Terms and Conditions for Purchase Order
These terms and conditions (“Terms”) apply to and govern the sale and delivery of goods and/or services (“Goods” and “Services”, respectively) pursuant to a purchase order (a “Purchase Order”) issued from Mirati Therapeutics, Inc. (“Buyer”) to any third party (“Seller”) unless agreed to otherwise in writing by Buyer (including, for example, in a services agreement or statement of work).
- Price; Taxes. The prices for Goods and Services are as set forth in the Purchase Order. Unless otherwise expressly stated in writing, the prices set forth in the Purchase Order include (i) all applicable taxes, including all foreign, federal, state, local sales and value-added taxes (“VAT”), subject to receipt of a VAT invoice, (ii) all charges for packaging, shipping, carriage, insurance and/or delivery of the Goods and Services at Buyer’s address designated in the Purchase Order, and (iii) any duties, imposts or levies other than VAT. Buyer has no responsibility for any taxes on Seller’s net income.
- Invoices; Payments; Discounts. Seller shall submit an invoice to Buyer after delivery of the Goods and Services to Buyer. Buyer shall pay Seller for undisputed amounts set forth in Seller’s invoice in the time period agreed to by the parties. Each invoice shall be accompanied by a bill of lading as applicable, and shall include the Purchase Order number, Buyer’s part number as applicable, a description of the Goods and Services, and applicable quantities and unit prices. Seller may use Seller’s standard form of invoice; however, any terms therein shall be without any effect to the extent such terms add to, subtract from, or modify these Terms. Any discount applicable to Goods and Services shall be computed from the latest of: (a) the scheduled delivery date, (b) the actual delivery date, or (c) the date an acceptable invoice is received by Buyer. For discount calculation purposes, payments to Seller shall be deemed to have been made on the date that Buyer issues such payment.
- Delivery; Risk of Loss; Cancellation. Time is of the essence. Delivery of Goods and Services shall be strictly in accordance with the delivery schedule set forth in the Purchase Order, and Seller will report any delivery delays to Buyer immediately. Receipt of such report shall not operate as a waiver of any of Buyer’s rights hereunder. Unless otherwise specified herein, all shipments shall be DDP (Incoterms) with delivery to the location(s) designated by Buyer. Title and risk of loss shall pass to Buyer at Buyer’s designated delivery point; provided, however, that the risk of loss shall remain with Seller as to any Goods that are not accepted by Buyer, that are rejected by Buyer, or as to which Buyer’s acceptance has been revoked. 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 Goods or performance of the Services hereunder. Any partial cancellation shall not affect Seller’s obligations with respect to the uncancelled portions of the Purchase Order. Except with respect to Goods delivered to and accepted by Buyer and Services performed for Buyer to Buyer’s satisfaction as of the cancellation date, Seller agrees that Buyer shall have no liability for cancellation of the Purchase Order prior to delivery of Goods to or performance of Services for Buyer. Buyer also shall have the right to cancel the Purchase Order upon written notice for the material breach of the Terms by Seller, and without further liability to Seller or to any third party. Such right of cancellation shall be in addition to any and all other rights of Buyer.
- Acceptance. All Goods and Services are subject to Buyer’s inspection including testing before acceptance at Buyer’s premises. If any inspection is made on Seller’s premises, Seller shall provide Buyer’s inspectors with reasonable facilities and assistance at no additional charge. No Goods or Services shall be deemed accepted by Buyer until Buyer has given written notice of such acceptance to Seller; provided, however, that if Buyer has not rejected such Goods or Services within sixty (60) calendar days of delivery or performance, respectively, thereof, such Goods or Services shall be deemed accepted by Buyer. Payment for Goods and Services ordered hereunder shall not constitute acceptance. Buyer shall have the right to reject or require the correction of any Goods or Services found to be defective, which Goods and Services shall be promptly replaced or corrected by Seller.
- Packing and Shipment. All Goods shall be prepared for shipment according to Buyer’s instructions, in a manner which follows good commercial practice, acceptable to common carriers for shipment at the lowest rate, and adequate to ensure safe arrival. Seller shall clearly mark all containers with necessary lifting, handling and shipping, and storage conditions information, Purchase Order numbers, date of shipment 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 delivery date specified in the Purchase Order, except with Buyer’s prior written authorization thereof.
- Work Product; License. All deliverables, software, reports, information, intellectual property and other information and work product provided by Seller or prepared or developed by or on behalf of Seller for Buyer pursuant to the Purchase Order with respect to the Goods and Services (“Work Product”) is the property of Buyer, constitutes works made for hire under applicable law, and is hereby assigned to Buyer. Seller agrees to complete any documents reasonably requested by Buyer to perfect its ownership in the Work Product. Seller waives all moral rights related to the Work Product. Seller hereby grants to Buyer a nonexclusive, irrevocable, perpetual, worldwide, fully paid, royalty-free license (including the right to grant sublicenses through multiple tiers of distribution) to use, reproduce, create derivative works of, publicly perform, publicly display, and utilize Seller intellectual property embedded in or constituting part of the Goods and Services (or provided separately), including any software portion thereof, and Buyer may make a reasonable number of copies thereof for backup purposes, which copies shall be deemed part of the foregoing license.
- Warranties. In addition to all other warranties, express, implied or statutory, Seller warrants that the Goods and Services shall be merchantable, of satisfactory quality, free from defects in workmanship, materials and design, fit and sufficient for the purposes intended, conform to Buyer specifications and instructions, and free from claims or liens of third parties, including without limitation any mechanics liens or other encumbrances (together, “Warranties”). With respect to any Goods and Services that are defective or otherwise fail to conform to the Warranties, Seller shall, at its expense, promptly: (a) repair or replace (at Buyer’s option) the Goods and/or reperform the Services to Buyer’s satisfaction; or (b) refund all amounts paid to Seller for such non-conforming Goods and Services. Buyer shall have no liability for any defective or nonconforming Goods and Services, and Seller shall bear all liability, responsibility and expenses therefor.
- Indemnities. Seller shall indemnify, defend and hold harmless Buyer and Buyer’s customers from and against any costs, expenses, losses, damages or liabilities (including attorneys’ fees) arising from or related to any third party claim, demand, threat, suit or proceeding regarding: (a) actual or alleged infringement of any worldwide patent, copyright, trade secret, trademark, registered design, maskwork or other third party right arising from or related to the use or sale by Buyer or use by Buyer’s customers of any Goods and Services furnished hereunder; (b) alleged defect in the Goods and Services, whether latent or patent, including without limitation any failure of the Goods and Services to conform to the Warranties; or (c) any breach of the Terms by Seller, including any breach of the Warranties (collectively, a “Claim”).
- Governmental Compliance. Seller will comply with all statutory requirements and regulations applicable to the manufacture and sale of Goods and performance of Services and Seller’s obligations hereunder.
- Waiver. No part of the Purchase Order or these Terms shall be deemed waived or modified except in writing and signed by both parties. A waiver on one or more occasions of any of the provisions of the Purchase Order or these Terms by either party shall not affect the right to enforce such or any other provision at a later time. No delay or omission by a party exercising any right or remedy shall constitute a waiver of such right or remedy, nor prejudice the right of such party to enforce such right or remedy at any subsequent time.
- Confidentiality. Buyer and Seller acknowledge that in their course of dealings, Seller may acquire from Buyer confidential and proprietary information about Buyer, its business activities and operations, its employees, trade secrets or any other information which by its nature should reasonably be considered confidential information of Buyer (“Confidential Information”). The Confidential Information will only be disclosed to Seller’s employees, agents or consultants (“Representatives”) who need to know the same for the performance of the Purchase Order and who are under a written obligation to keep the information confidential. Seller and its Representatives will: (a) use the Confidential Information exclusively for the purpose of performing the Purchase Order; (b) not disclose the Confidential Information to any third parties; and (c) use the same degree of care they use to protect the confidentiality of their own confidential information, but no less than reasonable care, to prevent the unauthorized disclosure or use of Confidential Information.
- Relationship of the Parties. In the performance of Services, Seller shall act solely as an independent contractor and nothing in the Purchase Order or these Terms shall be construed to give Seller the power or authority to act for, bind or commit Buyer. Except as otherwise provided in the Purchase Order or these Terms, Seller retains the sole and exclusive right to control or direct the manner or means by which the Services are to be performed.
- Miscellaneous. The Purchase Order is made under and governed by the laws of the State of California. The state and federal courts located in San Diego, California, 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. Seller shall not assign or otherwise transfer any of its rights or obligations under the Purchase Order, in whole or in part, without the prior written consent of Buyer, and any such attempted assignment shall be void. 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. The Purchase Order and these Terms reflect the complete agreement between Buyer and Seller with respect to this subject matter, and supersede all prior and contemporaneous negotiations, communications and agreements with respect thereto. No modification, alteration or amendment of the Purchase Order or these Terms shall be effective unless in writing and signed by duly authorized representatives of both parties.