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ARIAD PHARMACEUTICALS, INC. – PURCHASE ORDER TERMS AND CONDITIONS
Delivery.
Time is of the essence in this contract. Unless otherwise
specified, the goods are sold F.O.B. ARIAD’s location. Consequently, Seller
agrees to deliver the goods on or before the date specified on the front of
this purchase order. ARIAD will accept deliveries only between the hours of
8:30 A.M. EST and 5:00 P.M. EST, Monday through Friday, excluding
holidays. If deliveries are not made at the time agreed upon, ARIAD
reserves the right to cancel the contract or to purchase elsewhere and hold
the Seller accountable for the substitute purchase.
applicable, any goods manufactured as a special order or on a custom basis
will conform to applicable specifications, drawings, samples, or other
description adopted by ARIAD; (v) the goods will be fit for any special or
particular purpose of which ARIAD notifies Seller at the time of contracting
or of which Seller has reason to know; and (vi) the goods will conform to
any (a) affirmation of fact that the Seller made to ARIAD relating to the
goods, (b) description of the goods made by Seller to ARIAD; and (c) sample
or model ARIAD provided to Seller.
The goods called for by this contract will be delivered in a single lot unless
specifically stated otherwise on this purchase order. Additionally, Seller
will enclose an itemized packing slip with all deliveries. If no itemized
packing slip is enclosed, ARIAD’s determination of count or weight will be
conclusive. When delivery in installments is expressly permitted, each
installment will be considered dependent on every other installment.
Accordingly, a delivery of non-conforming goods or a default of any nature
with respect to any installment, including defaults as to time of delivery,
quantity, quality or the like, will impair the value of the whole contract,
constitute a breach of this contract, and entitle ARIAD to terminate this
contract immediately without penalty or to reject the non-conforming
installment.
The warranties described above, together with Seller's service warranties
and guarantees, if any, will survive inspection, test, or acceptance of any
payment for the goods and run to ARIAD, its successors, assigns and
customers. ARIAD expressly conditions acceptance of this purchase order
on seller assuming these warranties. Absent ARIAD’s express written
consent, no disclaimer of the above warranties contained in any form, or
acknowledgement of the seller, will be effective.
Inspection Rights. ARIAD may inspect the goods, including the right to
verify the quantity of goods actually shipped, at the time and place of
delivery before tendering payment or accepting the goods. The goods must
be inspected within 30 days after ARIAD’s receipt of the goods. When
inspecting the goods, ARIAD has the opportunity to run adequate tests to
determine whether the goods tendered are conforming. Use of a portion
of the goods for the purpose of testing will not constitute an acceptance of
the goods. Upon inspection, and in the event that the goods or the tender
of delivery fail in any respect to conform to specifications or the terms of
this contract, ARIAD’s may (i) reject the whole, (ii) accept the whole, or (iii)
accept any commercially reasonable unit and reject the rest.
ARIAD must promptly notify Seller if it is rejecting any portion of the goods.
In addition, ARIAD will return the rejected portion of the goods to the
Seller at the Seller's sole risk and expense. Moreover, when nonconforming goods are rejected, Seller will reimburse ARIAD for the cost of
the inspection. When Seller receives ARIAD’s notification of rejection,
Seller will replace or correct defects of any non-conforming goods without
expense to ARIAD. In the event of Seller’s failure to correct defects or
replace non-conforming goods promptly, ARIAD, after reasonable notice to
Seller, may make such corrections or replace such goods at Seller’s
expense.
Termination for Convenience. ARIAD may terminate any part of this
purchase order by giving written notice to Seller before the goods are
shipped. In the event of such termination, Seller will immediately stop all
work associated with this purchase order. ARIAD will still be responsible
for goods that the Seller manufactures on a special order or custom basis
for ARIAD up to the point of completion of the goods.
The sum issued to the Supplier for the special or custom manufactured
goods will constitute liquidated damages and will be the Seller’s exclusive
remedy.
Termination for Cause. ARIAD may terminate any part of this purchase
order if the Seller fails to comply with any of the terms and conditions of
this purchase order. Late deliveries, deliveries of products that are
defective or do not conform to this order, and failure to provide ARIAD
upon request reasonable assurance of future performance are all causes
allowing ARIAD to terminate this contract. In the event of termination for
cause, ARIAD will not be liable to Seller for any amount. But, Seller will be
liable to ARIAD for any and all damages sustained by reason of the default,
which gave rise to the termination.
Warranties. Seller warrants that (i) it has legal title to the goods and any
transfer of title to ARIAD does not violate any agreement between Seller
and a third party; (ii) the goods will be delivered free from any security
interest or other lien or encumbrance; (iii) the goods will be merchantable
and fit, for the ordinary purposes for which such goods are used; (iv) where
Identifying Numbers. The order number shown on this purchase order
must appear on all invoices, packing slips, and any correspondence
pertaining to this order.
Indemnification. Seller must indemnify ARIAD from any third party claim
arising from any defect in the goods referenced in the applicable purchase
order. For purposes of indemnification, Seller agrees that the duty to
indemnify ARIAD runs to its directors, officers, employees, and staff.
Indemnification will be provided only when (i) ARIAD notifies Seller soon
enough (ideally within 15 days) to avoid any prejudice that can result from
late notice, (ii) Seller has sole control of the defense and all related
settlement negotiations, and (iii) ARIAD reasonably cooperates in the
defense of the claim.
Miscellaneous.
ARIAD will own all right, title and interest to intellectual property resulting
from any provision of services by Seller.
Seller will keep all information received from ARIAD confidential.
This contract contains the entire understanding of the parties with respect
to this purchase order and supersedes all prior written or oral
communications. This contract may only be modified when both parties
execute an amendment.
Acceptance or acquiescence in a course of performance rendered under
this contract is not relevant in determining the meaning of this contract
even though the accepting or acquiescing party has knowledge of the
nature of the performance and opportunity for objection.
No claim or right arising out of a breach of this contract can be discharged
in whole or in part by a waiver or renunciation of the claim or right unless
the waiver or renunciation is supported by consideration and is in writing
signed by the aggrieved party. Waiver by either Seller or ARIAD of a breach
by the other of any provision of this contract will not be deemed a waiver
of future compliance, and such provisions will remain in full force and
effect.
No right or interest in this contract will be assigned by either ARIAD or
Seller without the written permission of the other party, and delegation of
any obligation owed, or of the performance of any obligation, by either
ARIAD or Seller may be made without the written permission of the other
party. A change in control of the Seller prior to completion of this contract
constitutes an impermissible delegation, which will give ARIAD the option
to void this contract.
If a court finds that a provision in this contract is unenforceable, all other
terms of this contract should be unaffected and remain enforceable.
The laws of the Commonwealth of Massachusetts, without reference to its
conflicts of laws principles, will govern this contract. ARIAD and Seller have
all rights and remedies afforded by the Uniform Commercial Code as
adopted in Massachusetts. Consequently, whenever a term defined by the
Uniform Commercial Code, as adopted in Massachusetts, is used in this
contract, the definition contained in the Code is to control.