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PURCHASE ORDER TERMS AND CONDITIONS

Effective as of February 8, 2021

Azurity Pharmaceuticals, Inc. (“Azurity”) hereby retains the supplier (“Supplier”) set for in the order form into which these terms and conditions are incorporated by reference (including attachments thereto, the “Order Form”) on the terms and conditions herein after stated (including the terms and conditions that are incorporated herein by reference, the “Purchase Order Terms and Conditions,” and together with the Order Form, the “Purchase Order”) to supply the materials, supplies, items or equipment (the “Product”) and/or perform the services (the “Services”), as the case may be, described in the Order Form on its behalf of on behalf of one or more of its Affiliates. An “Affiliate” of Azurity means any entity which controls, is controlled by, or is under common control with Azurity, on a non-exclusive basis. For purposes of the preceding sentence the term “controls”, “controlled”, and “control” mean (a) directly or indirectly owning at least fifty percent (50%) of the voting stock of an entity at issue, or (b) directly or indirectly possessing the power to cause or direct the management or policies of an entity at issue. Nothing in this Purchase Order shall be interpreted to prevent Azurity from obtaining from any other third party, or providing itself, any or all such Products or Services or from ceasing to use Suppler to provide such Products or Services.

In the event of a conflict or inconsistency between any of the provisions of this Purchase Order Terms and Conditions and any of the provisions of a written agreement between Azurity and Supplier (“Agreement”) covering the subject matter of this Purchase Order, the provisions of the Agreement shall govern and supersede any such conflicting or inconsistent provisions of this Purchase Order. In the absence of an Agreement, this Purchase Order constitutes the entire agreement of the parties with regard to the subject matter, and supersedes all previous written or oral representations, agreements and understandings between Azurity and Supplier and any different or additional terms and conditions. In the event of a conflict or inconsistency between any of the provisions of the Purchase Order Terms and Conditions and any provisions of the Order Form covering the subject matter of this Purchase Order, the provisions of the Purchase Order Terms and Conditions shall govern and supersede any such conflicting or inconsistent provisions of the Order Form.

Supplier’s acceptance of this Purchase Order may be in writing, email, fax, EDI or other manifestation of acceptance such as , but not limited to, Supplier’s initiation of performance, or through Supplier’s provision of any Products or Services covered by this Purchase Order, or through Supplier’s acceptance of any payment made pursuant to this Purchase Order, whichever occurs first. Except to the extent expressly accepted in writing by Azurity, Azurity hereby affirmatively rejects any different or additional terms and conditions proposed by Supplier or contained in any acknowledgment, invoice or other form of Supplier, notwithstanding Azurity’s acceptance or payment for any Products or Services or any similar act of Azurity.

Azurity reserves the right to update or modify this Purchase Order Terms and Conditions at anytime, without advance notice. Supplier is obligated to review this Purchase Order Terms and Conditions periodically to keep informed of any changes or updates.

  • PRICE; INVOICING; PAYMENT
    • Price. The price for the Products shall, as applicable, cover the net weight of the Products, and no extra charge of any kind, including charges for boxing, packaging or crating, shall be allowed unless specifically agreed to in advance in writing by Azurity. The Price for Services shall cover all activities required to perform the Services as contemplated in this Purchase Order.
    • Taxes. The amount of taxes imposed will be separately stated on the Order Form and any related invoices and all amounts shown will include all federal, state and local sales, use, excise and similar taxes applicable to the Products or Services sold or provided under this Purchase Order or the materials used in connection therewith; and Supplier shall pay any and all such taxes, except taxes required by Law (as defined in Section 6(a) below) to be paid or borne by Azurity. Notwithstanding the foregoing, each of Azurity and Supplier shall bear sole responsibility for all taxes of any kind imposed by federal, state, local, or foreign governmental authority, directly on said party, including, but not limited to, those on, or measured by or referred to as income, gross receipts, financial operations, franchise, profits, license, excise, premium, windfall profits taxes, duties or similar fees, assessments or charges of any kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed by such governmental authority with respect to that party’s income, operations, employment, property (whatever owned, leased or deemed to be owned or leased) or business operations.
    • Invoice: Payment: Billing Disputes. Unless otherwise specified by Azurity, Supplier shall invoice Azurity for the Products or Services provided under this Purchase order only after the Products or the Services are received by Azurity. Final payment shall not be made until the Products or Services provided meet the requirements specified in this Purchase Order. Unless otherwise specified by Azurity on the applicable Order Form, payment terms shall be net thirty (30) days after Azurity’s receipt of the applicable invoice submitted in accordance with, and containing any information specified on, the applicable Order Form. All invoices shall be paid with the next scheduled processing run immediately following the invoice due date. Azurity may setoff any amount owing from Supplier to Azurity against any amount payable by Azurity. Azurity may withhold payment of any amount owing from Supplier to Azurity against any amount payable by Azurity. Azurity may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes. Such withholding of payment during any dispute shall never be the basis of an Azurity default hereunder. Any such billing disputes shall not be cause for Supplier’s nonperformance of Services and/or non-delivery of Products, as the case may be, under this Purchase Order. Payment by Azurity shall not result in a waiver of its rights under this Purchase Order. Further, Supplier shall perform its obligations under this Purchase Order in a manner that meets or exceeds the service levels, if any, set forth in this Purchase Order. If Supplier fails to meet any such service levels, Supplier shall perform a root cause analysis of such failure and shall promptly take corrective actions. Additionally, in the event of any such failure, Azurity shall receive the service level credits, if any, set forth in the Purchase Order. Service level credits shall not be deemed Azurity’s sole and exclusive remedy for any failure by Supplier to achieve service levels. In order to be eligible for reimbursement by Azurity of reasonable out-of-pocket travel and travel-related expenses incurred by Supplier Personnel (as defined in Section 6(a) below) in providing the Products and/or Services hereunder, all such expenses incurred by Supplier must have been pre-approved by Azurity in writing prior to the date such expenses are incurred. Supplier will (i) provide truthful and complete documentation supporting in reasonable detail, the delivery of the Products or the Services performed and any expenses incurred, (ii) maintain true, accurate, and complete invoices, reports, statements, books, and other records, and (iii) secure pre-authorization in writing from Azurity for any extraordinary expenditure.
    • Most Favored Customer Status: The parties intend that Azurity shall have the status of a “most-favored customer” with respect to matters of pricing, availability, and other terms. Suppler represents and warrants that the prices and other terms provide to Azurity under this Purchase Order are not less favorable than those extended to any of its other customers for similar Products and Services under reasonably similar circumstances and, in the event that Supplier provides any of its other customers with more favorable prices or other terms, Supplier shall immediately provide that more favorable price or other term to Azurity.
  • DELIVERY; CANCELLATION; INSPECTION; ACCEPTANCE
    • Product Delivery: Supplier shall be responsible for packaging, loading and shipping the Products in accordance with any packaging specifications, shipping methods and other related requirements set forth in this Purchase Order or otherwise communicated in writing to Supplier by Azurity. If no such specifications, methods or requirements are so specified, Supplier shall be responsible for packaging, loading and shipping the Products in a manner sufficient to prevent damage and loss to the Products during shipment. Shipments must equal quantity ordered, unless otherwise agreed to by Azurity in writing. Suppler shall provide a packing list to Azurity (which shall be securely attached to the outside of the package) for all shipments referencing this Purchase Order number. Unless otherwise specifically provided for herein, Supplier shall be responsible for freight and delivery to the destination specified on the applicable Order Form. All freight and delivery charges will be borne by Supplier, unless specifically agreed to in advance, in writing, by Azurity. Provided Azurity agrees to accept such freight and delivery charges in advance, the amount allocated for product freight delivery will be separately stated on the Order Form and any related invoices, and all amounts shown will include all packaging, loading and shipping applicable to the Product or Services sold or provided under this Purchase Order or the materials used in connection therewith. Under no circumstances will Supplier include in such charges, or will Azurity bear, additional or charges related to the freight and delivery of covered Products and/or Services, including, but not limited to, fuel surcharges, energy surcharges, or seasonal surcharges, whether originated by Supplier or on behalf of any third party. Notwithstanding any provision in this Purchase Order to the contrary, Supplier shall bear all risk of loss and damage to the Products until final acceptance by Azurity at Azurity’s “ship to” destination specified on the applicable Order Form. Further Supplier shall bear the same risks with respect to any Products rejected by Azurity or as to which Azurity has revoked its acceptance from the time of such rejection or revocation. Furthermore, in no event shall Azurity’s acceptance of any early delivery accelerate any payment obligations to the Azurity.
    • Certificate of Conformance. A certificate of conformance indicating that the Products or Services meet the requirements specified in this Purchase Order is required for each shipment. If applicable, the certificate must contain at a minimum this Purchase Order number, applicable part number(s) (or material type), description, manufacturer material or part number, revisions level, quantity, date shipped, lot number/amount, test/method(s), manufacturer, country of origin and expiration date.
    • Customs Clearance. For shipment of Products imported into the commerce of the United States, Supplier shall promptly provide Azurity with a commercial invoice that includes the information required by 19 CFR 141.86, as supplemented and/or amended from time to time. Supplier shall remain fully responsible for its compliance obligations under this Purchase Order.
    • Country of Origin Requirement. Whether a Product is imported into the United States or manufactured and delivered within the United States, Supplier shall determine the appropriate Country of Origin according to 19 CFR 102 (or relevant regulation, if a trade agreement is applicable) and mark Products in line with 19 CFR 134.
    • Safety Data Sheets. Supplier shall provide to Azurity all information related to the safety, safe handling, environmental impact, and disposal of the Product including, without limitation, safety data sheets. Supplier shall promptly deliver to Azurity any updates or amendments to the information provided pursuant to this Section and any new information relating to the safety, safe handling, environmental impact, or disposal of the Product.
    • Cancellation. The delivery of Products and/or Services shall strictly comply with the delivery date or delivery schedule, if any, specified by Azurity. If at any time it appears that Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Azurity in writing of reasons for, and the estimated duration of, the delay. If requested by Azurity, Supplier shall ship delayed Products by means to avoid or minimize delay to the maximum extent possible, any added costs to be borne by Supplier. In addition to its other remedies, Azurity reserves the right to cancel all or any part of any Purchase Order for the undelivered Products or unperformed Services if Supplier does not deliver the Products or perform the Services as specified in this Purchase Order.
    • Changes. Supplier acknowledges and agrees that Azurity may provide Supplier with a written request for changes to the Services and/or Products, as the case may be, from time to time. Azurity and Supplier shall review all such requests to determine the effect, if any, such requested changes may have upon fees payable, delivery schedule, and other terms and conditions of this Purchase Order. After such effects have been assessed, Azurity may decide, in its sole discretion, whether to implement such changes. If Azurity elects to implement such changes, the parties shall enter into a written agreement signed by both parties that describe such changes, which agreement shall constitute an amendment to this Purchase Order.
    • Inspection; Acceptance of Products and Services. All Products or Services delivered or performed shall be subject to final review, inspection and acceptance by Azurity, notwithstanding any payment or initial inspections. Acceptance of Products and Services shall occur when the Products or Services delivered under this Purchase Order have been inspected by Azurity and determined to meet the requirements specified in this Purchase Order. If at the time of delivery, Supplier is aware that the Products shipped to Azurity do not meet the requirements specified in this Purchase Order, in anyway, Supplier must notify Azurity, prior to delivery, in writing, of any identified non-conformance. Such non-conforming Products must be clearly identities and segregated from other Products being delivered. Notwithstanding Supplier’s self-identification of non-conforming Products, Azurity shall inspection the Products or Services within a reasonable period of time (not to exceed ninety (90)days) after the applicable Products have been delivered or Services completed by Supplier. For the avoidance of doubt, there shall be no time restrictions applicable to Azurity’s provision of notice of rejection of any Product with respect to any latent defects, which shall include any defects that may not be detected by Azurity through standard inspection and testing of Product sample or that may affect only a portion of Product. If any portion Products or Services do not meet the requirements specified in this Purchase Order, Azurity shall give Supplier detailed written notification of the deficiency or non-conformance, and Azurity has the right, at its sole option and effective upon such written notification to Supplier, to (i) reject all or a portion of such deficient or non-conforming Products or Services, or (ii) accept all or a portion of such deficient or non-conforming Products or Services with a price reduction for the cost of repair or diminution of value for such deficient or non-conforming Products or Services, or (iii) reject all or a portion of such deficient or nonconforming Products of Services and receive credit for the full value of such deficient or non-conforming Products or Services, or (iv) direct Supplier to repair, replace or re-perform the deficient or non-conforming Products or Services within thirty (30) days after Azurity’s direction, or (v) direct Supplier to cease all Supplier activities related to Product or Services; (vi) make, or have a third party make, all repairs, modifications, or replacements necessary to enable such deficient or non-conforming Products or Services to meet the requirements specified in this Purchase Order, and/or (vi) direct Supplier to refund (by direct payment and not issuance of credit to Azurity by Supplier or offsetting any remaining amount owed by Azurity to Supplier) Azurity all fees paid by Azurity hereunder for the deficient or non-conforming Products of Services and those Product’s or Services that are dependent on such deficient or non-conforming Products or Services. Any such corrected Product or Services shall be subject to the same inspection and acceptance terms provided for in Section 2(g). If Azurity directs Supplier to repair, replace or re-perform the deficient or non-conforming Products or Services and Supplier fails to complete same within thirty (30) days after Azurity’s direction, then Supplier shall refund (by direct payment and not by issuance of credit to Azurity by Supplier or offsetting any remaining amount owed by Azurity to Supplier) to Azurity all fees paid by Azurity hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Inspection and acceptance of any Products or Services by Azurity shall not affect Supplier’s warranties or Azurity’s remedies under Section 6(a) below. The foregoing shall not be construed to limit or exclude any other rights or remedies of Azurity at law or in equity.
    • Sustainable Shipping and Packaging. In the event Supplier is responsible for selecting the carrier pursuant to Section 2(a), Supplier shall designate a carrier who will and shall use its best efforts to ensure that its designated carrier minimizes transportation charges and reduce fuel usage and greenhouse gas and air pollutant emissions, provided that such efforts shall not impair Supplier’s performance under this Purchase Order.
  • ENVIRONMENTAL, HEALTH AND SAFETY MATTERS
    • Supplier shall comply and shall ensure that the Products and/or Services comply with all applicable Environmental Laws (as defined herein). With respect to all environmental, health and safety matters related to Supplier’s (including Supplier Personnel) activities in providing Products and/or Services to Azurity, Supplier shall: (a) inform Azurity Promptly of any significant adverse event (e.g. fires, explosions, accidental discharges) that have affected or have the potential of affecting (i) the quality of the Products and/or Services to be delivered and/or (ii) any Azurity facility, property, or asset; (b) inform Azurity promptly of any allegations or findings of violations of applicable laws, including Environmental Laws, that have affected or have the potential of affecting (i) the quality of the Products and/or Services to be delivered and/or (ii) any Azurity facility, property or asset and any individual located at those locations; and (c) implement promptly any corrective actions which may be reasonably requested by Azurity, including, without limitation, adhering to reasonable and significant elements of the environmental, safety and industrial hygiene program adhered to by Azurity in its sole operations.
    • Supplier shall have an implement a documented health and safety policy which addresses, among other things, elimination of workplace injuries. Supplier shall be responsible for the health and safety of Supplier Personnel, as defined herein, including providing necessary training and other requirements of applicable laws, including, but not limited to, the Occupational Safety and Health Act and state equivalents, while present at an Azurity facility, property or asset. Supplier shall comply with all applicable laws and Azurity requirements and shall cause Supplier Personnel to do the same, and shall provide any safety devices or measures to protect persons and property while present at an Azurity facility, property or asset. Supplier shall formulate and implement an overall safety training program that includes rules and regulations to promote safe and orderly prosecution of Supplier’s activities, which address Azurity’s site-specific safety rules and regulations and provides for frequent and regulation inspection of the jobsite, materials, and equipment, as applicable by Competent Persons designed by the Supplier. “Competent Persons” mean those capable of identifying existing and predictable hazards and who have the authority to take prompt correction measures to eliminate them. Supplier shall immediately notify Azurity of any health and safety incidents or any non-compliance with health and safety laws while performing Services at an Azurity facility, property or asset. All Products and Services shall be subject to environmental, health and safety inspection at all times by Azurity.
    • Supplier shall have and implement a documented environmental policy which addresses, among other things, its ongoing commitment to full compliance with Environmental Laws (as defined herein), sustainability, pollution prevention, waste reduction, and energy and water efficiency and quality. Upon Azurity’s request, Supplier shall provide data regarding the Scope 1, Scope 2, and, as available, Scope 3 greenhouse gas emissions associated with the provision of the Products and/or Services, including, without limitation, the methodology employed to collect and report such data. Supplier shall provide other information regarding the environmental impact of the Products and/or Services as Azurity shall reasonably request. All information provided pursuant to this Section 3 is, or shall be, complete, truthful and accurate. In the event any such information provided changes, Supplier shall immediately notify Azurity, in writing with reasonable detail, of such change. As and when they become available, Supplier shall identify and bring to Azurity’s attention Products and/or Services and process options that have a reduced environmental impact as compared to the Products and/or Services described on the Order Form. Supplier shall provide the Sustainability Option or shall develop a Sustainability Option as directed by Azurity. Supplier shall not charge a premium for these options. Supplier shall also identify and bring to Azurity’s attention any Product take-back programs available.
    • “Environmental Laws” means all applicable Laws relating directly or indirectly to (i) the protection of the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface or subsurface land); (ii) the protection and occupational health and safety of workers and employees; or (iii) the registration, licensing, notification, warning or other governmental approval of the Product and/or Service or any ingredients, by-products, intermediates thereof (including, but not limited to laws such as California Safe Drinking Water and Toxic Enforcement Act of 1986, Toxic Substances Control Act, or the EU Registration, Evaluation, Authorization and Restriction of Chemicals); or (iv) the exposure to, or the use, transportation, storage, recycling, reuse, treatment, generation, labeling, protection, release or disposal of any and all Hazardous Materials. “Hazardous Materials” means any (a) petroleum or petroleum products, byproducts or breakdown products, radioactive materials, toxic mold, radon, asbestos or asbestos-containing materials, lead-based paint, urea formaldehyde foam insulation or polychlorinated biphenyls; (b) any chemicals, materials, substances, compounds, or mixtures, products or byproducts, biological agents, living or genetically modified materials that are now or hereafter become defined, characterized or regulated by Environmental Laws or included in the definition, or otherwise determined to be “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “special waste,” “toxic substances,” “pollutants,” “contaminants,” “toxic,” “dangerous,” “corrosive,” “flammable,” “reactive,” “radioactive,” or words of similar import, under any Environmental Law; and (c) any other substance or waste that is now or hereafter prohibited, limited or regulated by any regulatory authority.
  • AUDIT.
      Supplier shall provide (and shall cause each Supplier subcontractor to provide) to Azurity or its representatives, including its external auditors and to any governmental authority access at all reasonable times and after reasonable notice (except in the case of an audit by a governmental authority) to any facility of Supplier (and each Supplier subcontractor), Supplier Personnel, and to data and records, in each case relating to the Products and/or Services provided hereunder and Supplier’s performance under this Purchase Order, for the purposes of: (a) performing audits and inspections to verify the integrity and security of Azurity Information (defined below) and to examine the systems that process, store, support and transmit Azurity Information and to ensure that Azurity is compliant with all Laws; (b) observing Supplier’s performance of its obligations under this Purchase Order, including without limitation compliance with Environmental Laws and business continuity standards; and (c) enabling Azurity to comply with all applicable Laws. Supplier shall not require that Azurity enter into a separate confidentiality, non-disclosure, site visit or similar agreement in connection with any such access, inspection, audit or observation by Azurity or its auditors or a governmental authority. Supplier shall cooperate with Azurity’s representatives for all of these purposes, and shall promptly correct, at no expense to Azurity, any deficiencies noted during the audits/inspections that materially jeopardize Supplier’s ability to fulfill its obligations or that may cause harm to human health or the environment. Supplier further agrees to maintain its books and records relating to Products and/or Services provided under this Purchase Order for a period of six (6) years or such longer period as may be required by applicable Law from the date work under this Purchase Order was completed. If any such audit reveals that Supplier has overcharged Azurity, Supplier shall promptly reimburse Azurity for such overcharge, and in the event that any such overcharge equals an amount equal to or greater than five percent (5%) of the amount that should have been charged under the terms of this Purchase Order, then Supplier shall promptly reimburse Azurity for all reasonable costs and expenses incurred in the conduct of the audit. Supplier acknowledges and agrees that Azurity shall have the right, at any time during the term of this Purchase Order, including any renewal thereof, to request that Supplier complete any forms (or any successor process) and that Supplier will cooperate with such request and in the remediation of any identified weaknesses that reasonably may affect the privacy, confidentiality, security or integrity of Confidential Information (as defined in Section 5(a) below).
  • CONFIDENTIAL INFORMATION
    • General Obligations. Supplier understands and acknowledges that, in the provision of Services or Products pursuant to this Purchase Order, Azurity may disclose to Supplier or Supplier may otherwise obtain information that Azurity (or any of its subsidiaries, Affiliates, vendors or customers) considers confidential. Such information may include all information relating to the subject matter of this Purchase Order, whether furnished to or obtained by Supplier or its representatives before, on or after the date of this Purchase Order, in any form, including, but not limited to, written, verbal, visual, electronic or in any other media or manner (“Confidential Information”). For the avoidance of doubt, any and all Personal Data (as defined below in Section 6(a)) made available to Supplier pursuant to the Services is deemed Confidential Information. Supplier shall keep Confidential Information strictly confidential as competitive-sensitive information. Supplier shall exercise the same degree of care for the Confidential Information of Azurity as it uses to protect its own confidential information, but in any event, not less than reasonable care, including, without limitation, the requirements of this Purchase Order. Supplier shall not disclose Confidential Information without the prior express written consent of Azurity to any person or entity not a party to this Purchase Order (other than as required by applicable Law) in any manner whatsoever, in whole or in part, and shall not be used by Supplier other than in connection with the purposes permitted by this Purchase Order. Confidential Information may be disclosed by Supplier only to the directors, officers, employees and agents (including subcontractors) of Supplier who have a legitimate need to know such Confidential Information for purposes of carrying out Supplier’s obligations under this Purchase Order, who have agreed to comply with confidentiality provisions for the protection of the Confidential Information no less protective than the terms of this Purchase Order, and who have been informed by Supplier of the confidential nature of the Confidential Information as well as of the confidentiality undertakings of Supplier contained herein. Supplier shall be responsible for any breach of this Section 5 caused by any such director, officer, employee or agent (including any subcontractor of Supplier).
    • Disclosure of Confidential Information. Notwithstanding the restrictions set forth above, if Supplier is required by Law to disclose any Confidential Information, Supplier may make the required disclosure, provided that prior to making any such disclosure, Supplier shall provide Azurity with: (i) written notice of the proposed disclosure in order to provide Azurity with sufficient opportunity to seek a protective order or other similar order preventing or limiting the proposed disclosure; and (ii) reasonable assistance in seeking such protective order or other similar order.
    • Return or Disposal of Confidential Information. Upon completion or termination of this Purchase Order, and at Azurity’s written request at any time, Supplier shall promptly return to Azurity or securely destroy (at Azurity’s election) all copies of all documents or other materials, in whatever form, that contain Confidential Information and are in the possession or under the control of Supplier or any Supplier Personnel and shall certify to Azurity in writing that Supplier has done so in accordance with applicable Laws.
    • Security Requirements. Supplier, for itself and on behalf of Supplier Personnel, represents and warrants that it has adequate and appropriate technical and organizational controls to ensure the confidentiality, privacy, security and integrity, availability and resilience of Azurity Information (as defined below) and to protect against unauthorized access to or use of Azurity Information (including, without limitation, where Azurity Information is transmitted over a network) that could result in the loss, corruption, destruction, unauthorized use, modification, or disclosure of or interference with Azurity Information, or the substantial harm or inconvenience to Azurity or any Individual ( each a “Security Incident”). “Azurity Information” means any information disclosed by or on behalf of Azurity to the Supplier including various forms of business information. Such technical and organizational controls shall also prevent, detect, respond and mitigate a Security Incident. Supplier shall have and maintain industry standard or better certifications and audits applicable to security safeguards for the Services, including without limitation, International Organization for Standardization (ISO), Cloud Security Alliance, and Service Organization Control (SOC) Reports, which shall be made available to Azurity from time to time upon Azurity’s request. Supplier acknowledges and agrees for itself and Supplier Personnel that Azurity shall have the right to require additional reasonable protections related to the confidentiality, privacy and security of Confidential Information in connection with this Purchase Order or any renewal or amendment thereof, and Supplier shall agree to such additional reasonable protections as Azurity may reasonably require.
    • Security Incident Notification. Supplier will notify Azurity within 24 hours in the event of any Security Incident by reporting such incidents to Azurity by phone 1-800-461-7449 or compliance@azurity.com. Such notice shall summarize in reasonable detail the impact on Azurity and the affected Individuals of the breach or unauthorized access, use, disclosure, modification, destruction or loss of Azurity Information and the corrective action taken or to be taken by Supplier for preventative measures to prevent any future reoccurrences of such Security Incident. Supplier will, at its own expense, take all necessary steps to (a) investigate the Security Incident; (b) eliminate or contain the exposure of the Azurity Information; (c) keep Azurity informed of the status of the Security Incident and all related matters; (d) provide reasonable assistance and cooperation requested by Azurity, in the furtherance of any investigation, remediation, and/or mitigation efforts, including any notification that Azurity may determine appropriate to send to affected Individuals, regulators, or third parties; and (e) develop and execute a plan, subject to Azurity’s approval, that reduces the likelihood of a recurrence of a similar Security Incident in the future.
    • The obligations of Supplier (and Supplier Personnel) in this Section 5 shall be in addition to any other indemnification obligations Supplier (and Supplier Personnel) may have under the indemnification provisions of this Purchase Order. For the avoidance of doubt, these obligations may be considered indemnification obligations if necessary to make Azurity and any affected Individuals whole. Any payments under this Section 5 shall not be limited by any limitation of liability or exclusion of consequential, special, punitive, or indirect damages. Further, the obligations under this Section 5 shall survive the completion of the Services or provision of Products, as well as not be limited by any arbitration, limitation of actions or other similarly limiting provisions.
    • Transfer. Supplier, for itself and on behalf of Supplier Personnel, agrees that it will only collect, use, process, disclose and retain Azurity Information in the United States and its territories, and will not transfer Azurity Information to any other country for any purpose, without the prior written authorization of Azurity.
  • DATA PRIVACY
    • General Privacy Obligations. As used herein, “Personal Data” has the meaning given by applicable data protection Laws and shall include information (regardless of the medium in which it is contained), whether alone or in combination with other available information that directly or indirectly identifies an Individual. “Individual” means a natural person. Supplier shall Process the Personal Data (i) only as needed to provide the Services, including with regard to any transfer (ii) in accordance with the Processing instructions of and (iii) in compliance with applicable law, including but not limited to applicable data protection laws and regulations. Supplier shall not use the Personal Data for its own purposes.
    • Non-Disclosure and Subprocessors. Supplier shall not disclose Personal Data to any third parties, unless expressly authorized by Azurity. Supplier shall ensure that its’ employees, agents and representatives processing Personal Data are (i) subject to suitable confidentiality obligations; (ii) informed about the data protection duties that are applicable to their provision of Services under this Purchase Order and (iii) trained accordingly. Supplier shall obtain Azurity’s prior written authorization prior to engaging any subprocessor and shall impose substantially similar obligations as set out herein by way of a contract and, if subprocessor fails to fulfil its data protection obligations, Supplier shall remain fully liable to Azurity for the acts or omissions of the subprocessor with respect to the handling of Personal Data.
    • Accountability, Cooperation and Audits. Supplier shall (assist Azurity, insofar as reasonably practical, for the fulfilment of Azurity’s obligation to timely respond to requests for exercising the data subject’s rights, set forth in applicable data protection laws, (in particular, if Supplier receives any of these requests, Supplier shall notify Azurity thereof immediately and, in no event, no later than the business day following reception of the request, jointly, as the case may be, with other information that could be relevant to answer the request); and (v) taking into account the nature of the processing and the information available to Supplier, assist Azurity to ensure compliance with its obligations relating to privacy breach notifications and consultation with regulatory authorities.
    • Transfer. Supplier shall be responsible for ensuring that any transfer of Personal Data complies with all applicable Data Protection Laws, including, but not limited to, any cross-border Transfer requirements or prohibitions. Supplier will, if so, requested by Azurity, or as required by applicable Law, enter into an appropriate agreement with Azurity governing any transfer of Personal Data, including, but not limited to the EU Standard Contractual Clauses (Controller to Processor), unless another adequacy mechanism for the transfer exists.
    • Additional Terms Applicable in the EEA. If this Purchase Order requires the Supplier to collect, use, disclose, hold or retain Personal Data internationally or from Individuals residing in the European Economic Area (“EEA”), Supplier agrees that: (i) Azurity shall, to the extent permitted by applicable Laws, be a “controller” and Supplier shall be a “processor” as such terms are defined in the EU General Data Protection Regulation (“GDPR”); and (ii) Supplier shall immediately inform Azurity if Supplier believes that any instruction violates the applicable data protection laws and regulations.
  • ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
    • Products and Services. Supplier represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall, until the earlier of twelve (12) months after first placed into service by Azurity or eighteen (18) months after delivery (or performance) by Supplier (or for such longer warranty period as provided by Supplier): (i) be free from defects in design, workmanship and materials; (ii) be of the kind, quantity and quality described in, and conform with, the requirements specified in this Purchase Order; (iii) be fit for the purpose intended; (iv) perform in the manner specified; (v) in the case of Services, reflect the highest standards of professional knowledge and judgment; (vi) designed and constructed to be safe and without risk to human health; (vii) be free of any claim of misappropriation or infringement by a third party; (viii) if the Products are software, be the most current releases generally available to third parties at the time of delivery; and (ix) comply with all other requirements of this Purchase Order. Supplier represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall, for a perpetual duration (A) be free and clear of all liens, claims and encumbrances by the date delivered to Azurity; (B) If the Product is software, it shall not contain any (1) “back door,” “time bomb,” “drop dead” device or other software routine designed to disable the software automatically with the passage of time or under the positive control of any person or (2) virus, “Trojan horse,” “worm” or other software routines or hardware components designed to permit unauthorized access, to disable, erase or otherwise harm the software, hardware or data, or to perform any other similar actions; (C) comply with all applicable global, federal, country, state, local, foreign and other laws, rules and regulations, ordinances, decrees, orders, codes and requirements (including, but not limited to, any requirements for consents, permits, certificates, approvals and inspections), as the same are promulgated, supplemented and/or amended from time to time (“Laws”) that apply to or govern the Services or Products to be provided by Supplier or any of the employees, contractors, subcontractors or agents of Supplier and its subcontractors (collectively, “Supplier Personnel”) pursuant to this Purchase Order Terms and Conditions, including, but not limited to, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act. and all applicable federal state and local laws relating to equal employment opportunity and non-discrimination; the Toxic Substance Control Act (the “TSC Act”); the Food, Drug and Cosmetic Act (the “FDC Act”); the Federal Insecticide, Fungicide and Rodenticide Act; the Federal Occupational Safety and Health Act; and the Immigration Reform and Control Act of 1986, data protection and privacy Laws, each as supplemented and/or amended from time to time; and (D) comply with all Azurity standard operating procedures, policies, control standards and guidelines applicable to the provision of Products or Services, each as supplemented and/or amended from time to time, including, but not limited to Azurity’s background check requirements and the “Contingent Worker Travel Policy”. All Supplier Personnel shall be properly educated, trained and qualified to provide the applicable Products and/or Services and shall be properly instructed on how to use and protect Confidential Information to ensure compliance with Supplier’s obligations under Section 5. Azurity shall have the right to review and approve the qualifications of all Supplier Personnel assigned to provide the Products and/or the Services under this Purchase Order. Azurity shall also have the right to designate at any time that any such Supplier Personnel be removed and replaced with respect to the performance of any activities associated with this Purchase Order. Azurity is an equal opportunity employer and federal contractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of Executive Order 11246, 41 CFR 60-1.4(a); the Vietnam Era Veterans’ Readjustment Assistance Act, 41 CFR 60-300.5(a); and Section 503 of the Rehabilitation Act of 1973, 41 CFR 60-741.5(a), and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
       
      Supplier shall, without additional cost to Azurity, within thirty (30) days of receipt of written notification of any non-conformance with the warranties set forth above in this Section 7(a), as directed by Azurity, correct any such non-conformance by promptly: (i) repairing, replacing or re-performing the non-conforming Products or Services; or (ii) refunding to Azurity by direct payment all fees paid by Azurity hereunder for the non-conforming Products or Services and those Products or Services that are dependent on such non-conforming Products or Services. The foregoing shall not be construed to limit or exclude any other rights or remedies of Azurity at law or in equity. The warranty with respect to any such corrected Products or Services shall be subject to the same terms as the warranty provided for in this Section 6(a).

      Without limiting the generality of the preceding provisions of this Section 6(a), Supplier represents, warrants, and covenants that all Product: (i) shall be adequately contained, packaged, marked, labeled and registered in compliance with, and shall conform to, the requirements of all applicable Laws; (ii) meet or exceed the safety standards established and promulgated under the Occupational Safety and Health Act of 1970, and the regulation issued thereunder (each as supplemented and/or amended from time to time); and (iii) are, as of the date of delivery, not adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act (FDCA) and are not articles which may not, under the provisions of Section 404, 505 or 512 of the FDCA, be introduced into interstate commerce, and are also not adulterated or misbranded within the meaning of the food, drug, or cosmetic laws of any state or local municipality.

      Without limiting the generality of the preceding provisions of this Section 7(a), Supplier represents, warrants, and covenants that every chemical substance and/or mixture as defined under the Toxic Substance Control Act (“TSCA”), contained in the Products or utilized in their manufacture, has been properly reported to the United States Environmental Protection Agency in accordance with the provisions of the TSCA and the regulations issued thereunder (each as supplemented and/or amended from time to time). Supplier further represents, warrants, and covenants that all color additives covered under this Purchase Order shall be manufactured by Supplier and (where color additive regulations require certification) are from batches certified in accordance with the applicable regulation promulgated under the FDCA or TSCA, as applicable. Supplier further represents, warrants, and covenants that Supplier shall immediately disclose if it knows or becomes aware of any detectible amount or possible generation of a chemical, including those that are naturally occurring and those that are unavoidable constituents or contaminants of a raw material or ingredient of the Product, listed by California Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65) in the Product. Supplier agrees to consider, and implement if directed by Azurity, Product formulation alternatives.

      Supplier further represents, warrants, and covenants that it does not and shall not (i) use involuntary, bonded or underage labor, or, to the extent applicable, (ii) maintain unsafe or unhealthy conditions in any employee lodging. Supplier agrees that it shall promptly disclose to Azurity any use or unintended use of involuntary, bonded or underage labor and correct unsafe or unhealthy conditions in any employee lodging that it provides.

      Supplier shall have a written Business Continuity Plan “(BCP)” and business continuity management system that (1) assures supply of Product or Service to Azurity in the event of a business interruption, including any disruption resulting from a Force Majeure Event; (2) identifies and protects critical dependencies; (3) complies with Laws; and (4) is consistent with current business continuity standards (e.g., ISO22301). Supplier shall immediately notify Azurity in the event of a potential disruption to critical dependencies and in advance of any potential implementation of the BCP.

      As a courtesy, Azurity may make available to Supplier from time-to-time tools, equipment or other materials to facilitate Supplier’s provision of Product and/or Services. These tools, equipment or/or other materials are being provided to Supplier without any warranties, express or implied. Supplier acknowledges that it possesses the necessary expertise to operate the equipment or other materials and it is free to decide whether or not to use such items, but any use is at Supplier’s sole risk.

      Supplier acknowledges that Personal Data regarding its Personnel may be provided to Azurity in the context of providing goods and or services to Azurity. Supplier agrees that it has the right to provide Personal Data to Azurity and that Supplier will provide any requisite notice to individuals and ensure that there is a proper legal basis for Azurity to use the Personal Data.

    • Criminal History Report. TO the extent permitted by applicable law, Supplier shall conduct a criminal history search consisting of a Federal Check, State Check, SS Trace, and Sex Offender Check for a period of seven (7) years on each of its employees or other personnel (“Resource”) it plans to utilize in providing the Product or Services for Azurity prior to any permitting any Resource to enter Azurity property or engage in action for Azurity. Supplier shall review any search results on a case-by-case basis and make a suitability determination in accordance with applicable law and job need. Supplier shall provide a copy of the results of any Resource’s background check within seven (7) days of Azurity’s request.
    • Global Trade Control Laws. The parties acknowledge that Products and Services covered by this Purchase Order and any Agreement may be subject to applicable economic sanctions, import, and export control laws, regulations and orders (herein “Global Trade Control Laws”), and Supplier agrees to perform all Services under this Purchase Order or any Agreement in full compliance with all applicable Global Trade Control Laws.

      Supplier agrees that it will not, without written consent from Azurity, knowingly transfer any Products, goods, software, technology or services to Azurity that are (i) controlled at a level other than EAR99 under the U.S. Export Administration Regulations; (ii) controlled under the U.S. International Traffic in Arms Regulations; (iii) specifically identified as a European Union Dual Use Item; or (iv) on an applicable export control list of a non-U.S. country. Supplier shall provide Azurity with the applicable export control classification (e.g., Export Control Classification Number) and Harmonized Tariff Schedule code for all Products, goods, software or technology it transfers to Azurity.

      Supplier agrees that no Products or Services under this Purchase Order or any Agreement will (i) be from or in a Restricted Market (as defined below); (ii) involve individuals ordinarily resident in a Restricted Market; or (iii) include companies, organizations or governmental authorities from or located in a Restricted Market. For purposes of this Purchase Order and any Agreement, “Restricted Market” means, as applicable under Global Trade Control Laws, the Crimean Peninsula, Cuba, the Donbass Region, Iran, North Korea, Sudan or Syria, or any other country, territory or region similarly sanctioned or subjected to an economic embargo by the government of the United States or any other applicable jurisdiction.

    • Restricted Party. Supplier represents, warrants, and covenants that Supplier is not designated as a Restricted Party (as defined below), and that none of its owners, directors, or officers are Restricted Parties or are owned or controlled by Restricted Parties. Supplier has not and will not use, in any capacity in connection with the delivery of the Products or the Services performed under this Purchase Order, any person or entity who or that has been designated as a Restricted Party or is owned or controlled by a Restricted Party. Supplier will immediately notify Azurity in the event that any of the representations, warranties or covenants in this Section 7(c) change during the term of this Purchase Order. Notwithstanding any cure periods set forth herein, Supplier acknowledges that designation as a Restricted Party shall be grounds for immediate termination of this Purchase Order by Azurity for cause with no cure period. “Restricted Party” means any individual or entity placed on lists of restricted, sanctioned or debarred parties maintained by an applicable governmental authority, including those established under the FDCA or the U.S. Foreign Assets Control Regulations.
    • Anti-Bribery/Anti-Corruption Breach. Supplier has not and will not directly or indirectly offer or pay, or authorize such offer or payment of, any money or anything of value in an effort to influence any Government Official (as defined below) or any other person in order for Azurity to improperly obtain or retain business or to gain an improper business advantage and has not accepted, and will not accept in the future, such a payment. For purposes of this Purchase Order, a “Government Official” shall be broadly interpreted and means: (i) any elected or appointed non-U.S. Government official (e.g., a legislator or a member of a non-U.S. Government ministry); (ii) any employee or individual acting for or on behalf of a non-U.S. Government official, non-U.S. Government agency, or enterprise performing a function of, or owned or controlled by, a non-U.S. Government (e.g., a healthcare professional employed by a non-U.S. Government hospital or researcher employed by a non-U.S. Government university); (iii) any non-U.S. political party officer, candidate for non-U.S. public office, or employee or individual acting for or on behalf of a non-U.S. political party or candidate for public office; (iv) any employee or individual acting for or on behalf of a public international organization; (v) any member of a royal family or a member of a non-U.S. military, and (vi) any individual otherwise categorized as a Government Official under applicable law. “Government” means all levels and subdivisions of governments (i.e., local, regional, or national and administrative, legislative, or executive).
    • Conflicts. The execution, delivery and performance of this Purchase Order by Supplier does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, and does not violate any law or regulation of any court, governmental body or administrative or other agency having authority over Supplier. Supplier is not currently a party to, and during the term of this Purchase Order will not enter into, any agreements, oral or written, that are inconsistent with its obligations under this Purchase Order.
    • Authority. Supplier is validly existing and in good standing under the Laws of the jurisdiction of its organization and has the power and authority to enter into this Purchase Order. This Purchase Order has been duly executed and delivered by Supplier and constitutes the valid and binding obligation of Supplier, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Purchase Order have been duly authorized by all necessary action on the part of Supplier, its officers and directors
    • No Actions Pending. There is no action, suit or proceeding, at law or in equity, before or by any court or governmental authority, pending or, to the best of Supplier’s knowledge, threatened against Supplier, wherein an unfavorable decision, ruling or filing would materially adversely affect the performance by Supplier of its obligations hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the enforceability of this Purchase Order, or any other agreement or instrument entered into by Supplier in connection with the transactions contemplated hereby. In the event Supplier becomes aware of such action, suit or proceeding, Supplier shall immediately notify Azurity.
    • Cooperation/Coordination with Third Party Vendors. Supplier acknowledges that Azurity may, during the course of this Purchase Order, work with one or more other third party consultants and service providers from time to time in connection with this Purchase Order. Supplier shall reasonably cooperate with all such third parties as Azurity may request from time to time.
  • INDEMNIFICATION
    • To the fullest extent permitted by applicable Laws, Supplier hereby agrees to defend, indemnify, and hold harmless Azurity, its affiliates (and their respective directors, officers, employees, agents, successors and assigns) (each, an “Indemnified Party”) from and against any and all claims, liabilities of every kind, including liability based on contributory, vicarious, or any other doctrine of secondary liability, or character, (collectively, “Losses”) arising out of or relating to any and all claims, liabilities, liens, demands, obligations, actions, proceedings, suits, causes of action of every kind (regardless of whether or not such Losses are caused in part by a party indemnified hereunder) arising out of or related to: demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising, directly or indirectly, from: (i) the acts or omissions of Supplier or Supplier Personnel in connection with the provision of the Services or Products under this Purchase Order; (ii) any individual’s (including any Supplier Personnel’s) prospective, then-current or former employment by Supplier, including (A) any claim arising under occupational health and safety, worker’s compensation, ERISA or other applicable Law, (B) any claim based on or arising out of any theory that Azurity is an employer or joint employer of any Supplier Personnel, (C) any claim arising out of any termination or separation from Supplier; and (D) any claim arising out of Supplier’s failure to pay any of its Personnel; (iii) a breach by Supplier of the representations, warranties, covenants, and any other provisions set forth in this Purchase Order Terms and Conditions, including, but not limited to, any confidentiality, privacy and/or security obligation stated in Section 5 above and the obligations to comply with Laws; (iv) any claim charging that Supplier’s provision or Azurity’s purchase or use of the Products or Services provided under this Purchase Order constitutes misappropriation or infringement of any Intellectual Property Rights (as defined in Section 11 below) or breach of a confidential relationship; (v) injury to or death of any person or damage to any property resulting from and/or caused by Supplier or its Personnel in connection with the Supplier’s performance or non-performances of Supplier’s obligations under this Purchase Order ; (vi) Supplier’s failure to require any consultant or subcontractor to be insured as set forth under the terms of this Purchase Order; or (vii) the negligence or willful misconduct of Supplier or its Personnel. If the Products or Services, or the use of such Products or Services, are held to constitute an infringement or misappropriation and their sale or use is enjoined, Supplier shall, at Supplier’s expense and option, either procure for Azurity the right to continue to use such Products or Services, or replace the same with equivalent non-infringing Products or Services, or modify the same so they become equivalent non-infringing Products or Services; except that if the foregoing is not commercially practicable or upon request by Azurity, Supplier shall refund to Azurity by direct payment all fees paid by Azurity under this Purchase Order for such Products or Services and those Products or Services that are dependent thereon.
    • Supplier shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any claim, demand or action for which the Indemnified Party seeks indemnification hereunder. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. Supplier shall not have the right to settle any claim without the prior written consent of the Indemnified Party. This Section 8 shall not be construed to limit or exclude any other claims or remedies at law or in equity that an Indemnified Party may assert.
  • INSURANCE
    • Prior to the commencement of any performance under this Purchase Order, Supplier shall provide and maintain such insurance coverage, in minimum types and amounts as described below in this Section, as will protect it and Azurity (including Azurity affiliates, its and their employees, directors, officers, shareholders and agents) from all claims which may arise out of or result from Supplier’s performance under this Purchase Order, whether such operations be by itself or by its subcontractors, agents or representatives or by anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable.
      • Any and all deductibles for such insurance policies shall be assumed by, for the account of, and at Supplier’s sole risk. All deductibles and self-insured retention amounts must be acceptable to and approved, in writing (if required), by Azurity.
      • Such insurance policies shall be primary and non-contributing with respect to any other similar insurance policies available to Azurity or its affiliates. Except for Workers Compensation/Employers’ Liability and Professional Liability/Errors & Omissions insurance, all such policies shall include Azurity and its affiliates and any other such entities as Azurity may reasonably request, as additional insureds. All such polices shall provide a waiver of subrogation in favor of Azurity and its affiliates.
      • Supplier shall furnish to Azurity original certificates and additional insurance endorsements evidencing the specified insurance coverage, prior to beginning performance under this Purchase Order, and at contract renewal or expiration of any one coverage, whichever occurs first. If requested by Azurity, copies of the insurance policies, themselves will be provided. Not less than thirty (30) days’ prior written notice of any policy cancellation, or material change shall be given to Azurity. The Certificate(s) of Insurance shall be signed by a person authorized by the insurer(s) to bind coverage on its (their) behalf. Supplier shall provide, pay for, and maintain in effect the policies with minimum “A-” A.M. Bests rated insurance carriers, or insurance companies satisfactory to Azurity. Coverage shall be maintained for the duration of this Purchase Order or as specified below, whichever is longer.
    • The insurance required under Section 9(a) above shall be written for not less than any limits of liability specified herein or as required by law, whichever is greater. Supplier shall have the right to provide the total limits required by any combination of primary and Umbrella/Excess coverage; said insurance to include, without limitation, the following:
      • (Insurance for liability under the Workers’ Compensation or occupational disease laws of any state or other jurisdiction in which obligations of Supplier are performed (or be a qualified self-insurer in those states and jurisdictions) or otherwise applicable with respect to persons performing on behalf of Supplier and Employer’s Liability insurance covering all claims by or in respect to the employees of Supplier and all of its subcontractors, agents and representatives, providing:
        • Coverage for the statutory limits of all claims under the applicable State Workers’ Compensation Act or Acts. If the Supplier’s performance will result in exposures under the U.S. Longshoreman’s Act and its amendments (work dockside or on water), the Jones Act (involving seaman, masters and crew of vessels) or the Federal Employer’s Liability Act (railroad exposure), coverage shall be extended to include insurance coverages mandated thereby
        • Employer’s Liability Insurance with a limit of not less than $1,000,000;
        • Voluntary Compensation insurance covering all employees not subject to the applicable state Workers’ Compensation Act or Acts.
      • Commercial General Liability insurance with the following limits and forms/endorsements: Each Occurrence $1,000,000/$2,000,000 annual aggregate; and Products & Completed Operations Aggregate $2,000,000.
        • Occurrence form including premises and operations coverage, products & completed operations, broad form property damage, coverage for independent contractors, personal injury coverage, blanket contractual liability, explosion, collapse, and underground (“XCU”) and watercraft liability coverage if any of the Supplier’s performance is on or near a body of water.
        • Products & Completed operations coverage shall be maintained for a period of three (3) years following the date that this Purchase Order is completed and accepted.
        • Including Azurity and its Affiliates as additional insureds with respect to any legal liability of Azurity or its Affiliates, arising out of the Supplier’s performance of this Purchase Order.
      • Automobile and Truck Liability Insurance: $1,000,000 combined single limit for bodily injury and property damage per accident arising out of all owned, non-owned and hired vehicles. This must cover all automotive and truck equipment used in the Supplier’s performance both on and off Azurity’s property, and must include the loading and unloading of same.
      • Crime insurance covering employee dishonest with a limit of $1,000,000, coverage includes third party endorsement.
      • In the event Supplier is furnishing design services or other professional services, Supplier shall obtain Professional Liability or Errors & Omissions Insurance for the Services. Such insurance shall have a limit of $5,000,000 per occurrence. Coverage shall be maintained for a period of (3) years following final completion and acceptance of the Products and Services specified in this Purchase Order.
      • Umbrella (Excess) Liability Coverage (follow form) in an amount not less than $3,000,000 per occurrence.
      • If Supplier has care, custody or control of Azurity property or inventory, Supplier shall be responsible for any loss or damage to it, and provide all risk Property Coverage at full replacement cost for same.
    • Acceptance of Insurance Certificate. Acceptance of any insurance certificate by Azurity shall not constitute acceptance of the adequacy of coverage, compliance with the requirements of this Purchase Order or serve as an amendment to this Purchase Order.
  • LIMITATION OF LIABILITIES
      Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, under no circumstances shall Azurity or its affiliates be liable for consequential, indirect, special, punitive, or incidental damages or lost profits, whether foreseeable or unforeseeable, based on claims of Supplier or any other party arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, failure of any remedy to achieve its essential purpose, or otherwise. Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, in no event shall Azurity or its affiliates be liable for any damages or losses that exceed, in the aggregate, the amount of fees paid and payable by Azurity for the Products or Services that gave rise to such damages or losses for each respective breach or series of related breaches. This Section 10 shall not apply only when and to the extent applicable Law specifically requires liability despite the foregoing disclaimer, exclusion and limitation.
  • TERM AND TERMINATION
    • Term. This Purchase Order shall commence upon Supplier’s acceptance of this Purchase Order and shall continue through Azurity’s acceptance of such Services or Products, as may be further specified in this Purchase Order.
    • Termination. In addition to Azurity’s termination rights set forth elsewhere herein, Azurity may terminate this Purchase Order, in whole or in part, in its sole discretion: (i) upon fifteen (15) days prior written notice to Supplier for any reason; (ii) immediately upon written notice to Supplier if Supplier breaches this Purchase Order; (iii) if reasonable grounds for insecurity arise with respect to Supplier’s performance and Supplier fails to furnish adequate assurances within five (5) days after written demand by Azurity for such assurance; or (iv) immediately upon written notice to Supplier if Supplier becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Supplier shall cease to provide the cancelled Services or Products, as the case may be, to Azurity as soon as commercially practicable after receiving such notice.
    • Termination for Breach of Global Trade Control Laws. Azurity may terminate this Purchase Order effective immediately upon notice to Supplier if Supplier breaches any of the representations, warranties, covenants, or agreements set forth in Section 7, or for any other violation of Global Trade Control Laws. If this Purchase Order is so terminated, Azurity shall not be responsible for any payments due to Supplier or another party, even if activities have already occurred. Further, Supplier shall be responsible for reimbursing Azurity for any payments due to Azurity under this Purchase Order or any Agreement that are blocked due to violation of Global Trade Control Laws.
    • Termination for Breach of Anti-bribery/Anti-Corruption Representation. Azurity may terminate this Purchase Order effective immediately upon notice to Supplier, if Supplier (i) breaches any of the representations and warranties set forth in Section 7 if Azurity learns that (a) improper payments are being or have been made or offered to Government Officials (as defined in Section 7(d)) or any other person by the Supplier or those acting on behalf of the Supplier with respect to this Purchase Order or (b) that the Supplier or those acting on behalf of the Supplier with respect to this Purchase Order has accepted any payment, item, or benefit, regardless of value, as an improper inducement to award, obtain or retain business or otherwise gain or grant an improper business advantage from or to any other person or entity. Further, in the event of such termination, Supplier shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional third parties entered into by Supplier prior to such termination, and Supplier shall be liable for damages or remedies as provided by this Purchase Order, at law or in equity.
    • Effect of Termination/Expiration. Upon termination or expiration of this Purchase Order: (i) Azurity shall be entitled to the ownership, possession, use and license of any and all work in process under this Purchase Order to which it is entitled pursuant to Section 11 below; (ii) Supplier shall invoice Azurity for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under this Purchase Order through and including the date of any such termination or expiration; and (iii) Supplier shall comply with its obligations under Section 5(c) above.
    • Survival. The provisions of Sections 1(b) and (c), 4 –7, 9, 10(c) and (d), 11 – 12 and any other provisions which are expressly or by implication intended to continue in force after such termination or expiration shall survive the termination of this Purchase Order.
  • INTELLECTUAL PROPERTY
      For all work products and deliverables created under this Purchase Order through the performance of the Services, Supplier and Supplier Personnel hereby assign and transfer to Azurity all rights to possession of, and all right, title, and interest, including all patent, copyright, trademark, trade secret and other proprietary and intellectual property rights (“Intellectual Property Rights”) in and to such work products and deliverables created under this Purchase Order, in whatever form or medium captured, and in and to all physical and electronic materials, papers, and documents (including drawings), hereinafter referred to as “Works,” and copies, abstracts, and summaries thereof, which are developed or conceived or which may come into their possession in any manner by reason of the provision of Services under this Purchase Order. Supplier shall promptly disclose to Azurity any Works known to Supplier or Supplier Personnel, and all such Works shall be deemed to be “works made for hire” exclusively for Azurity, with Azurity having sole ownership of such Works and the sole right to obtain and to hold in its own name any Intellectual Property Rights therein and thereto. Supplier hereby agrees to give Azurity or any person designated by Azurity at Azurity’s expense, all reasonable assistance required to perfect the rights hereinabove defined. Supplier represents, warrants and covenants that it has caused or will cause all Supplier Personnel to enter into an enforceable agreement with Supplier prior to their performance of any Services, which agreement includes appropriate confidentiality, assignment of work product and invention provisions to effectuate the provisions of this Purchase Order. Notwithstanding the foregoing provisions, Azurity’s ownership rights do not apply or extend to any of the following (collectively, the “Supplier Property”): (i) any methodologies, methods of analysis, ideas, concepts, know-how, models, tools, techniques, skills, knowledge and experience or other materials or property owned or licensed by Supplier before the provision of the Services under this Purchase Order; (ii) any improvements or other modifications to any of the foregoing that Supplier creates during the performance of the Services under this Purchase Order without the use of any of Azurity’s Confidential Information or Intellectual Property Rights; or (iii) any of the Intellectual Property Rights in or to any of the items described in the preceding clauses (i) and (ii). All right, title, and interest in and to the Supplier Property is and shall remain in Supplier, and Supplier shall not be restricted in any way with respect to the Supplier Property. However, to the contrary, to the extent that any Supplier Property is incorporated into or embodied in any of the Works, or covers or controls any of the Works, or is necessary in order to fully and freely use any of the Works, Supplier hereby grants to Azurity and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license, with the right to grant sublicenses, to (A) use such Supplier Property solely as part of or in connection with such Works or any derivative work based upon such Works, and (B) to modify such Supplier Property, solely to the extent such modification is necessary in connection with the creation of a derivative work based upon such Works.
  • MISCELLANEOUS
    • Use of Azurity Trademark/Name; Publicity. Supplier shall not issue any press release or other publicity materials, or make any presentation with respect to the existence of this Purchase Order or the terms and conditions hereof without the prior written consent of Azurity in each instance. Supplier shall not publicize or use any name, trade name, service marks, trademarks, trade dress or logos of Azurity (or any of its affiliates) nor identify Azurity (or any of its affiliates) as a customer without Azurity’s prior written consent in each instance. This restriction shall not, however, apply to the extent that any such disclosures are required by applicable Laws, including as may be required in connection with any filings required to be made with the United States Securities and Exchange Commission or by the disclosure policies of a major stock exchange.
    • Governing Law; Venue. The validity, interpretation and performance of this Purchase Order shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the principles of conflicts of law. THE PARTIES EXPRESSLY AGREE THAT THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) IS SPECIFICALLY EXCLUDED AND SHALL NOT APPLY TO THIS PURCHASE ORDER. All actions and proceedings under this Purchase Order shall be brought exclusively in a state or federal court of competent subject matter jurisdiction in the County of Middlesex in the Commonwealth of Massachusetts.

      Each Party hereby waives (i) any objection which it may have at any time to the venue of the proceedings in any such court, (ii) any claim that such proceedings have been brought in an inconvenient forum and (iii) the right to object, with respect to such proceedings, that such court does not have any jurisdiction over such Party. IN ANY CONTROVERSY OR CLAIM, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH HEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, ALL PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY.

    • Relationship of the Parties. Azurity engages Supplier only for the purposes and to the extent set forth in this Purchase Order and, accordingly, Supplier shall not be considered a partner, co-venturer, agent, employee, or representative of Azurity, but shall remain in all respects an independent contractor, including for purposes of the Occupational Safety and Health Act or state equivalent. Neither Azurity nor Supplier shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract, or otherwise to assume any obligation or responsibility in the name of or on behalf of the other party. Neither Azurity nor Supplier shall be deemed a joint employer of the other’s employees, each party being responsible for any and all claims by its employees. Neither Party’s employees shall be deemed “leased” employees of the other for any purpose.
    • Assignment; Subcontracting. This Purchase Order or any right or obligation arising therefrom shall not be assigned or transferred by Supplier in the absence of Azurity’s prior written consent thereto and any purported assignment or transfer absent such consent shall be automatically deemed null and void. Supplier shall not delegate or subcontract any of its obligations or responsibilities under this Purchase Order to any third party (including to an affiliate of Supplier) without Azurity’s prior written permission. No delegation or subcontracting by Supplier hereunder shall relieve Supplier of any of its obligations or responsibilities under this Purchase Order and Supplier shall remain responsible for obligations, services and functions performed by its subcontractors to the same extent as if they were performed by Supplier.
    • Divestiture. Notwithstanding anything to the contrary contained in this Purchase Order, to the extent related to or arising in connection with a divestiture (whether by sale, spin-off, or similar transaction) by Azurity of all or any portion of a Azurity business or business unit (“a Divestiture”), Azurity may, without prior written notice to or consent of Supplier, without any penalty, and at no additional cost to Azurity or to any affiliate of Azurity or to the company or the group of companies resulting from such Divestiture (collectively, such companies, the “Resulting Companies”): (1) assign its rights and obligations under this Purchase Order, in whole or in part to one or more of the Resulting Companies, or (2) split and assign, in whole or in part, its rights and obligations under this Purchase Order to one or more of the Resulting Companies so as to retain the benefits of this Purchase Order for both Azurity and the applicable Resulting Compan(y)/(ies) following such Divestiture.

      From and after any partial assignment or split (i) the rights and obligations of Azurity hereunder shall be divided between Azurity and the Resulting Compan(y)/(ies) to whom such rights and obligations are transferred as specified by Azurity, such that all such rights and obligations related to the business of the applicable Resulting Compan(y)/(ies) shall be enforceable only by and against the applicable Resulting Compan(y)/(ies), and all other such rights and obligations shall be enforceable only by and against Azurity and (ii) to the extent this Purchase Order contains any volume-based pricing or discounts in favor of Azurity or minimum purchase thresholds, any purchases by Azurity and the applicable Resulting Compan(y)/(ies) hereunder shall be aggregated for purposes of determining the applicable pricing and discounts and whether any minimum threshold has been met. Supplier will work cooperatively with Azurity and the applicable Resulting Compan(y)/(ies) to ensure a smooth and orderly transition, including, to the extent requested by Azurity, entering into separate agreements with Azurity and the applicable Resulting Compan(y)/(ies) on substantially the same terms and conditions (as adjusted to take into account the nature of the separate contracts while maintaining the economic, business and other purposes of the Purchase Order).

      No term, condition or provision of this Purchase Order, whether express or implied, shall be construed to limit Azurity’s use of the Services for the benefit of Resulting Compan(y)/(ies) for up to two (2) years after a Divestiture, and Supplier shall not charge Azurity any additional fee of any kind whatsoever for such usage.

    • Force Majeure. No Party shall be liable for any failure to perform or any delays in performance, and no Party shall be deemed to be in breach or default of its obligations set forth in this Purchase Order, if, to the extent and for so long as, such failure or delay is due to any causes that are beyond its reasonable control and not to its acts or omissions, including, without limitation, such causes as acts of God, natural disasters, pandemic, flood, severe storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of government, war (whether or not declared), acts of terrorism, or other similar causes (“Force Majeure Event”). For clarity, raw material price increases, unavailability of raw materials, and labor disputes shall not be deemed a Force Majeure Event. In the event of a Force Majeure Event, the Party prevented from or delayed in performing shall promptly give notice to the other Party and shall use commercially reasonable efforts to avoid or minimize the delay. The Party affected by the other Party’s delay may elect to: (a) suspend performance and extend the time for performance for the duration of the Force Majeure Event, or (b) cancel all or any part of the unperformed part of this Purchase Order.
    • Notice. All notices and other communications required hereunder shall be in writing and shall be deemed to have been given: (i) when delivered, if delivered personally to the intended recipient; (ii) when received by the addressee, if sent by an internationally recognized overnight courier services; (iii) on the date sent by facsimile (with verification of transmission) or email (with confirmation of receipt of the email and any attachments; or (iv) on the fifth (5th) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Azurity at the following address:
       
      Azurity Pharmaceuticals, Inc.
      8 Cabot Road, Suite 200
      Woburn, MA 01801
      Email: Legal@Azurity.com
       
      Please include Supplier’s name and PO number on the outside of the envelope.
    • Severability. If and solely to the extent that any court or tribunal of competent jurisdiction holds any provision of this Purchase Order to be unenforceable in a final non-appealable order, such unenforceable provision shall be stricken and the remainder of this Purchase Order shall not be affected thereby. In such event, the parties shall in good faith attempt to replace any unenforceable provision of this Purchase Order with a provision that is enforceable and that comes as close as possible to expressing the intention of the original provision.
    • Waiver; Partial Invalidity. The failure of Azurity to insist in any instance upon strict performance by Supplier of any provision of this Purchase Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Purchase Order or any corresponding Agreement. If any provision of this Purchase Order shall be held illegal or unenforceable by any governmental authority having jurisdiction over this Purchase Order, the validity of the remaining portions shall not be affected thereby.
    • Headings. Headings are included herein for convenience of reference only, and shall not constitute a part of this Purchase Order or change the meaning of this Purchase Order.
    • Contact. Any questions with respect to this Purchase Order Terms and Conditions should be directed to contracts@azurity.com. Please include Supplier’s name and PO number, in established, in email.
[End of Purchase Order Terms and Conditions]