Purchase Order Terms and Conditions of Purchase

Last updated: 18 May 2023


 APPLICABILITY. (a) These PO terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Caligor Opco LLC (or one of its affiliates or subsidiaries) (herein “CalCog”) from the supplier named on CalCog’s PO (“Supplier”). CalCog procures Goods and Services for its benefit, and CalCog may procure Goods and/or Services for the benefit of its clients (each, a “Client”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and/or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The PO (“PO”) and these Terms (collectively, a PO and these Terms, this “Agreement”) comprise the entire agreement between the CalCog and Supplier (the “Parties”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Supplier’s general terms and conditions regardless of whether or when Supplier has submitted its sales confirmation or such terms. This Agreement expressly limits Supplier’s acceptance to the terms of this Agreement. Fulfillment of or other performance under a PO constitutes acceptance of these Terms.

CHANGE ORDER. CalCog may at any time, by written instructions issued to Supplier (each a “Change Order”), order changes to the Goods and/or Services. Supplier shall within 10 days of receipt of a Change Order submit to CalCog a firm cost proposal for the Change Order. If CalCog accepts such cost proposal, Supplier shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. A Change Order may or may not entitle Supplier to an adjustment in the Supplier’s compensation or the performance deadlines under this Agreement.

DELIVERY OF GOODS AND PERFORMANCE OF SERVICES. Supplier shall deliver the Goods in quantities and on the date(s) specified in the PO or as otherwise agreed in writing by the Parties (the “Delivery Date”). If Supplier fails to deliver the Goods in full on the Delivery Date, CalCog may terminate this Agreement immediately by providing written notice to Supplier and Supplier shall indemnify CalCog against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the Delivery Date. Supplier shall deliver all Goods to the address specified in the PO (the “Delivery Point”) as instructed by CalCog. Supplier shall pack all goods for shipment according to CalCog’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition and in accordance with instructions, if applicable. Supplier shall provide the Services to CalCog as described and in accordance with the dates or schedule set forth on the PO and in accordance with these Terms. Supplier acknowledges that time is of the essence with respect to Supplier’s obligations hereunder and the timely delivery of the Goods and Services.

QUANTITY; SHIPPING TERMS. If Supplier delivers less than the quantity of Goods ordered, CalCog may reject all or any excess Goods. Any such rejected Goods shall be returned to Supplier at Supplier’s sole risk and expense. If CalCog does not reject the Goods and instead accepts the delivery of Goods at the reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis. Delivery shall be made in accordance with the terms set forth on the PO. The PO number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the PO. Title and risk of loss passes to CalCog upon delivery of the Goods at the Delivery Point.

PRICE. The price of the Goods and Services is the price stated in the PO (“Price”). No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of CalCog.

PAYMENT TERMS. Supplier shall issue an invoice to CalCog on or any time after the completion of delivery and only in accordance with these Terms. CalCog shall pay all properly invoiced amounts due to Supplier set forth on the PO after CalCog’s receipt of such invoice, except for any amounts disputed by CalCog in good faith. All payments hereunder must be in the currency set forth on the PO. Without prejudice to any other right or remedy it may have, CalCog reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by CalCog to Supplier.

DELAY, NON-COMPLIANCE. Supplier agrees to notify CalCog immediately upon becoming aware of any event which will or may be expected to cause a delay to delivery of Goods and/or Services or impact the quality of the Goods and/or Services. All intended communications from Supplier to the Client regarding the activities of Supplier must also go through the assigned CalCog’s designee (including an applicable Client designee), unless otherwise specified in writing by CalCog. Supplier will determine the method, details and means of performing the Services. In the event CalCog or its Client determines that the Services are unsatisfactory or otherwise noncompliant with this Agreement, the relevant PO or applicable laws, rules or regulations, Supplier shall, at CalCog’s or Client’s discretion: (i) re-perform or cause to be re-performed by a qualified substitute, the nonconforming Services at Supplier’s cost to CalCog’s or Client’s reasonable satisfaction, or (ii) accept reduced payment or refund fees in the amount reasonably calculated by CalCog or Client for Supplier’s nonconformance. The preceding remedies are in addition to CalCog’s rights set forth in this Agreement or remedies that may be available to CalCog at law or equity.

SUBCONTRACTING. Supplier shall (a) obtain CalCog’s (or Client’s) written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Supplier, other than Supplier’s employees, to provide any Services to CalCog (each such approved subcontractor or other third party, a “Permitted Subcontractor”). CalCog’s approval shall not relieve Supplier of its obligations under the Agreement, and Supplier shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Supplier’s own employees; (B) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Supplier, are properly licensed, certified or accredited as required by Applicable Law and are suitably skilled, experienced and qualified to perform the Services.

GENERAL WARRANTIES. Supplier warrants to CalCog that (a) all Services (i) will confirm with applicable specifications  and other requirements specified by CalCog and set forth the applicable PO; (ii) are free and clear of all liens, security interests or other encumbrances; and (iii) not infringe or misappropriate any third party’s patent or other intellectual property rights, and (b) that Supplier (i) has the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder and (ii) shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. These warranties survive any delivery, inspection, acceptance or payment of or for the Services by CalCog and are cumulative and in addition to any other warranty provided by law or equity.

LIMITATIONS. in no event shall CalCog be liable to Supplier for any special, consequential, indirect, or incidental damages arising under or as a result of this Agreement (or the termination or breach hereof) or any PO, including the loss of prospective profits or anticipated sales, or loss of business or goodwill of Supplier, and (B) the sole liability of CalCog and any of its affiliates (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) for any and all claims in any manner related to this Agreement, including the Goods or Services, will be the payment of direct damages, not to exceed (in the aggregate) the total amount paid to Supplier under the applicable PO during the last twelve (12) months.

TERMINATION. CalCog may terminate a PO, at any time for its convenience, upon written notice to Supplier. In addition to any remedies that may be provided under these Terms, CalCog may terminate this Agreement (and any PO) with immediate effect upon written notice to the Supplier, either before or after delivery of the Services, if Supplier has not performed or complied with any of these Terms or a PO, in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then CalCog may terminate a PO and/or this Agreement upon written notice to Supplier. If CalCog terminates a PO and/or the Agreement for any reason, Supplier’s sole and exclusive remedy is payment for the Services received and accepted by CalCog prior to the termination, in addition, if applicable, costs and expenses set forth in a PO that are due and payable as of the date of termination or incurred in the furtherance of any pending PO as mutually agreed to in writing by the Parties.

 GENERAL INDEMNIFICATION. Supplier shall defend, indemnify and hold harmless CalCog, successors or assigns and their respective directors, officers, shareholders and employees and a Client (collectively, “Indemnitees” against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, 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 (collectively, “Losses”) arising out of or occurring in connection with the Services purchased from Supplier or Supplier ‘s negligence, willful misconduct or breach of the Agreement. Supplier shall not enter into any settlement without CalCog’s prior written consent.

 INTELLECTUAL PROPERTY INDEMNIFICATION. Supplier shall, at its expense, defend, indemnify and hold harmless CalCog and any Indemnitee against any and all Losses arising out of or in connection with any claim that Supplier’s or Indemnitee’s use or possession of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without CalCog’s or Indemnitee’s prior written consent.

 COMPLIANCE. Supplier shall comply with all applicable ordinances, rules, regulations, laws, guidelines, guidances, requirements and court orders of any kind whatsoever of any government regulatory authority, including cGMP, GMP and GDP and applicable data privacy laws and regulations (individually or collectively, “Applicable Law”). Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Supplier shall comply with all export and import laws of all countries involved in the sale (or resale) of goods forming part of the Services under this Agreement. Supplier assumes all responsibility for shipments of any such goods requiring any government import clearance. In addition, Suppler will comply with all CalCog policies and procedures that have been communicated to Supplier regarding access to and permitted conduct at CalCog’s. If Supplier procures Goods or Services hereunder subject to GXP, Supplier will execute and be subject to the terms of CalCog’s applicable quality agreement.

 PROPRIETARY RIGHTS. All documentation, information, and other materials controlled by CalCog and furnished to Supplier by or on behalf of CalCog or a Client (collectively with all associated intellectual property rights, “Materials”) are and will remain the exclusive property of CalCog or the applicable Client. Supplier will use Materials provided by CalCog only as necessary to perform the Services and will treat them in accordance with the requirements of this section. Supplier agrees that it will only use such Materials only as necessary to perform the Services or to comply with the terms of this Agreement. Without CalCog’s prior express written consent, Supplier agrees that it will not analyze such Materials, or make the Materials available to third parties. Supplier will not transfer Materials without CalCog or Client’s prior written consent or use any third-party facilities, personnel, resources or intellectual property in performing the Services that could result in a third party owning or having a right in any of the Materials.

 MISCELLANEOUS. The relationship between the parties is that of independent contractors. his Agreement (or any PO) shall not be assigned or transferred by Supplier without the prior written consent of CalCog. All notices required or permitted under this Agreement must be in writing and must be given by addressing the notice to the address for the recipient set forth in the applicable PO. Notices to CalCog will be marked “Attention: Financial Controller” with a copy being sent to [email protected]. Notices will be deemed to have been given (a) three (3) US business days after deposit in the mail with proper postage for first class registered or certified mail prepaid, return receipt requested or (b) one (1) US business day after sending by prepaid nationally recognized overnight delivery service. All provisions of this Agreement (or a PO) which are by their nature intended to survive the expiration or termination of this Agreement (or a PO) will survive such expiration or termination. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. No waiver of any of the terms of this Agreement shall be valid unless in writing and signed by authorized representatives of both parties. Failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances. This Agreement shall be governed by and construed according to the laws of the State of Texas, U.S.A, and the parties attorn to the jurisdiction of the courts in the State of Texas, U.S.A. Where the non-CalCog entity is domiciled outside of North America, this Agreement shall be governed by and construed according to the laws of the United Kingdom, and the parties attorn to the jurisdiction of the courts in the judicial district closest to Kent.