Purchase Order Terms and Conditions
- ORDER AND ACCEPTANCE. UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS PURCHASE ORDER TERMS AND CONDITIONS, TOGETHER WITH THE PURCHASER ORDER TO WHICH THIS IS ATTACHED (collectively, “Order”) CONSTITUTES THE ENTIRE CONTRACT BETWEEN THE SELLER NAMED ON THE PURCHASE ORDER (“Seller”) AND REVANCE THERAPEUTICS, INC. (“Revance”) COVERING THE GOODS AND RELATED SERVICES (collectively, the “GOODS”) DESCRIBED IN SUCH ORDER. ANY PROVISIONS IN ANY ACKNOWLEDGMENT FORM OR OTHER DOCUMENT PREPARED BY SELLER THAT VARY FROM OR ARE IN ADDITION TO THE PROVISIONS OF THIS ORDER SHALL NOT BIND REVANCE UNLESS REVANCE EXPRESSLY ASSENTS THERETO IN WRITING. SELLER’S ACCEPTANCE OF THE PROVISIONS OF THIS ORDER WILL BE PRESUMED UNLESS SELLER REQUESTS EXCEPTIONS IN WRITING WITHIN FIVE (5) DAYS AFTER THE DATE OF THIS ORDER, PROVIDED, HOWEVER, THAT REVANCE SHALL NOT BE BOUND BY ANY SUCH EXCEPTIONS UNLESS REVANCE AGREES IN WRITING TO THEM. ANY SHIPMENT OR PARTIAL SHIPMENT OF THE GOODS BY SELLER SHALL BE DEEMED TO BE AN ACCEPTANCE OF THE PROVISIONS OF THIS ORDER. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS OF THIS ORDER AND ANY PURPORTED ACCEPTANCE BY SELLER, THE TERMS OF THIS ORDER SHALL PREVAIL. REVANCE IS NOT BOUND BY THIS ORDER UNTIL RECEIPT BY REVANCE OF (i) SELLER’S ACCEPTANCE COPY OF THIS ORDER SIGNED BY SELLER, OR (ii) SHIPMENT OF THE GOODS.
- PRICE. Seller warrants that the price charged for the Goods ordered herein are not less favorable than those currently extended by Seller to its other customers buying the same or similar goods in equal or smaller quantities under similar circumstances. Before delivery of the Goods, if Seller reduces the prices for like goods to one or more of its customers for similar quantities of goods of like quality, then the prices specified in this Order shall be likewise reduced and Seller shall promptly grant Revance a corresponding price reduction or account credit for the amount of the price reduction for each unit of affected Goods contained in this Order. In the event that Seller should increase the price charged for the Goods ordered herein prior to the delivery thereof, Seller will honor this Order at the prices quoted on the face of this Order or as provided in this Section 2, as applicable.
- TAXES. Except to the extent that Revance has provided Seller with a valid California sales tax exemption resale certificate, or unless Revance is otherwise exempt, Revance shall pay any applicable sales or use taxes levied on the Goods. All such sales and use taxes shall be stated separately on Seller’s invoice. Seller shall pay all other taxes on or related to the Goods and on the shipment thereof.
- WARRANTIES. By accepting this Order Seller warrants that the Goods to be furnished hereunder will be: (i) in full compliance with Revance’s specifications, quality standards, drawings and data, if and as disclosed to Seller, and Seller’s samples, if any; (ii) fit for the use intended by Revance, if and as disclosed to Seller, (iii) free from any actual or claimed infringement of any third party’s patent, copyright, trademark, trade secret or other intellectual property rights; and (iv) free from defects in design, materials and workmanship and, in the case of related services, performed in a workmanlike manner and in accordance with the highest standards of professional knowledge and judgment; (v) free and clear of all liens, claims and encumbrances by the delivery date; and (vi) comply with all other requirements of this Order and with all federal, state, and local laws, regulations, permitting licensing, and other guidelines (collectively called the “Warranties”). Seller agrees that the Warranties herein contained shall be in addition to any warranties implied in law or expressly made by Seller other than hereunder; and shall survive acceptance and payment by Revance. Seller further represents, warrants and covenants that it (a) shall not subcontract any portion of the related services within the Goods without the prior written consent of Revance, and (b) is currently under no obligation to any third party, and it will not enter into any obligation to a third party, that could interfere with the performance of its obligations under this Order.
- PAYMENT; SETOFF. Unless otherwise specified in this Order, payment shall be net thirty (30) days after the last to occur of: (a) receipt of the confirming Goods by Revance at the point of delivery specified in or pursuant to Section 8 hereof, or (b) receipt by COMPANY NAME of Seller’s proper invoice for delivered conforming Goods. If Goods are delivered which do not confirm to the Warranties, Revance may delay payment until such non-conformity is corrected. If there are any packing, storage, transportation or delivery charges payable by Revance, such charges shall be separately stated on the face of this Order and on Seller’s invoice and such charges shall not be subject to sales or use taxes. Seller must pay all such charges unless this Order specifies otherwise. Revance may withhold payment of any amounts that are disputed in good faith by Revance, and all payments due or to become due from Revance to Seller hereunder shall be subject to deduction by Revance for any setoff or claim to which Revance is entitled against Seller. Payment due dates, including any discount periods, will be computed from date of invoice to the date Revance’s check is mailed (or payment is otherwise transmitted by Revance). Any discount taken by Revance will be taken on the full amount of the invoice.
- PACKING, MARKING AND SHIPPING. Seller shall be responsible for and shall pack, mark, and ship all Goods in accordance with the requirements of this Order and good commercial practice in a manner that will permit the securing of the best transportation rates and is sufficient to prevent damage and loss to the Goods during shipment. Any expense incurred by Revance as a result of improper preservation, packing, packaging, marking or method of shipment shall be reimbursed by Seller to Revance. Seller shall promptly notify Revance in the event seller anticipates that it cannot deliver the Goods by the applicable delivery date, and Revance may at its election either (a) cancel the Order at no cost to Revance, or (ii) seek expedited delivery of the Goods, in which case seller agrees to deliver the delayed shipment so as to avoid or minimize delay to the maximum extent possible at no additional charge to Revance.
- ADVANCE SHIPMENTS. Seller shall not, without Revance’s prior written consent, deliver Goods in advance of scheduled delivery. Unauthorized advance shipments are returnable at Seller’s expense. Goods shipped in excess of quantities authorized under this Order may be accepted or rejected at Revance’s option. Unauthorized over shipments are returnable at Seller’s expense.
- TRANSPORTATION. Unless otherwise specifically provided on the face of this Order, or otherwise agreed to in writing by Revance and Seller, deliveries must be made in the quantities and according to the time deadlines specified in this Order. Unless Revance provides otherwise in writing, the terms, choice of carrier and routing of shipment shall be F.O.B. destination basis to the delivery address designated by Revance. Upon reasonable prior notice, Revance may revise shipping instructions as to any unshipped Goods. At the option of Revance, Revance may specify the common carrier for Seller to use for delivery. The transportation costs for delivery, and the insurance of the Goods while in transit, shall be borne by Seller, unless otherwise expressly stated on the face of this order.
- RISK OF LOSS; TITLE. Seller shall bear all risk of loss for the Goods while in transit and until received and accepted by Revance at the proper delivery address designated by Revance in the Order. If freight regulations covering Goods transported by common carrier F.O.B. destination establish a maximum limit on the carrier’s liability for loss or damage suffered in transit, Seller will be liable to Revance for any loss or damage in excess of such maximum limit up to the full price of the Goods. Additionally, Seller shall bear all risk of loss as to properly rejected Goods. Title to the Goods shall pass from Seller to Revance upon Revance’s acceptance of the delivered Goods.
- INSPECTION. All Goods are subject to a final inspection and acceptance at the specified destination, notwithstanding any payments or any inspection at the source. Such final inspection and acceptance shall not be applicable in the event of any latent defects or fraud, and shall not affect Seller’s warranty obligations. Revance may reject and hold at Seller’s expense, subject to Seller’s disposal, all Goods not conforming to the Warranties.
In the event any Goods are not in full compliance with the Warranties, Revance, may, at its option and without limitation on any and all other remedies available to it, require Seller to promptly (and in any event within fifteen (15) days): (1) repair or replace at Seller’s expense any Goods that fail to comply with the Warranties, or (2) refund the price of any such non-confirming Goods.
- INDEMNITY. Seller agrees to defend, indemnify and hold harmless Revance, its affiliates, customers (both direct and indirect), and all persons claiming under Revance against all claims, demands, liability, loss, cost and expense, including reasonable attorneys’ fees, resulting from or relating to (a) actual or alleged infringement of any patent, copyright, trademark, trade secret or similar right by the Goods called for by this Order, unless the infringement is due solely to Seller having followed specific design requirements furnished by Revance, or (b) property damages, personal injury, death, expenses (including reasonable attorney’s fees), economic loss, foregone profits, losses or damages of any kind whatsoever resulting from Seller’s performance under this Order or the failure of the Goods to conform to the Warranties.
- CHANGES. Revance may, only through the authorized representative of its purchasing staff, and by written change order, make changes within the scope of this Order, including but not limited to changes in: (i) the drawings, designs and specifications applicable to the Goods called for herein; (ii) method of shipping or packing; or (iii) the place of delivery. If any such change affects the time for, or the cost of performance by Seller, an equitable adjustment shall be made, by mutual agreement in writing, in the delivery schedule or the purchase price or both, provided Seller submits its written request for adjustment within fifteen (15) days after receipt of a written change order.
(a) Revance may, at any time, terminate this Order in whole or in part by written or telegraphic notice or verbal notice confirmed in writing.
(b) If a termination by Revance is not for a reason specified in Section 13(c), and such termination is after Seller has accepted this Order as specified in Section 1, then Revance will pay a cancellation fee equal to the lesser of (i) 10% of the price for the cancelled Goods which otherwise would have been delivered within thirty (30) days following the date of termination, or (ii) the actual costs incurred by Seller to produce or procure said cancelled Goods, but only to the extent that such costs result in materials, goods or other benefits which cannot be reasonably utilized by Seller at fair value.
(c) If termination is occasioned by (i) Seller’s breach of any of the warranties; (ii) Seller’s failure to make delivery of the Goods or to perform the related services within the time specified in this Order; (iii) Seller’s failure to perform any of the provisions of this Order; (iv) Seller’s failure to make sufficient progress so as to endanger performance under this Order in accordance with its terms, then in addition to any other rights or remedies available to Revance, Revance may require the Seller to deliver to Revance any completed Goods. Payment for completed Goods delivered to, and accepted by, Revance shall be at the contract price specified for this Order.
(d) IN NO EVENT SHALL REVANCE BE LIABLE FOR ANY DAMAGES BEYOND THE COSTS SPECIFIED IN SECTION 13(b), INCLUDING WITHOUT LIMITATION INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES, AND/OR TERMINATION CHARGES PAID BY SELLER TO ITS SUPPLIERS ARISING FROM REVANCE EXERCISING ITS RIGHTS AS GRANTED UNDER THIS SECTION.
- CONFIDENTIAL INFORMATION. Without Revance’s prior written consent, Seller shall not disclose to any third person (except to Seller’s employees and agents, solely as necessary for the manufacture or production of the Goods called for in this Order, but subject to such employee and agent’s written obligation to maintain such information in confidence) and shall not use (except as expressly permitted herein and solely for purposes of the Order) any information which Seller has acquired under or as a result of this Order or negotiations leading to it, concerning Revance’s plans, drawings, specifications, business, objectives, customers, personnel, products, processes, work or services. All such information shall be considered proprietary to Revance. Seller shall not, without the prior written consent of Revance, advertise or publish the fact that Revance has placed this Order. If the Goods or parts thereof are designed by Revance, the Seller shall not reproduce any of such Goods or parts without Revance’s prior written consent and shall not, without such written consent, (a) supply or disclose any information regarding such Goods or parts, or (b) incorporate in other products or articles any special features of design or manufacture peculiar to the Goods contracted for under this Order.
- PROPERTY SUPPLIED TO SELLER BY REVANCE. Unless otherwise agreed to in writing, all drawings, plans, specifications, templates, software and any other property furnished to the Seller by Revance, or specifically paid for by Revance for use in the performance of this Order: (i) shall be and remain the property of Revance and subject to confidentiality obligations under Section 14; (ii) shall be subject to removal from Seller on Revance’s instruction; (iii) shall be returnable to Revance in as good condition as when received by the Seller (except for reasonable wear and tear or for the utilization of the property in accordance with the provisions of this Order); (iv) shall be used only in filling Orders from Revance; (v) shall be held at Seller’s risk, and (vi) shall be kept insured by the Seller at Seller’s expense while in its custody or control, in an amount equal to the replacement cost thereof with loss payable to Revance.
- LIABILITY INSURANCE; DISCLAIMER. Seller represents that it carries adequate public liability and property damage insurance with responsible insurers to cover any work performed by Seller for this Order, including without limitation, any installation work performed on the premises of Revance or Revance’s customers. The purchase of such insurance by Seller shall not satisfy, modify or limit Seller’s obligations or liability hereunder. On request of Revance, Seller will furnish certificates of insurance to verify this representation. Revance shall not be liable for any damage to Seller’s property or personal injury to Seller’s representatives unless caused by the gross negligence or willful misconduct of Revance.
- EXCUSABLE FAILURES TO PERFORM. Neither Revance nor Seller shall be liable hereunder for delays due to fire, drought, earthquake, other natural disaster, or other casualty or accident; strikes or labor disputes; inability to procure raw materials, power, or supplies; any law, regulation, ordinance, or requirement of any government agency or any judicial decision; war or other foreign or domestic violence; or any other act or condition, of the types listed above or any other type beyond its reasonable control. However, in event of such delay by Seller, (a) Seller shall use reasonable efforts to overcome such delay and (b) Revance, at its option, may (i) extend the delivery period by a time equal to the period of such delay or (ii) terminate this Order, in whole or in part, with respect to the delayed portion, without liability to Seller.
- ESSENCE OF TIME. Where shipping and/or delivery schedules are made a part of this Order, time is of the essence, and failure to comply shall place Seller in default.
- ASSIGNMENT. Neither this Order nor any interest therein, except the right to receive payment from Revance, may be assigned by Seller without the prior written consent of Revance. No assignment of the right to receive payment shall affect Revance’s right of setoff against Seller nor shall such assignment be binding on Revance unless and until Revance receives an executed copy of the assignment and each invoice to be paid to the assignee is clearly marked to show such assignment. Revance may assign this Order, in whole or in part, without the prior consent of Seller, including to any of Revance’s affiliate or to any third party upon a change of control, merger, sale of assets or other business combination of Revance. This Order shall inure to the benefit of and shall be binding upon Seller and Revance and their respective successors and permitted assigns. Any purported assignment in violation of this Section 19 shall be null and void.
- WAIVER AND MODIFICATION. Revance’s failure to enforce at any time any of the provisions of this Order, to exercise any election or option provided herein, or to require at any time performance by Seller of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this Order or any part thereof, or the right of Revance thereafter to enforce each and every such provision. To be binding on Revance, any modification of this Order must be in writing and signed by Revance’s authorized representative.
- COMPLIANCE WITH STATUTES AND REGULATIONS.
(a) Seller warrants that no law, rule, regulation, or ordinance of the United States, any state, or any other governmental agency including but not limited to OSHA, the Fair Labor Standards Act and Executive order 11246, as amended, will be violated in the manufacture or sales of Goods (including in the performance of related services covered in this Order), and Seller will indemnify, defend and hold Revance harmless from any and all loss, cost, and damages as a result of any such actual or alleged violation.
(b) Seller shall procure, maintain and pay for adequate Workers’ Compensation coverage, including employer’s liability covering its employees.
(c) Seller shall provide Revance with all appropriate documentation (including material safety data sheets) with respect to any hazardous materials which might be shipped pursuant to this Order; and Seller shall comply with all applicable laws affecting any such shipment. Seller shall be solely responsible for all chemical substances or mixtures that it, its employees, permitted subcontractors, agents or suppliers of any tier use to produce the Goods whether or not on the premises of Revance, including the proper use, removal and disposal of all such substances and mixtures, and associated containers and residue from their use, in accordance with all applicable law, regulations and court orders.
- LABOR DISPUTES. Whenever any actual or potential labor dispute delays or threatens to delay the timely performance of this Order, Seller shall immediately give notice thereof to Revance.
- GOVERNING LAW. This Order is deemed made in the State of California and shall in all respects be interpreted, enforced and governed by and under the California Commercial Code and other laws of the State of California applicable to instruments, persons and transactions that have legal contacts and relationships solely with the State of California and the laws of the United States of America, and shall be without regard to principles of conflict of laws. The parties exclude in its entirety the application to this Order of the United Nations Convention on Contracts for the international Sale of Goods.
- ENTIRETY. Seller’s warranties and representations, regarding the quality of the Goods are incorporated herein. This Order, together with Seller’s warranties and representation regarding the quality of the Goods, and any written specifications attached or referred to herein constitute the entire agreement between the parties hereto and supersede all prior or contemporaneous oral or written understandings, agreements, and representations relating to the subject matter of this Order. Without limiting the provisions of Section 12, Revance will not be bound to any additional or different terms or conditions hereafter transmitted by Seller, unless in writing signed by Revance’s authorized representative, and Revance will not be bound by its silence, course of dealing, usage of the trade or its acceptance of the Goods.
- INVALIDITY. If any of the terms or provisions provided herein is declared invalid or unenforceable by any court or other body, the remaining terms and provisions hereof shall be deemed valid and enforceable to the maximum extent possible.
- MISCELLANEOUS. Headings used herein are for convenience only and shall not be used for interpretive purposes. Nothing contained herein shall give to any other person any benefit or any legal or equitable right, remedy or claim. Seller, its employees, permitted subcontractors and agents shall at all times be independent contractors with respect to this Order, and shall not be deemed employees or agents of Revance. None of them shall have the right or power to bind Revance.