Time is and shall remain of the essence with respect to this order, and no act of Biomedical Polymers, Inc. dba BMP Medical, including modification of this order or acceptance of late deliveries, shall constitute a waiver of this provision. BMP Medical also reserves the right to (a) refuse or return at Seller’s risk and expense, shipments made in excess of the order or in advance of the scheduled delivery date(s) and (b) defer payment on advance deliveries until the scheduled delivery date. Unless otherwise specified in this order, all deliveries shall be FOB destination. Seller shall promptly notify BMP Medical of any event or potential event which may delay the timely performance of this order.
Products shall be suitable packed, marked and shipped in accordance with the requirements of common carriers and in the manner specified in this order. The cost of packing, transport, and storage is included in the price, unless otherwise noted in this order.
BMP Medical has the right to cancel this order or any part thereof at any time and for any reason prior to delivery. If cancellation is for cause, BMP Medical shall have no liability to Seller with respect to the cancelled part of the order. Cause shall include, without limitation, a breach of any of the Seller’s obligations hereunder, or the insolvency of Seller or an assignment by Seller for the benefit of creditors.
If cancellation is for BMP Medical’s convenience, (a) BMP Medical’s liability shall be limited to the authorized, actual expenditures of Seller incurred to fulfill this order up to the date notice of cancellation is received by Seller, but not to exceed the price of the products cancelled, but excluding any costs incurred for supplies and work in progress which may be used by Seller in Sellers’ normal course of business, and (b) Seller shall deliver to BMP Medical, all products completed for this order and all work in progress, as of the date of receipt of notice of cancellation, as BMP Medical may require.
BMP Medical may also suspend or reschedule Seller’s performance under this order at any time prior to delivery without liability or cost. Upon receipt of suspension notice, Seller will immediately cease performance under this order and take all responsible actions to mitigate costs for which BMP Medical will be liable hereunder in the event of cancellation.
BMP Medical may, at any time, make changes (a) in the applicable drawings, designs, or specifications, (b) method of shipment or packing, or (c) place of delivery by notifying Seller of such changes in writing. If any such change results in an increase in Seller’s costs or time to perform, Seller shall notify BMP Medical in writing of its’ claim for an adjustment to this order, and if, BMP Medical elects thereafter to proceed with the change, this order shall be amended to reflect a mutually agreed adjustment to the price or time of delivery. No claim by Seller for an adjustment in price or delivery terms shall be effective unless furnished to BMP Medical in writing within fifteen (15) days of it’s’ receipt of BMP Medical change notice.
Seller warrants that the price of the products ordered hereunder does not exceed the lowest price charged by Seller to its’ other customers at the time of delivery for the same quantities of comparable products. Unless otherwise noted, in the order, the price stated in this order shall include all taxes.
The seller shall only invoice BMP Medical for the products after delivery. Unless otherwise noted on front of this order, BMP Medical shall pay all completed and correct invoices within forty-five (45) days after the date of receipt of the invoice or after the date of acceptance of the applicable products, whichever is later. Cash discounts shall be computed from the latest of (a) the scheduled delivery date, (b) the date of actual delivery or (c) the date a complete and correct invoice is received.
In addition to all warranties under the law, Seller warrants all products will conform to BMP Medical and shall in all respects be free from defects in material, workmanship, and design. Seller further warrants that all services will be furnished in a professional manner and conform to BMP Medical’s written requirements. These warranties shall survive inspection, acceptance and payment.
In the event any or all of the products ordered hereunder fail to conform to these warranties, BMP Medical may, at its’ option, and in addition to other remedies at law or equity require Seller to repair or replace nonconforming products, or refund any amounts paid for such products and cancel this order in whole or in part. In the event BMP Medical elects repair or replacement, the cost of inspection, transportation, repackaging, reworking, and re-inspection by BMP Medical shall be at Seller’s expense.
Seller shall defend, indemnify and hold BMP Medical, its’ officers, employees, and customers (collectively “Indemnified Parties”) harmless from and against all liability, loss and expenses of any kind, including attorneys’ fees, arising out of any claim of infringement of any patent, copyright, trademark, mask words, or any other intellectual property right of any third party in connection with the products.
If an injunction is issued as a result of any claim of such infringement, and as a result BMP Medical or its’ customers are unable to use the products, in addition to the aforesaid indemnity Seller shall, at BMP Medical’s option (a) refund to BMP Medical any amounts paid by BMP Medical with respect to the enjoined products, or (b) furnish to BMP Medical non-infringing substitute products of like kind, quality, form, fit and function.
Seller shall also indemnify and hold the indemnified parties harmless from and against all liability, loss and expenses of any kind resulting from any claim asserted against such indemnified parties at law or equity by any person on account of damage to property or injuries to or death of any person which arises out of or in connection with any breach of Seller’s warranties or a willful or negligent act of any Seller.
All specifications, drawings, tools, materials, and other items furnished by BMP Medical for Seller’s use hereunder, and any items furnished by Seller as a deliverable hereunder and returned to Seller for rework or repair, shall be and remain the property of BMP Medical. BMP Medical shall have the right to enter upon the Premises of Seller at any time and remove any of the foregoing without being guilty of trespass or liable to Seller for damages of any sort.
All of BMP Medical’s property furnished in connection with this order shall be appropriately and prominently marked as BMP Medical’s property. Seller shall maintain all BMP Medical’s property and return the same to BMP Medical in good condition, normal wear and tear expected. Unless authorized by BMP Medical in writing, Seller shall only use BMP Medical’s property for furnishing Products to BMP Medical.
All rights, title and interest, to any creative work first developed in the performance of this order shall be the property of BMP Medical, and all copyright interest therein shall be considered “work made for hire” and shall be owned exclusively by BMP Medical upon creation. If by operation of law and creative work developed hereunder, including the copyright therein, is not owned in its entirety by BMP Medical automatically upon creation thereof, then Seller agrees to assign, and hereby assigns BMP Medical the ownership of such creative work, including the copyright therein.
All ideas, concepts, know-how, methods, techniques, processes, skills and adaptations first conceived or developed by Seller in the performance of this order (“intellectual Property”) shall be owned by BMP Medical, and Seller shall take all such action as is reasonable assistance in connection with the preparation and prosecution of such patent applications, and shall cause to be executed all assignments and other instruments and documents which BMP Medical may consider necessary or appropriate in support of such applications.
Seller acknowledges that during the course of performing any work to BMP Medical, its vendors or its customers (“Information”). Seller agrees not to disclose such Information to any third party or otherwise to use such Information, directly or indirectly, without the prior written consent of BMP Medical. Seller shall not disclose to BMP Medical any confidential or proprietary information of any third party without the prior written consent of such third party. Seller shall protect all BMP Medical documentation furnished to Seller in the course of performing this order to the same extent as it protects its own valuable confidential information, but not less than a reasonable standard of care.
Seller shall at all times comply with all federal, state and local laws, regulations, rules and standards applicable to the performance of this order, including, without limitation, any laws and regulations related to health, safety, environmental protection and discrimination in employment, such as, but not limited to, the Occupational Safety and Health Act, the Fair Labor Standards Act, the Toxic Substance Control Act, Workman’s Compensation laws, state Right to Know laws and regulations, and all statutes. Executive Orders and related regulations, dealing with equal opportunity, affirmative action, minority or women-owned businesses, handicapped workers, and Vietnam-era veterans, if applicable according to their terms.
Seller shall maintain adequate insurance with respect to its operations, including without limitation: (a)Worker’s Compensation and related insurance as prescribed by law in the state in which the work will be performed; (b)Employer’s Liability Insurance with limits of at least $100,000 for each occurrence; and (c)Comprehensive general public liability insurance, and comprehensive motor vehicle liability insurance if use of a motor vehicle is required hereunder, covering claims for personal injury (including death) and property damage arising out of or in connection with the performance of Seller’s services hereunder, with limits of at least $1,000,000 per occurrence. Seller shall name BMP Medical as an additional insured if requested by BMP Medical, Seller shall furnish evidence of such insurance upon request.
Seller is an independent contractor and not an employee or agent of BMP Medical and shall have no authority to commit or create any liability on the part of BMP Medical in any manner whatsoever. The remedies set forth in these terms and conditions shall not be exclusive and shall be in addition to any remedies available at law or equity.
This order shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts without regard for its conflict of laws, rules and excluding the application of the United Nations Convention or Contracts for International Sale of Goods. In the event that any provision of this Agreement shall be adjudged illegal or otherwise unenforceable, such provisions shall be severed and the balance of this Agreement shall continue in full force and effect. Seller shall not assign this order and/ or any work hereunder without the prior written consent of BMP Medical.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. No failure on the part of either party hereto to exercise, or no delay in exercising, any right or remedy available to it shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other right or remedy. No waiver shall be effective unless it is made in writing, executed by the party to be charged.
Any deposits made by BMP Medical in connection with this order shall be segregated from other funds of the Seller and held in trust until the Products have been delivered and accepted by BMP Medical.
