Purchase Order Terms and Conditions

These terms (“Terms”) are incorporated in any purchase order (“Order”) for goods and other deliverables (referred to as “Goods”) and services (“Services”) issued by Excel Scientific LLC, a Delaware limited liability company (“Excel”), to the supplier providing the Goods and/or Services identified in that Order (“Seller”), except to the extent any Terms conflict with a written agreement between Excel and Seller (the “Parties”), or other written terms Excel has provided to Seller, that specifically cover that transaction.

1. SCOPE. Seller has accepted an Order (including these Terms) if Seller gives a verbal, written or electronic acknowledgment of, or initiates performance under, that Order.  By accepting an Order, Seller’s acceptance is limited to the Order’s terms (which include these Terms).  No additional or conflicting term in any Seller acknowledgment, invoice, bid, proposal or other documentation is binding on Excel, unless Excel specifically agreed to it in writing.  All Goods and Services will be delivered to Excel in strict conformance with any packaging, product and/or service standards, specifications and other requirements provided by Excel or approved in writing by Excel (the “Requirements”).
2. DELIVERY. Unless otherwise stated in the Order, all Goods will be shipped freight collect or freight prepaid; provided that Goods shipped internationally are sold FCA (Incoterms 2010) destination.  Seller will deliver all Goods and Services within the time period stated in the Order, unless Excel specifies a longer, or the Parties agree to a shorter, time period.  Seller will make no charge for any packing, crating, storage, insurance, shipping or delivery expense, unless authorized in the Order.  Seller will pay any excess costs due to failure to follow Excel’s shipping instructions.  If Seller delivers any Goods amount other than that stated in the Order without Excel’s prior written consent, Excel may return any of that delivery, at Seller’s expense.  Excel’s determination of the Goods’ count and weight is conclusive, unless Seller encloses a packing slip stating a different amount.  Title and risk of loss passes to Excel upon delivery of the Goods at the address specified in the Order.  TIME IS OF THE ESSENCE FOR ALL ORDERS.
3. PRICES AND PAYMENT. Goods and Services will be delivered to Excel for the price stated in the Order.  Unless the Order states different payment terms, payments are net thirty (30) days to be paid in United States dollars.  Excel’s payments may be adjusted for Seller’s errors, defects or non-compliance with the Order (including these Terms).  Each invoice must relate to only one Order, and be issued and dated no earlier than the date of delivery of the Goods and Services and within thirty (30) days from such delivery date.  Each Seller invoice and all related documents (such as packaging lists, bills of lading, freight bills and correspondence) must include:  (a) Order number; (b) applicable Order line item number(s) and unit of measure; and (c) Excel’s identification number (if provided by Excel).
4. ORDER CHANGE, SUSPENSION OR CANCELLATION.
   • Excel may change an Order by giving electronic notice to Seller prior to shipment of the applicable Goods or performance of the Services. If any Order change causes an adjustment in price or delivery date, the Parties will make an equitable adjustment and modify an Order accordingly, provided that Seller gives Excel notice of that adjustment claim within five (5) business days after receipt of Excel’s Order change notice.  Seller will suspend performance and resume performance, as directed by Excel.  If any Order suspension causes an adjustment in price, the Parties will make an equitable adjustment and modify an Order accordingly, provided that Seller gives Excel notice of that adjustment claim within five (5) business days after receipt of Excel’s Order suspension notice.
   • Excel may cancel an Order, without cause, at any time by electronic or written notice to Seller, but if Excel’s notice of cancellation is issued less than five (5) business days prior to a scheduled Goods delivery date or Services performance date, then Seller will be entitled to reimbursement for: (a) if Goods, any unique raw materials that cannot be returned to Seller’s supplier or sold to other Seller customer(s) and are necessary to provide those Goods due on that delivery date; or (b) if Services, the fees for those Services completed prior to the termination and Seller’s actual, out-of-pocket expenses paid to third parties that are not refundable and were reasonably necessary to provide those Services.  If Seller fails to comply with all of an Order’s Terms or admits its inability to meet its financial obligations, or it otherwise becomes apparent that Seller will not be able to fulfill its obligations under that Order due to Unavoidable Delay or other cause, then Excel may cancel an Order at any time by electronic or written notice to Seller without any liability of any kind to Seller, in addition to any other legal or equitable remedies Excel may have.
   • Seller shall not terminate any Order or these Terms unless Excel is in material breach of these terms, Seller has notified Excel in writing of such breach and Excel has not cured such breach within a reasonable time (but in any event not less than 60 days) after receiving such written notification.
5. TRADEMARKS. Seller will use an Excel trademark, tradename, or corporate logo (“Excel Mark”) only if required by the Requirements.  Seller will, at Excel’s direction, return to Excel or destroy all materials containing an Excel Mark.  While Seller is providing Goods and/or Services for Excel and at any time thereafter, Seller will not use Excel’s name or an Excel Mark in any manner, including promotional or advertising materials, or otherwise assert affiliation with Excel or an Excel affiliate, except with Excel’s prior written consent in each instance.
6. Excel MATERIAL & Excel EQUIPMENT. Excel owns any materials Excel provides to Seller, including, without limitation, raw materials, databases, or documents (“Excel Material”) and any tooling or other equipment that Excel provides to Seller or for which Excel reimburses Seller (“Excel Equipment”).  Seller authorizes Excel to file UCC financing statements and other documentation without Seller’s signature to acknowledge Excel’s ownership of these items.  Seller will not sell, pledge, transfer or remove from Seller’s facility any Excel Material or Excel Equipment.  Seller will use all Excel Material and Excel Equipment solely to perform its obligations under Orders and for no other purpose.  Seller will not alter any Excel Equipment.  Seller will use its best efforts to maintain the security and confidentiality of all Excel Material and Excel Equipment.  Seller has all risk of loss or damage to Excel Material and Excel Equipment, and will, at Excel’s request, immediately restore or replace any damaged or lost Excel Equipment or Excel Material with an equivalent item.  Promptly on Excel’s request, Seller will return to Excel all Excel Equipment and unused Excel Material in their original condition, except for reasonable wear, with Excel liable only for crating and shipping costs.  Seller will maintain all Excel Equipment in a safe and proper condition and indemnify Excel for, and defend it against, all claims arising out of Seller’s use of Excel Equipment.  If the Parties establish Excel Material loss allowances, Seller will reimburse Excel for any excess losses, at Excel’s delivered cost to Seller.  Seller will inspect Excel Material that will be incorporated into Goods and promptly inform Excel of any non-compliance with the Requirements.
7. WARRANTIES & REMEDIES.
   • In addition to all implied and express warranties available under the Uniform Commercial Code (“UCC”) and/or these Terms, Seller warrants that: (a) all Goods and Services will be free from any encumbrance and conform to all Requirements and the applicable Order; (b) all Goods will be without any defect in design (except to the extent designed by Excel), manufacture, processing, materials and workmanship; and (c) all Goods will be made or processed, and all Services will be performed, in compliance with all laws applicable to Seller and its business in accordance with Section 8.  Seller also warrants that:  (x) Seller has the expertise and resources to perform its obligations under any Order (including these Terms); (y) no Good or Service infringes on any third party’s intellectual property rights; and (z) Seller has no third-party obligations that conflict in any way with Seller’s obligations under these Terms.
   • In addition to all available remedies, Excel may reject any Goods or Services not meeting Seller’s warranties, and: (a) obtain substitutes and offset, or require Seller to reimburse Excel for, all additional costs associated with the substitutes; or (b) require Seller, at Excel’s option, to either replace the affected Goods or re-perform the affected Services without charge, or to reimburse Excel that Good’s price, plus any Excel Material’s delivered cost, or that Service’s price.  Excel may, but is not obligated to, inspect or test Goods and Services at Excel’s premises, Seller’s premises or those of any Seller subcontractor performing under an Order.  Excel’s acceptance of delivery, inspection or payment for any Good or Service does not waive any of Seller’s warranties or other obligations.  Seller will use its best efforts to assist Excel in investigation of, and corrective action for, Excel customer complaints related to the Goods and/or Services.
8. COMPLIANCE WITH LAWS & SUPPLIER RESPONSIBILITY.
   • Seller shall comply with all applicable laws, regulations and ordinances.
   • Seller warrants that all Seller employees, agents and subcontractors (“Seller Personnel”) performing any of Seller’s obligations under an Order will have employment authorization that complies with all applicable laws. On Excel’s request, Seller will provide Excel with all documentation and information Excel requires to conduct an export control license assessment relating to Seller Personnel.  If Excel determines that an export license is needed for certain Seller Personnel, Excel may, in its discretion, pursue that export license or instruct Seller not to use that Seller Personnel to perform Seller’s obligations under an Order.
   • Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.  Excel may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
   • Seller will comply with applicable national and international anti-bribery rules, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and applicable EU, OECD and Council of Europe anti-bribery rules. Seller will not offer, make, promise to make, or authorize the making of any gift or payment of money or anything of value either directly or indirectly for purposes of (a) influencing any act or decision of any government official or political party (or candidate thereof) (collectively, “Officials”); (b) inducing an Official to do or omit to do any act in violation of the lawful duty of that Official; or (c) inducing an Official to use influence with a non-U.S. government or instrumentality to facilitate Seller’s performance of its obligations under any Order.  Seller and its affiliates must at all times keep complete and accurate books and records.  All records and information that Seller provides to Excel pertaining to the performance of each Order must be complete and accurate.
9. CONFIDENTIAL INFORMATION.
   • The term: (a) “products” as used only in this Section 9 means all products manufactured or sold by or for Excel or services performed for Excel, including the Goods and Services; and (b) “Excel Confidential Information” means information or tangible materials, whether or not designated by Excel as confidential, pertaining to:  (i) product development, design, formulations, composition, research and development, or specifications; (ii) product manufacturing techniques, rates or quantities; (iii) equipment used to make products; (iv) any other aspects of Excel’s business relating to products and services, including without limitation marketing, sales, customers and non-public financial data; (v) all Orders placed by Excel; and (vi) the Parties’ relationship.
   • Seller will: (a) keep all Excel Confidential Information confidential; (b) use Excel Confidential Information only as necessary to perform Seller’s obligations under the Order; and (c) ensure that its employees, agents and Excel-approved subcontractors abide by these confidentiality obligations.  If Seller receives any tangible materials constituting Excel Confidential Information, then Seller will return those to Excel, on Excel’s request or at the end of the applicable Order.  Excel Confidential Information does not include information that is:  (x) available to the public in any publication; (y) known to Seller prior to its receipt from Excel as evidenced by Seller’s written records; or (z) available to Seller from another source without breach of any agreement or violation of law.  If required by judicial or administrative process to disclose Excel Confidential Information, Seller agrees to promptly give Excel notice, allow Excel reasonable time to oppose such process, and seek to have the third party treat the information confidentially to the extent legally permissible.
10. PERSONAL INFORMATION. “Personal Information” means information about a particular individual that, on its own or in combination with other information, identifies an individual, in any form and any media.  Seller may access, collect, or process Personal Information during its performance under an Order.  Seller will keep all Personal Information confidential, use it only as necessary to perform Seller’s obligations under an Order, and promptly notify Excel of any judicial process that might require its disclosure.  Seller will, at Excel’s option, either return or destroy all Personal Information on Excel’s request.  In addition, Seller will:  (a) create, obtain, process and use Personal Information only in compliance with all applicable laws; (b) restrict access to Personal Information to only those Seller employees as is necessary to perform Seller’s obligations under an Order; (c) ensure that all Seller employees with such access have obligations as strict as Seller’s obligations under this Section 10 and have been informed of those obligations; (d) use security measures to protect all Personal Information from unauthorized access, use, disclosure, alteration or destruction; (e) maintain any records that include Personal Information in accurate and current form; (f) on Excel’s request, provide reasonable assistance with updating, correcting, verifying, and providing individuals with access to their Personal Information related to an Order; and (g) promptly notify Excel if any unauthorized person accesses, uses, or discloses any Personal Information related to an Order, or if any individual requests access to, correction of, or revokes consent for, Personal Information related to an Order.
11. PRODUCTION DISCONTINUATION. Prior to Seller’s discontinuing the manufacture or sale of any Good identified in any Order issued by Excel during the preceding twelve (12) months:  (a) Seller will fill all current Orders for that Good; (b) Seller will give Excel at least six (6) months’ prior written notice of that discontinuation; and (c) Excel will have the right to issue a last-time buy Order for, and Seller will deliver, that discontinued Good at its then-current price in an amount up to Excel’s largest twelve (12)-month purchase volume (based on Orders issued).
12. INDEMNIFICATION & INSURANCE. Seller will indemnify, defend and hold harmless Excel, its affiliates and their successors, assigns, officers, directors, employees and agents for, from and against any claim, liability, loss, damage, lien, judgment, duty, fine, civil penalty and cost, including attorneys’ fees and litigation expenses, arising out of:  (a) Seller’s failure to comply with any of its obligations under an Order (including these Terms), which may include, without limitation, those relating to a resulting Good recall or other reasonable action Excel takes regarding any such failure; and (b) claims arising out of handling, packaging, labeling, storage, treatment, removal, transportation, and disposal of any waste material at any Seller site or related to the Goods under any laws, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601 et seq. as amended, known as “CERCLA”), the Hazardous Materials Transportation Act (49 U.S.C. Sections 5101 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq., known as “RCRA”), or any other current or future law of similar effect.  These indemnities do not affect any other Excel remedies.  Seller will maintain liability, property damage, and other insurance to protect Excel from all the foregoing risks, and will, on request, supply certificates evidencing this coverage.
13. ENGINEERING CHANGE. An “Engineering Change” is a mechanical (including, without limitation, any changes to production tooling or dimensional specifications), electrical, material, process (including, without limitation, any process of inspection), formulation, or location change that could affect the Good’s safety, performance, cost, reliability, appearance, materials (including, without limitation, source of supply), or composition.  Unless the Parties have otherwise agreed to a more stringent communication process, either Party may request an Engineering Change, but it will occur only if the Parties agree in writing as to the implementation date, any resulting impact to the Requirements, cost savings, or other outcomes.
14. UNAVOIDABLE DELAY. If a Party cannot perform its obligations, in whole or in part, under an Order as a result of civil or military authority, war, flood, fire, epidemic, or other condition or cause beyond its reasonable control and not related to its fault or negligence (an “Unavoidable Delay”), that Party will be excused from that performance during the Unavoidable Delay to the extent that performance is prevented or delayed.  If Seller has an Unavoidable Delay, Excel may modify or terminate any Orders on notice to Seller without liability to Seller.  Unavoidable Delay will not include:  (a) any labor dispute; (b) non-performance by Seller’s supplier; or (c) any delay preventable by Seller moving the affected Goods to an alternate Excel-approved Seller facility.
15. SELLER WAIVER OF DAMAGES. Excel WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SELLER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS) IN ANY WAY RELATED TO GOODS, SERVICES, AN ORDER, OR ITS TERMINATION, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE DAMAGES ARE SOUGHT.
16. DISPUTE RESOLUTION. Any claim or dispute arising from, or relating to, a Good, Service, or an Order (including these Terms):  (a) will be governed by the laws of the State of Delaware, without regard to its conflicts of law provisions; and (b) must only be litigated in a federal or state court of competent jurisdiction in Los Angeles County, California.  All negotiations will be conducted in English, and all documents, including all Orders, will be written in English.
17. NOTICES. Unless otherwise stated in these Terms, any permitted or required notice must be in writing and personally delivered, including via any internationally recognized overnight service:  (a) to Excel at:  Excel Scientific LLC, 18350 George Blvd., Victorville, CA 92394, Attn: Chief Executive Officer; and (b) to Seller at the address to which the applicable Order was sent.  Notice of a Party’s address change will be given as stated above.
18. GENERAL TERMS.  The relationship between the Parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.  These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.  If any term or provision of these Terms are invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.  Reference in these Terms to laws includes all federal, state, provincial, regional, territorial and local laws, statutes, regulations, rules, ordinances and directives of any government.  Each Order (including these Terms) is the Parties’ final and complete agreement, and it terminates all their prior written or oral agreements and understandings as to that Order’s subject matter except no Order is intended to terminate or supersede any existing confidentiality or intellectual property agreement by the Parties or any written agreement between the Parties that specifically covers the Order or other written terms Excel has provided to Seller, that specifically covers that Order.  Any terms which, by their nature, extend beyond the expiration or termination of these Terms will survive the expiration or termination of these Terms (including, without limitation, Sections 5, 7, 9, 12, 17 and 18.  All these Terms including, without limitation, those relating to safety, regulatory compliance, warranty, insurance, indemnification and confidentiality, will survive an Order’s end and be fully enforceable thereafter to the full extent necessary to protect the Party in whose favor they run.  A Party’s failure(s) to insist on strict performance, or to exercise its rights, under an Order, does not waive subsequent compliance with that Order.  All Excel rights and remedies under an Order are cumulative, and in addition to any other rights and remedies provided in law or equity.  Seller may not assign an Order or any of its rights or obligations under an Order, including, without limitation, any subcontracting (“Assignment”), without Excel’s prior written consent.  No purported Assignment by Seller is binding on Excel without its written consent.  No Excel consent to a Seller Assignment relieves Seller of any obligations under an Order, and Seller will ensure that any full assignee assumes all of Seller’s obligations under these Terms and that any subcontractor is bound by terms as stringent as these Terms.  Except as otherwise provided in these Terms, an Order may only be modified by a written document signed by the Parties’ authorized representatives.