Terms of Purchase

1. PURCHASE OF GOODS. Unless ASO LLC (“Buyer”) and Seller have previously entered into a written agreement executed by authorized representatives of each party expressly intended to govern the sale of Goods (as defined herein), Seller will sell and Buyer will purchase such equipment and other products (the ‘Goods’) as Buyer agrees to buy pursuant to the terms and conditions of this purchase order (the “Order”). All purchase of Goods by Buyer from the Seller will be made solely pursuant to the Order and only such other documents as are incorporated herein by specific reference.
2. ACCEPTANCE OF ORDER. Seller will acknowledge acceptance of this Order by signing and returning the acknowledgment copy of this Order within five (5) days of Seller’s receipt of this Order. Seller’s shipment of the Goods or commencement of work to be performed hereunder in response to this Order without return of the signed acknowledgment copy of this Order and absent a notice of termination pursuant to Paragraph 3 herein shall be considered acceptance by Seller of this Order and acceptance of the terms and conditions contained herein. Buyer reserves the right to withhold payment until a signed acknowledgment copy of this Order has been received by Buyer.
3. TERMINATION OF ORDER. Buyer reserves the right to terminate this Order, or any portion hereof, at any time prior to the date of delivery of Goods contained in this Order without penalty, charges or costs to Buyer of any kind. Additionally, Buyer may immediately terminate this Order without liability, in the event of the insolvency of Seller or any assignment by Seller for the benefit of its creditors. Termination pursuant to this paragraph will be effective upon Seller’s receipt of written notice of same from Buyer.
4. DELIVERY, RESCHEDULING AND DIFFERENT OR DIFFERENT TERMS. With respect to performance under this Paragraph 6, TIME IS OF THE ESSENCE. Seller will deliver the Goods within the time or times specified in this Order. If Seller is unable to meet this delivery date, Seller shall, within five (5) days after its receipt of this Order, give written notice to Buyer of a proposed new delivery date for this Order. Upon receipt of such notice, Buyer has the option to cancel this order or inform Seller of its acceptance of the proposed new delivery date. Upon giving Seller written notice prior to the delivery date specified in this Order, Buyer may postpone the delivery of all or parts of the Goods ordered pursuant to this Order and set a new delivery date. Failure by Seller to deliver the Goods within the time or times specified and in the quantity or quality specified shall give the Buyer the option of accepting all or part of the goods or rejecting all or part of the goods. Upon the failure by Seller to deliver the Goods as required hereunder, Buyer may cancel this Order, buy the Goods elsewhere and charge Seller with any loss incurred by Buyer as result of Seller’s failure to make timely delivery. Any Goods delivered to Buyer pursuant to the cancelled Order may be received, held and returned by Buyer to Seller at Seller’s risk and expense. Each shipment received by Buyer from Seller shall be only upon the terms and conditions contained in this Order and such other terms written terms as are accepted by Buyer’s authorized representative in writing. Any terms and conditions contained in any invoice or other writing sent by Seller to Buyer that are different from or additional to the terms and conditions stated in this Order shall be deemed rejected by Buyer and shall not be binding upon Buyer unless Buyer explicitly accepts such different or additional terms in in writing signed by an authorized representative of Buyer.
5. QUANTITY. Unless otherwise authorized prior to shipment, in writing by Buyer, the quantity of Goods specified in this Order must not be exceeded. Buyer reserves the right to return, at Seller’s cost, for full credit any Goods shipped to Buyer in excess of the quantity set forth in this Order. Seller will be fully responsible for all costs and expenses associated with any such excess shipments and will reimburse Buyer for any costs or expenses incurred by Buyer in connection therewith.
6. QUALITY. Seller shall ensure Goods are manufactured in accordance with the Buyer’s specifications, applicable laws (including, without limitation, cGMP) and industry standards. Any specifications referred to in this Order shall be deemed to be an integral part hereof and incorporated herein for all purposes. Goods delivered pursuant to this Order must be of the quality specified or, in the event no quality is specified, must be merchantable and of the level of quality generally accepted in the industry. All Goods will be subject to the inspection and approval of Buyer. If the Goods are rejected by Buyer, Buyer will notify Seller in writing and Buyer may return the Goods to Seller at Seller’s risk and expense.
7. TRANSPORTATION CHARGES. No charge will be allowed by Seller for packing, boxing, draying or storage unless specifically stated in this Order. All costs for proper packing and preparation for shipping are to be included in the price of the Goods and are to be appropriate for the method of shipment specified or expected. Seller will bear the expense of transporting the Goods to Buyer, including any and all shipping, loading, and any other expense of transportation, unless Buyer agrees otherwise in writing. Seller will be responsible for obtaining adequate insurance covering the Goods contained in this Order while the Goods are being transported to Buyer and until the risk of loss has passed to the Buyer. Title and risk of loss of the Goods shall pass to the Buyer upon tender of the Goods by Seller at the point of delivery specified in this Order. However, if the Goods fail to conform to the specifications contained in this Order, the risk of loss and title to the Goods shall remain with Seller. Seller will be responsible for any damage to the Goods prior to tender to Buyer and shall be responsible for pursuing such damage claims with the shipper.
8. MARKING. Seller will mark each package, box or container with necessary lifting, loading and shipping information. All packing tickets or Seller’s invoices included with the shipment shall contain Buyer’s Order number, quantity, description of contents, number of shipping splits, date of shipment, Seller’s name and address, Buyer’s name and address and point of delivery, all exactly as set forth in the Order and using nomenclature set forth herein.
9. DOCUMENTATION. Seller will provide to Buyer in the line specified on the face of this Order or, if not specified, on or before the date of delivery of the Goods, a set of all current manuals and documentation concerning the installation and operation of the Goods contained in this Order and any applicable test data, Certificates of Analysis or Certificates of Compliance that may be specified.
10. INSPECTION. Buyer reserves the right to reject any Goods that fail to conform to any applicable warranties or are shipped contrary to shipping instructions and to return such Goods at Seller’s risk and expense. This right includes Buyer’s right to reject all Goods contained in this Order even if only a part of the Goods fail to conform with warranties or shipping instructions. Unless otherwise specified in this Order, Buyer’s count and/or test results are deem conclusive. Goods returned pursuant to any provision of this Order are not to be replaced except on Buyer’s written instructions.
11. RIGHT OF ENTRY. Buyer or Buyer’s customer shall have the right upon reasonable prior notice to enter the premises of the Seller during normal business hours to inspect Goods and/or audit processes and systems to ensure conformance with specifications, procedures, and any applicable regulatory and/or statutory requirements.
12. PAYMENT. All payment due dates will comply with this Order and will be calculated from the date Seller’s invoice is received and approved by Buyer. Seller’s invoice will contain Buyer’s order number, a description of Goods including part number, quantities and unit prices. All discounts offered for cash or other applicable discounts will appear on invoices sent to Buyer. Delays in receiving invoices and material errors and omissions on invoices will give Buyer the right to withhold payment of the entire invoice or Order amount without losing any applicable discounts. An acceptance schedule of values for Goods furnished hereunder must be agreed to by Buyer before any partial payment will be processed.
13. TAXES. In the event any tax or special charge levied on the Goods is subsequently determined to have been erroneously or illegally collected from Buyer, Seller shall promptly remit to Buyer the amount of such tax or charges. Any taxes to be paid by Buyer shall be separately stated on Seller’s invoice.
14. WARRANTIES. Seller expressly represents and warrants to Buyer that the Goods will conform to the drawings, specifications, samples or any other descriptions furnished or adopted by Buyer, and herein incorporated for all purposes, and that the Goods will be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects. Seller will provide all service and parts necessary to correct any defects at no cost or expense to Buyer. Seller will also be responsible for all costs of Buyer and/or others in the removal, repair, shipping and installation of defective parts or pieces of equipment. Additionally, Buyer will arrange, at Seller’s expense, for the Goods to be shipped to repair locations and returned to Buyer’s location after such repairs are completed. Seller warrants that title to Goods is free and clear of any and all security interests and other liens. Buyer or Buyer’s customer or user may, without relieving Seller of his obligations to repair or replace any defective Goods, effect emergency corrections and repairs which Buyer and/or Buyer’s customer reasonably determines are necessary to minimize loss or damage. The period of the warranties set forth herein shall coincide with and extend for the period of Buyer’s warranty obligations to its customer and such warranty periods shall not begin until acceptance of the Goods by Buyer’s customers. Seller expressly warrants and represents to Buyer that the Goods have been produced, and services in connection with the Goods have been performed, in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, The California Transparency in Supply Chains Act and all other applicable federal, state and local laws, rules and regulations. Seller warrants that the price charged for the Goods is not in violation of any law or government decree, order, rule, or regulation.
15. INDEMNIFICATION. Seller agrees to indemnify, defend and hold harmless Buyer against any and all liabilities whatsoever for damages and/or injuries resulting from defective materials or workmanship in the Goods, including all costs and reasonable attorney’s fees. Furthermore, if Seller or its employees or agents enter Buyer’s, or Buyer’s customer, facilities, Seller will indemnify and hold Buyer and its customers, their agents, employees and contractors harmless from any loss, damage or liability, including all costs and reasonable attorney’s fees arising as a result of, or during the course of, Buyer’s visit. If any litigation arises between the Buyer and Seller with respect to the Order, the prevailing party, in addition to any other relief that may be granted, will be reimbursed for the costs of litigation, including with limitation, reasonable attorney’s fees and expenses.
16. CONFIDENTIALITY. All drawings, specifications, writings and other documents supplied by Buyer with this Order, and herein incorporated for all purposes, are confidential and Seller will protect all such confidential information it receives from disclosure to any and all parties, with the exception of Seller’s employees who have a need to know in order for Seller to perform hereunder. Seller will not use, duplicate, reproduce, distribute or disclose any confidential information contained in this Order without Buyer’s prior written consent. In the event Seller breaches any of the provisions herein, Buyer, in addition to any remedies it may have at law or in equity, will be entitled to a restraining order, injunction or other similar remedy.
17. PATENTS. Seller guarantees that Buyer’s purchase, use or sale of the Goods will not infringe any valid United States or foreign patent or copyright. Seller will defend any claim, action or suit that may be brought against Buyer for patent or copyright infringement by reason of Buyer’s purchase, use or sale of the Goods. Seller will indemnify Buyer and hold Buyer harmless against all judgments, decrees, damages, costs and expenses, including attorneys’ fees and legal expenses, recovered against Buyer or sustained by Buyer on account of any such actual or alleged infringement.
18. TOOLS. All blueprints, patterns or tools prepared pursuant to production of the Goods specifically for, and created on behalf of Buyer, the cost for which are paid by Buyer will be the property of the Buyer and may be removed by Buyer.
19. FORCE MAJEURE. Neither Buyer nor Seller shall be liable for delay in its performance of this Order, due to strike, riot, fire, flood, war, accident or other causes beyond its control and without its fault or negligence provided, however, that if such delay extends over thirty (30) days, the other party may terminate this Order without liability.
20. SEVERABILITY. In the event one or more of the provisions or parts contained in this Order is for any reason held invalid, illegal or unenforceable in a court of competent jurisdiction, then the remainder of this Order shall not be affected thereby. In lieu of a provision which is invalid, illegal or unenforceable, there shall be substituted a valid, legal and enforceable provision as similar in terms as possible.
21. WAIVER. No failure to exercise and no delay in exercising any right contained in this Order shall operate as a waiver thereof; nor shall any failure to exercise or partial exercise of any right preclude any other or further exercise thereof or preclude the exercise of any other right.
22. NOTICE. All notices or other communications shall be in writing and shall be mailed, faxed or delivered to the applicable party at the address set forth in this Order.
23. SET OFF. In the event Seller defaults hereunder, Buyer will have the right to set off and apply monies owed to Seller by Buyer under any other contracts and/or orders against monies owed to Buyer by Seller hereunder. Such right of set off shall be in addition to all other remedies of Buyer at law or in equity. Seller agrees that any dispute with respect to this Order will not affect Seller’s obligations with respect to other orders accepted by Seller and Seller agrees to continue performance under such other orders.
24. SUCCESSORS AND ASSIGNS. Seller shall not assign this Order, or any interest herein, without Buyer’s prior written consent. Seller shall not subcontract all or any material portion of this Order without Buyer’s prior written consent. This Order shall be binding upon, and inure to the benefit of Buyer, Seller and their respective successors and permitted assigns.
25. GOVERNING LAW. This order shall be governed by and construed in accordance with the laws of the State of Florida.
26. FINAL AGREEMENT. This order constitutes the entire statement of all of the terms of contract between Buyer and Seller and supersedes all prior agreements and understandings with respect to this Order. This Order represents the final agreement among Buyer and Seller and may not be contradicted by evidence of prior or contemporaneous oral agreements. The terms and conditions contained in this Order may not be altered, modified, superseded, amended or rescinded and no additional terms shall become a part of this Order, except pursuant to a writing specifically referencing this Order, signed by an authorized representative of Buyer and delivered by Buyer to Seller.
27. REQUIRED REGULATORY CHANGES. Should either party learn or receive notice of any changes that are required by applicable law (including, without limitation, notices relating to cGMP), industry standards or regulatory authorities with respect to the quality and/or manufacture of Goods, a party shall promptly notify the other party of such required changes. Seller shall implement such changes within the time frame required by such applicable law, industry standards or regulatory authorities.
28. INSURANCE. Seller will name Buyer as additional insured under its Product Liability coverage, specifically, as it relates to Goods; and Seller will provide Buyer with evidence of coverage via a Certificate of Insurance within fifteen (15) days after receipt of Order.