This Purchase Order is an offer by Atara Biotherapeutics, Inc. or an affiliated entity of Atara (“Buyer”) to the seller listed on the accompanying Purchase Order (“Seller”), and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for goods or services delivered without issuance of its standard Purchase Order.
(a) BY SHIPPING THE GOODS OR BY ACKNOWLEDGING RECEIPT OF THE PURCHASE ORDER, SELLER HEREBY AGREES TO THESE TERMS AND CONDITIONS, unless BUYER and SELLER have an existing Agreement in place SIGNED BY BOTH PARTIES, in which case that Agreement will constitute the entire agreement between the parties and any conflicting terms and conditions are null and void. THESE TERMS AND CONDITIONS EXPRESSLY EXCLUDE ANY OF SELLER’S TERMS AND CONDITIONS OF SALE OR ANY OTHER DOCUMENT ISSUED BY SELLER IN CONNECTION WITH THE PURCHASE ORDER, AND BUYER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS IN SELLER’S ACCEPTANCE OF THE PURCHASE ORDER. ANY OTHER STATEMENT, NOTICE OR AGREEMENT, OTHER THAN AN EXISTING FULLY EXECUTED AGREEMENT, TO THE CONTRARY NOTWITHSTANDING, ANY WRITTEN ACKNOWLEDGEMENT OF THE PURCHASE ORDER OR THE FURNISHING OF ANY GOODS PURSUANT TO THE PURCHASE ORDER SHALL CONSTITUTE ACCEPTANCE BY SELLER OF EACH AND ALL OF THE EXPRESSED TERMS AND CONDITIONS STATED HEREIN AND ON THE FACE HEREOF. THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE CONTRACT BETWEEN BUYER AND SELLER WITH RESPECT TO BUYER’S PURCHASE OF THE GOODS. IF ANY OR ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN ARE NOT ACCEPTABLE, SELLER SHALL ADVISE BUYER IN WRITING UPON RECEIPT OF THE PURCHASE ORDER AND SHALL WITHHOLD GOODS UNTIL A SEPARATE AGREEMENT OR ADDENDUM TO THE PURCHASE ORDER IS ENTERED INTO BY SELLER AND BUYER. NO WAIVER, CONSENT, MODIFICATION, AMENDMENT OR CHANGE OF THE TERMS CONTAINED HEREIN SHALL BE BINDING UNLESS IN WRITING AND SIGNED BY BUYER AND SELLER.
(b) This Purchase Order may be accepted by delivering the goods or services by the specified delivery date. This Purchase Order is limited to the terms and conditions: (i) specified herein; (ii) specified on the face of the accompanying Purchase Order; and (iii) if applicable, specified in Buyer’s written agreement with Seller.
(c) Acceptance of all or part of the goods or services shall not (i) waive Buyer’s right to cancel or return all or any portion of the goods or services that do not conform to the Purchase Order; (ii) bind Buyer to accept future shipments of goods or services; or (iii) preclude Buyer from making any claim for damages or breach of warranty. All purchases are subject to inspection and rejection by Buyer notwithstanding prior payment. Rejected goods will be returned at Seller’s expense for transportation both ways and all related labor and packing costs. No goods returned as defective by Buyer shall be replaced by Seller without written permission of an authorized agent of Buyer.
- Compliance with Laws.
Seller warrants to Buyer that the goods and services shall be provided, manufactured, shipped, stored, and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders, and industry standards. Seller makes all warranties contained in the Uniform Commercial Code.
Title conveyed to Buyer by Seller shall be good and merchantable and its transfer rightful. The goods and services shall be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever.
- Hold Harmless.
Seller agrees to defend, indemnify and hold harmless Buyer, officers, directors, shareholders, affiliated entity, employees, agents, representatives, successors and assigns (“Indemnitees”) from all losses, liabilities, damages, and/or expenses which may be sustained or claimed against an Indemnitee: (i) arising out of defective goods or negligent services hereby ordered; (ii) arising from injury to Seller employees while in the course of providing goods or services to Buyer or affiliated entity; (iii)arising from Seller’s use of automobiles, trucks, or heavy equipment; or (iv) based on a claim that the goods or services supplied by Seller infringe a patent, copyright, or trademark or misappropriate a trade secret of a third party. Seller shall, at the request of Buyer or affiliated entity, defend any such claim, action or lawsuit. If the goods or services become, or in Seller’s opinion, are likely to become the subject of any infringement claim, Seller shall do one of the following at Seller’s option and expense: (i) procure for Buyer the right to continue using the goods or services; (ii) replace or modify the goods or services so that they become noninfringing without losing functionality; or (iii) terminate Buyer’s right to use the goods and/or services, whereupon Seller will refund to Buyer all amounts paid for such goods or services. The indemnity under this Paragraph 5 shall survive delivery and acceptance of goods and services and termination or expiration of this Purchase Order and/or Buyer’s written Agreement with Seller, if applicable.
(b) Cash discounts, if any, shall be computed as commencing with receipt of the invoice or materials, whichever is later. Time, in connection with any discount offered, will be computed from (i) the scheduled delivery date, (ii) the date of actual delivery, or (iii) the date an undisputed invoice is received, whichever is later. Payment is deemed to be made for the purpose of earning the discount on the date of mailing of Buyer’s check or initiation of an ACH credit transaction or a wire transfer.
(c) Unless otherwise specified, the prices set forth in a Purchase Order do not include all applicable federal, state, and local taxes. All such taxes shall be stated separately on Sellers invoice.
- Delivery; Shipment; Risk of Loss.
(a) Unless otherwise specified, when the price of the Purchase Order is based on the weight of the goods, such price is to cover net weight of goods ordered only and no charges will be allowed for boxing, crating, handling damage, carting, drayage, storage, or other packing requirements. Unless otherwise specified, all goods shall be packed, packaged, marked, and otherwise prepared for shipment in a manner that is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the goods and in accordance with all applicable laws, including without limitation, the Interstate Commerce Commission (I.C.C.) regulations applicable for the mode of transportation, and (iii) adequate to insure safe arrival of the goods at the named destination. Seller shall mark all containers with necessary lifting, handling, and shipping information and purchase order numbers, date of shipment, and the names of the consignee and consignor, if any. An itemized packing sheet must accompany each shipment. No partial or complete delivery shall be made hereunder prior to the date or dates set forth in the Purchase Order without Buyer’s prior written consent.
(b) Unless otherwise specifically provided on the face of the Purchase Order, the goods called for hereunder shall be delivered on F.O.B. origin basis.
(c) Notwithstanding any prior inspections, and irrespective of the F.O.B. point named herein, Seller shall bear all risks of loss, damage, of destruction to the goods until final acceptance by Buyer at destination. Further, Seller shall also bear the same risks with respect to any goods rejected by Buyer; provided, however, that in either case, Buyer shall be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their employment.
(d) Shipments of goods in excess of the quantities in the Purchase Order will be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense. Undershipments may, at the sole discretion of Buyer, be deemed a breach of the Purchase Order and these Terms and Conditions and Buyer may pursue any and all remedies available to Buyer in law and equity, including without limitation, termination or cancellation of the Order.
(e)The goods or services ordered must be received no later than the delivery date specified.
Seller shall issue a separate invoice for each separate shipment. Each invoice shall include:
(i) the Purchase Order number; (ii) Buyer’s part numbers; and (iii) quantities shipped. Undisputed amounts shall be paid within 30 days of receipt and acceptance of goods or services and a correct invoice. Delays in receipt of goods or services, acceptance of goods or services, or a correct invoice will be just cause for Buyer to withhold payment without losing discount privileges. Cash discounts, if any, shall be computed as commencing with receipt of the invoice or goods or services, whichever is later.
Seller warrants that the goods or services delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of goods, and any other performance pursuant to this Purchase Order, will: (i) be free of infringement of property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; (iii) be of merchantable quality; (iv) be fit for the intended use of the Buyer, Buyer’s customers and any other intended uses of such goods and shall be new and not refurbished; and (v) be of grade and performance in conformity with all specifications, blueprints, designs, drawings, samples, models, descriptions, instructions, and other items referred to in this Purchase Order. Seller also warrants that the goods or services to be delivered hereunder were produced incompliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended, including specifically Sections 206, 207, 212 and 215, and all regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. Seller shall maintain, solely at Seller’s cost and expense, all licenses, permits, approvals, and the like necessary to conduct its business and perform its obligations under this Purchase Order.
- Limitation of Liability.
Buyer’s liability to pay any amount to Seller for any reason shall not exceed the amount Buyer has agreed to pay Seller for the goods or services. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF GOODS AND/OR SERVICES REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF BUYER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
Seller shall not assign this Purchase Order or any rights, nor delegate any duties to any third party. Any attempt to do so will be void. This Purchase Order shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Each party is an independent contractor of the other party.
- Confidential Information.
Seller agrees to hold in confidence all of Buyer’s Confidential Information that is disclosed to Seller in connection with the Purchase Order. “Confidential Information” means any and all information, know-how and trade secrets owned by or otherwise in Buyer’s possession, including without limitation methods, processes, techniques, shop practices, formulae, compounds, compositions, organisms, equipment, designs, drawings, blueprints, specifications, research data, marketing and sales information, customer lists, plans and any other information that a reasonable person may deem as confidential or proprietary. Until such Confidential Information has been published or disclosed to the general public, Seller agrees not to (i) use such Confidential Information for itself or others or (ii) disclose such Confidential Information to others without Buyer’s prior written consent. All Confidential Information shall remain Buyer’s property and shall be returned to it upon request. Buyer’s confidential and proprietary information includes, without limitation, its business plans; business strategies; marketing plans; industry and competitive information; technology, product and proposed product information; pricing and cost arrangements and agreements with Buyer, distributors, customers, suppliers, licensers and licensees; information relating to its customer base; information concerning employees and financial information. All such confidential and proprietary information shall (a) remain the property of Buyer, (b) be carefully preserved and maintained by Seller at its expense, and (c) be promptly returned to Buyer or satisfactorily accounted for upon completion of this Purchase Order or upon Buyer’s written demand.
- Force Majeure.
Failure of Buyer to take shipments of goods or receive services hereunder or of Seller to make shipments or provide services, if occasioned by fire, explosion, flood, war, accident, interruption of or delay in transportation, labor trouble, governmental regulation, or any other circumstances of like or different character beyond that party’s reasonable control, or if occasioned by partial or complete suspension of operations at any of that party’s offices or other business locations, shall not subject that party to any liability by reason thereof, but, at Buyer’s option, the total quantity covered by this Purchase Order may be reduced by the extent of omitted shipments or services, or the specified delivery period may be extended by a time equal to that during which shipments or services shall be so omitted and such shipments shall then be made or services performed during the period of extension.
- Affirmative Action.
Seller shall comply with applicable federal regulations on affirmative action implementing Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. Buyer and Seller hereby incorporate the requirements of 41 C.F.R. §§60-1.4(a)(7), 60-250.5(a) and 60-741.5(a), if applicable.
- Federal Acquisition Regulation Clauses Incorporated by Reference.
The following clauses from the Federal Acquisition Regulation (“FAR”), 48 C.F.R. Chapter 1, as applicable and as in effect on the date of this order, are incorporated by reference into this order. The full text of the below clauses is available at http://www.acquisition.gov/far. Unless the context requires otherwise, in the text of the below clauses the term “Contractor” means “Seller” and the terms “Contracting Officer” and “Government” mean “Buyer”: (a) Contractor Code of Business Ethics and Conduct (FAR 52.203-13); (b) Utilization of Small Business Concerns (FAR 52.219-8); (c)Equal Opportunity (FAR 52.222-26); (d) Equal Opportunity for Veterans (FAR 52.222-35); (e) Affirmative Action for Workers with Disabilities (FAR 52.222-36); (f) Notification of Employee Rights Under the National Labor Relations Act (FAR 52.222-40) (applies only if value of order exceeds $10,000 and will be performed wholly or partially in the United States); and (g) Combating Trafficking in Persons (FAR 52.222-50).
A waiver of any term, condition, or default of this Purchase Order shall not be construed as a waiver of any other term, condition, or default.
- Entire Agreement.
The Purchase Order represents the entire understanding between Buyer and Seller, shall supersede all prior understandings and agreements relating to the subject matter hereof, and may be amended only by written mutual agreement of the parties. In the event of a conflict between the terms and conditions of this Purchase Order and any amendment thereto, the Purchase Order shall govern and control. Notwithstanding the foregoing, the provisions of this Purchase Order will not supersede any provisions of any other previously written agreement(s) that are currently in effect between the parties that govern the provision of the goods or services that are the subject of this Purchase Order.
- Governing Law.
This Purchase Order shall be governed by and interpreted in accordance with the laws of the State of California, excluding conflict of law rules. The application of the United Nations Convention on Contracts for the International Sales of Goods (1980) is excluded. All terms used in this Purchase Order, which are defined in the Uniform Commercial Code as adopted in the State of California, shall have the same meaning herein as such code.