Order taken together with these terms and conditions are referred to herein collectively as the “Purchase Order Terms.” THE PURCHASE ORDER TERMS CONSTITUTE A REJECTION OF ANY PRIOR OFFER MADE BY SELLER WITH RESPECT TO THE PRODUCTS AND/OR SERVICES AND IS AN OFFER TO PURCHASE THE PRODUCTS AND/OR SERVICES ON THE TERMS AND CONDITIONS SET FORTH HEREIN AND NO OTHERS. Seller’s acceptance of this offer shall be evidenced by Seller’s shipment of Products or delivery of Services, or by submission by Seller to Buyer of Seller’s order confirmation or invoice for such Products or Services. Additional or different terms proposed by Seller will not be applicable and are hereby rejected unless accepted in writing by an authorized representative of Buyer. In the event that Buyer and Seller are party to a services agreement, supply agreement, or similar agreement (“Existing Agreement”) executed by both parties in writing and whose terms cover the Products and Services included in the Purchase Order, the terms of such Existing Agreement shall apply rather than the terms and conditions set forth below.
- DELIVERY AND CANCELLATION. Time is of the essence. Delivery of Products, and work product in the case of Services, shall be strictly in accordance with the schedule in the Purchase Order, and Seller will report any delivery delays to Buyer immediately. Receipt of such report shall not waive any of Buyer’s rights hereunder. Buyer shall have the right to cancel the Purchase Order, in whole or in part, upon written notice at any time prior to delivery of Products, or work product in the case of Services, hereunder. Any partial cancellation shall not affect Seller’s obligations with respect to the un-cancelled portions of the Purchase Order. Seller agrees that Buyer shall have no liability for cancellation of the Purchase Order for standard Products. In the event of any cancellation of the Purchase Order for nonstandard Products, Seller agrees to stop all affected work immediately, shall take all steps reasonably necessary to minimize any liability with respect to Products to be delivered by Seller hereunder, and shall promptly provide to Buyer a written inventory of all Product work in process and a written summary of all Seller’s third party obligations with respect thereto. Notwithstanding anything to the contrary herein, any claim for cancellation charges for nonstandard Products must be submitted to Buyer in writing, accompanied by supporting documentation, within thirty (30) days after receipt of Buyer’s cancellation notice. Buyer reserves the right to inspect Seller’s work in process and to audit all relevant documents prior to paying any claim by Seller. In no event shall any such claim for nonstandard Products exceed the total price for Products cancelled under such Purchase Order. Upon payment of such a claim, Seller shall promptly deliver to Buyer all associated work in process. Buyer shall have the right to cancel the Purchase Order without any liability upon written notice for Seller’s material breach. Such right of cancellation shall be in addition to any and all other rights of Buyer.
- PRODUCTS PACKING AND SHIPMENT. All Products shall be prepared for shipment according to Buyer’s instructions, in a manner which follows good commercial practice and adequate to ensure safe arrival. Seller shall mark all containers with necessary lifting, handling and shipping information, purchase order numbers and the names of Buyer and Seller. All shipments shall be accompanied by an itemized packing list. Seller shall not make, and Buyer shall have no obligation to accept, any partial shipments or shipments received before the date specified herein. Unless otherwise specified herein, all shipments shall be DDP (Incoterms, 2010) Buyer’s shipping address on the Purchase Order (or other Buyer designated facility). Title and risk of loss shall pass to Buyer at the DDP delivery point; provided, however, that the risk of loss shall remain with Seller as to any Products which are not accepted by Buyer, which are rejected by Buyer, or as to which Buyer’s acceptance has been revoked.
- ACCEPTANCE. Payment for Products or Services ordered hereunder shall not constitute acceptance. All Products, and work product in the case of Services, are subject to Buyer’s inspection and test before acceptance at Buyer’s premises. No Product or Services shall be deemed accepted by Buyer until Buyer has given written notice of such acceptance to Seller. Buyer shall have the right to reject or require the correction of any Product or re-performance of any Service found to be defective (in which case Seller shall promptly correct or replace such Product or reperform such Service) or to accept such Product or Service with a reasonable reduction in price.
- QUANTITIES AND CHANGES. Buyer may, at any time, upon written notice, increase or decrease Product quantities, change delivery dates, or make changes with respect to the method of Product shipping or place of Product or Services delivery. In the event any such change causes an increase in the cost or the time required by Seller for performance of the Purchase Order, and Seller so notifies Buyer in writing within fifteen (15) days, then an equitable adjustment will be made in the Product or Services price or delivery schedule subject to agreement of the parties.
- CONFIDENTIALITY. All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by or on behalf of Buyer to Seller in connection with the Purchase Order Terms, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, is considered the confidential information of Buyer and all work product hereunder shall be deemed the confidential of Buyer. Seller agrees that all such confidential information shall remain Buyer’s property, shall not be disclosed to anyone other than Seller’s employees who have a reasonable need to know for purposes of Seller’s performance hereunder and who are subject to confidentiality obligations no less restrictive than those contained herein, shall be used only for purposes for performance under the Purchase Order Terms and shall be promptly returned to Buyer upon request; provided that if any such confidential information is provided under a separate confidential disclosure agreement executed by the parties, the terms of such confidentiality agreement will control. Buyer shall have the right to enforce this Section 5 and any of its provisions by injunction, specific performance or other equitable relief from any court of competent jurisdiction, without bond and without prejudice to any other rights and remedies that Buyer may have for any violation of this Section 5 and notwithstanding anything to the contrary herein.
- DISCLAIMER; LIMITATION OF LIABILITY. BUYER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS ARISING FROM OR RELATING TO THIS ORDER OR ANY PRODUCTS OR SERVICES SPECIFIED IN THIS ORDER, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUYER’S LIABILITY TO SELLER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING FROM OR RELATING TO THIS ORDER OR ANY PRODUCTS OR SERVICES SPECIFIED IN THIS ORDER EXCEED THE AMOUNT OF THE PURCHASE PRICE STATED ON THIS ORDER FOR THE PRODUCTS OR SERVICES IN DISPUTE. SELLER AGREES THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION REPRESENTS A DELIBERATE ALLOCATION OF RISK AND THAT BUYER WOULD NOT ENTER INTO THIS ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
- SERVICES. If the Purchase Order identifies any Services, Seller shall perform such Services in a timely, professional, and workmanlike manner, through qualified personnel, and in accordance with any time schedule and/or specification agreed upon by the parties. If Buyer requests, Seller will promptly re-perform any Service that does not conform to the foregoing requirements.
(a) Seller agrees that if, in the course of performing the Services, Seller or any agent, subcontractor, consultant or any other party fulfilling the Seller’s obligations hereunder (each, a “Seller’s Representative”) incorporates into any work product or utilizes in the performance of the Services any pre-existing invention, discovery, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by Seller or Seller’s Representative(s) or in which Seller or Seller’s Representative(s) has an interest (“Prior Inventions”), Seller hereby (i) grants to Buyer a nonexclusive, royalty-free, paid up, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) under such Prior Inventions to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the work product and (ii) ensures that, at no cost to Buyer, that the Seller’s Representatives grant to Buyer a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) under such Prior Inventions to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the work product. Seller will not and shall ensure Seller’s Representatives will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any work Product without Buyer’s prior written authorization.
(b) Without limiting any other remedies available in law or equity, Seller agrees that anything resulting from the Purchase Order or the Purchase Order Terms, including without limitation any and all intellectual property therein, is work product; provided, however, that any and all pre-existing methods, processes or other technology used by Seller in performing the Services, improvements thereto that are not specific to Buyer’s products or technology and patent or other intellectual property rights therein, shall not be work product and shall remain the property of Seller. Seller acknowledges and agrees that all right, title and interest in and to any work product shall be the sole property of Buyer whether the Services to be performed are completed or not. Seller hereby assigns to Buyer all of Seller’s right, title and interest in and to the work product. Seller shall ensure that, at no cost to Buyer, all of Seller’s Representatives that contribute to any work product have agreed in advance in writing that all right, title and interest in and to such contributions is assigned and will be assigned to Buyer or Seller, and that they waive any moral or similar rights to object to modifications, adjustments or additions to their contributions. If any agreements with any of Seller’s Representatives provide such rights in and to work product to Seller rather than to Buyer, Buyer shall acquire all such rights in such Seller’s Representatives’ contributions by operation of this provision. All work product and any reproductions thereof shall be surrendered to Buyer by Seller upon completion or termination of the Purchase Order, whichever occurs first. Work product may be used by Buyer without restriction and may not be used by Seller or Seller’s Representatives, if any, without Buyer’s prior written consent.
- SOFTWARE LICENSE. To the extent any Products include software, Seller hereby grants to Buyer a nonexclusive, royalty-free, paid up, perpetual, irrevocable, transferable, worldwide license to perform, display, reproduce, modify and create derivative works of, use, and distribute such software in furtherance of Buyer’s business. If such software is provided under a separate license agreement executed by the parties, the terms of such license agreement will control.
- PRICE; INVOICES; PAYMENT. The prices for Products and/or Services in the Purchase Order may not be increased without the prior written consent of Buyer. If there is a general price reduction for Products and/or Services, the price to Buyer hereunder shall be reduced to such lower price (less all applicable discounts) effective upon the date of such general price reduction. Seller will submit to Buyer invoices in duplicate showing the following information to the extent applicable: (a) Purchase Order number; (b) item number; (c) description of Products or Services; (d) quantity of item(s); (e) unit prices; (f) each applicable tax; and (g) any other information specified elsewhere herein. A bill of lading or express receipt must accompany each invoice relating to the Products or Services. Buyer will pay all undisputed invoiced amounts no later than forty-five (45) days after acceptance of the Products, or work product in the case of Services, for which the invoice was issued. Payment of invoice will be subject to adjustment for errors, shortages, defects in the goods or other failure of Seller to meet the requirements of the Purchase Order Terms. Once any Products or work product ordered hereunder are shipped, Seller shall have no security interest in such goods or in the proceeds of such goods.
- WARRANTY. Seller warrants that all Products and Services provided hereunder: shall be new and free from defects in workmanship, materials and design (except where such design has been provided solely by Buyer); shall comply with applicable law; shall conform to the Purchase Order Terms and the published or mutually agreed upon specifications and samples or prototypes; and shall be free from claims or liens of third parties, including without limitation any mechanics liens or other encumbrances. With respect to any Products or Services which fail to comply with the foregoing warranties, Seller shall accept return of such Products, or work product in the case of Services, from Buyer (at Seller’s expense), and at Buyer’s option (and Seller’s expense) promptly: (a) repair such Products or work product to correct the nonconformance and return such Products or work product to Buyer; (b) replace such Products or work product with Products or work product that do so conform and return them; or (c) refund all amounts paid to Seller for such non-conforming Products or work product. Buyer shall have no liability for any returned Products or work product, and Seller shall bear all liability, responsibility and expenses therefor. Buyer’s approval of Seller’s materials, design or manufacturing or other processes shall not alter the foregoing warranties.
- INDEMNITY. Seller shall indemnify Buyer and its officers, directors, partners, agents, employees, and clients (each, an “Indemnified Party”)
and hold them harmless from and against any costs, expenses, losses, damages or liabilities (including attorneys’ fees) arising from or related to any claim, demand, threat, suit or proceeding regarding any: (a) actual or alleged infringement of any worldwide patent, copyright, trade secret, trademark, maskwork or other third party right arising from or related to the use or sale by an Indemnified Party of any Products or work product furnished hereunder; (b) alleged defect in the Products or work product, including without limitation any failure of the Products or work product to comply with their specifications; (c) any breach of these terms, including without limitation any breach of warranty hereunder; and (d) negligent or intentional acts, errors, or omissions by Seller, its employees, officers, agents, or representatives in performance of its obligations under these terms (each, a “Claim”). Buyer shall notify Seller of any such Claim, and Seller shall defend or settle, at its own expense, each and every such Claim. If an injunction restricting an Indemnified Party’s rights with respect to any Product or work product issues or appears reasonably likely to issue as a result of any such Claim, Seller agrees at its expense, and at Buyer’s sole option, to: (w) procure for Buyer the right to continue using such Products or work product; (x) replace such Products or work product with non-infringing Products or work product; (y) modify the Products or work product to become non-infringing; or (z) refund to Buyer the full amount paid for such Products or applicable Services.
- GENERAL. Seller will comply with all statutory requirements and regulations applicable to the performance of its obligations hereunder. If Services are ordered under the Purchase Order, Buyer and Seller agree that Seller is an independent contractor and that no partnership or joint venture shall be deemed to exist between them. Neither the Purchase Order Terms nor any rights or obligations of Seller may be assigned by Seller in whole or in part. Any assignment in derogation of the foregoing shall be void. Buyer may freely assign any of its rights or obligations or the Purchase Order Terms. Seller will comply with all statutory requirements and regulations applicable to the performance of its obligations hereunder. The rights and remedies provided to Buyer herein shall be cumulative and in addition to any other rights and remedies provided by law or equity. If any part of the Purchase Order Terms is found by any competent authority to be invalid or unenforceable, the Purchase Order Terms will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of the Purchase Order Terms will remain in full force and effect. No part of the Purchase Order Terms shall be deemed waived or modified except in a writing signed by both parties. A waiver of any of the provisions of the Purchase Order Terms shall not affect the right to enforce such or any other provision. No delay or omission by Buyer exercising any right or remedy shall constitute a waiver of such right or remedy, or prejudice the right of Buyer to enforce such right or remedy at any subsequent time. Any notice required or permitted to be given pursuant to the Purchase Order Terms shall be sent, if to Buyer, by email to LegalNotices@tunetx.com, or if to Seller, by certified mail, return receipt requested, to Seller at Seller’s place of business, to the attention of such person as Seller may specify for itself in writing. The Purchase Order Terms are to be construed and interpreted according to the laws of the State of Washington, USA, without regard to any conflict of laws principles that would require application of the laws of a different jurisdiction. The state and federal courts located in Seattle, Washington, USA shall have sole jurisdiction over any disputes arising hereunder, and the parties hereby submit to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.