1. BINDING CONTRACT. These standard purchase terms and conditions (“Terms”), inclusive of the first page and any similarly formatted subsequent page (together with the Terms, the “Order”), are the only Terms applicable to any sale of products or services rendered to the buyer entity (“Buyer”) and invoiced by the seller entity (“Seller”). The Order constitutes Buyer’s offer to purchase from Seller, and not an acceptance of any offer to sell, the products or services described in this Order (“Products” or “Services”). Failure to object to this Order within the earlier of (a) five (5) days of receipt of this Order, or (b) shipment of any Product ordered (whether or not Seller has acknowledged this Order) or commencement of Services shall constitute Seller ‘s acceptance of this Order in its entirety. ANY ACCEPTANCE OF THIS ORDER IS LIMITED TO AND CONDITIONED UPON ACCEPTANCE OF THE EXPRESS TERMS AND CONDITIONS SET FORTH HEREIN (INCLUDING WITHOUT LIMITATION THOSE CONTAINED ON THE FIRST PAGE) AND, UPON ACCEPTANCE, SHIPMENT OF PRODUCTS, OR COMMENCMENT OF SERVICES, THIS ORDER BECOMES A BINDING CONTRACT SUBJECT TO ALL SUCH TERMS AND CONDITIONS. Absent a specific written agreement between Buyer and Seller or as otherwise provided herein, no revision, addition, alteration, or deletion may be made to this Order, and any inconsistent or conflicting terms or conditions on Seller’s acceptance, billing or any other forms are hereby objected to, and rejected by, Buyer and shall not be effective. If the parties have entered into a signed written agreement relating to the subject matter of this Order, and there is a conflict between the signed written agreement and this Order, the terms and conditions of the signed written agreement shall control.
2. PURCHASE & SALE. This Order shall be acknowledged in writing and sent via electronic mail to Seller within three (3) business days, at such address as is provided by Buyer. This Order shall not be fulfilled at volumes, quantities, rates, prices (or fees with respect to Services), amounts, dates, locations, or in accordance with any other specification that is different than expressed herein. No Order shall constitute or be construed as an obligation of Buyer to purchase any minimum volume, quantity, amount, or all or any portion of the Product, Services or Deliverables, from Seller. Notwithstanding any contrary provision herein, a maximum of +5% variance in quantity shall not constitute material breach of an Order. No Order is valid unless issued by Buyer on its official, electronic or otherwise, generated order form addressed to Seller with Buyer’s order number. If the price or fee is omitted, Product shall be billed at the price or fee last quoted to Buyer, last paid by Buyer or at the prevailing market price, whichever is lower.
3. ORDER CHANGES. Buyer may at any time by written notice to Seller propose changes within the general scope of the Order. Should any such change increase or decrease the cost of, or time required for, the performance of the Order, an equitable adjustment may be requested by Buyer or Seller in the price, the delivery schedule, or both. Buyer will not be bound by any such changes unless confirmed by Buyer in writing. Nothing in this clause shall relieve Seller from proceeding without delay in the performance of the Order as changed. As to any Product under this Order, Buyer may cancel this Order in whole or in part, and for any reason at any time prior to shipment of all Product ordered hereunder upon written notice to Seller. As to any Services or Deliverables under this Order, see Section 7 hereof for provisions relating to termination.
4. PRICES. TAXES. SELLER REPRESENTS THAT THE PRICE(S) FOR ANY PRODUCT IS THE LOWEST PRICE AVAILABLE TO OTHER BUYERS PURCHASING SUBTANTIALLY SIMILAR QUANTITIES AND/OR THAT THE FEES FOR ANY SERVICES FOR ARE THE LOWEST FEES AVAILABLE WITHIN THE SAME CLASS OR CATEGORY TO OTHER BUYERS WITH RESPECT TO SUBSTANTIALLY SIMILAR SERVICES. Seller shall promptly inform
Buyer of any market or other price reduction with respect to Product and if such reduction occurs prior to Buyer´s acceptance of delivery, apply such reduction as a credit or offset of any amount owed by Buyer. All prices payable by Buyer for the Product(s) shall be deemed to include the cost of packaging, delivery, and taxes not expressly imposed by law on Buyer. Seller shall be responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Seller´s performance of Services and receipt of fees under this Order.
5. INVOICES. PAYMENT. All invoices shall be sent to Buyer, Attention Buyer´s Accounts Payable Department, at such address as is provided by the Accounts Payable Department. Any invoices issued by Seller with respect to this Order shall include this Order´s number. Except as otherwise specified on the front of this Order, payment shall be tendered by wire transfer or other Buyer-designated method of payment within sixty (60) days following the date under clauses (A)(i) – (iii) or (B)(i) – (iii) as applicable. Payment is made when Buyer´s check is mailed or when an electronic payment is initiated. Seller agrees to invoice Buyer no later than one hundred and twenty (120) days after shipment of Products or delivery of Services under this Order. Buyer shall not be obligated to make payment against invoices submitted after such period. Buyer may set off any claim or charge it may have against Seller against any amount payable under this Order. Payment does not constitute acceptance of Product or Services and any Deliverables or relieve Seller of any obligations herein and shall not prejudice Buyer’s right thereafter to contest any invoice or challenge or reject any Products or Services and any Deliverables that do not conform strictly to the Order. To the extent this Order is for: (A) Product, the invoice issued by Seller with respect to this Order shall specify what portion of the total amount to be paid relates to sale, use or other similar taxes. Payment terms for Product shall be as set forth on the front of this Order and shall run from, and applicable prompt payment discount shall be calculated from, the last to occur of: (i) the scheduled delivery date; (ii) the date of actual delivery; or (iii) the date an original invoice containing this Order number is received by Buyer. Buyer shall not be obligated to make payment against invoices submitted after such period. Buyer may set off any claim or charge it may have against Seller against any amount payable under this Order; or (B) Services, Buyer shall pay Seller the fees and reasonable expenses set forth on the front side of this Order as full and complete compensation for the Services rendered pursuant to this Order. To the extent expenses are to be paid pursuant to this Order: (i) Seller may not incur any such expenses in excess of amounts approved in advance by Buyer; (ii) only expenses that would qualify for reimbursement under Buyer´s Travel & Expense Policy will be reimbursed; and (iii) Seller shall promptly invoice Buyer for such expenses and shall attach to such invoices copies of all receipts or other documentation requested by Buyer for all expenses in excess of $50.00. Seller shall invoice Buyer for the Services provided as set forth on the front of this Order, or if not specified therein, on a monthly basis in arrears. Payment terms shall be as set forth on the front of this Order and shall run from, and applicable prompt payment discount shall be calculated from, the last to occur of: (i) the scheduled Service date; (ii) the last date Services and any Deliverables are actually delivered; or (iii) the date an original invoice containing this Order number is received by Buyer. Except as otherwise specified on the front of this Order, all invoices and payment due under this Order shall be paid in U.S. Dollars. If payment is stated in foreign currency or invoice is received in foreign currency, conversion of foreign currency to U.S. Dollars will be made at the conversion rate existing in the United States (as reported in the Wall Street Journal) on the date payment is issued.
6. PACKAGING; SHIPPING; DELIVERY. To the extent any Product is described in this Order, the following provisions shall apply. All shipments will be packed in a manner that follows good commercial practice, is in compliance with all applicable transportation regulations, is adequate to ensure safe and undamaged arrival, assures the lowest transportation costs, meets carrier´s tariff requirements and satisfies any routing specifications of Buyer, a copy of which Seller hereby acknowledges receipt. Buyer is not responsible for any charge for packing, boxing, storage or cartage. Any expense incurred by Buyer as a result of improper preservation, packing, packaging or marking shall be reimbursed by Seller. Except as otherwise specified on the front of the Order, delivery shall be made Ex Works shipping site (“Destination”) in accordance with the terms, choice of carrier and routing specifications as directed by Buyer that Buyer may revise at any time prior to shipment. Incoterms 2020 or the then-prevailing Incoterms in force at the time of the Order shall apply, save that, to the extent there is any inconsistency or conflict between the applicable Incoterms and these Terms and/or Order, these Terms and/or Order shall prevail. Time is of the essence in respect of Seller’s obligation to deliver. The Seller shall deliver the Products to the Destination by the due date(s) stated on the Order or as otherwise agreed in writing by Buyer (“Delivery Date(s)”). Seller shall promptly notify Buyer when it anticipates or reasonably should anticipate that delivery will not be made by the Delivery Date(s) and obtain prior approval for such shipment. Notwithstanding any contrary provision, if Seller fails to deliver the Products to the Destination by the Delivery Date(s), Buyer may, without prejudice to any other rights it may have under the Order or otherwise, terminate the Order, without liability to Seller. Seller warrants that upon the earlier of payment for the Products or delivery at the Destination, as the case may be, Seller shall convey to Buyer good and marketable title to all Products free of any liens or encumbrances of any kind whatsoever. Risk of loss passes upon Buyer’s acceptance of the Products as conforming to the Order. Buyer shall not be obliged to buy or pay for, and Buyer or its designated representative may at any time after delivery, reject all or any part of the Products that Buyer determines does not conform to the Order. Seller shall retain or reacquire title to, and bear all risks of loss of, such nonconforming Products, and shall at its own expense be responsible for the collection, return, or disposal thereof according to Buyer’s instructions. Buyer shall not be responsible for any pallets, containers, or other materials used in the delivery of the Products and Seller shall indemnify Buyer against any claims, damages, and liabilities arising from the use or disposition of the same. Seller shall package the Product per Buyer’s specifications and in compliance with applicable laws, rules, and regulations.
7. SERVICES. To the extent any Services are described in this Order, the following provisions shall apply: (a) Seller shall render to Buyer the Services in accordance with the highest industry standards, in compliance with all applicable laws, and in accordance with all terms and conditions of this Order. Time is of the essence with respect to the performance of the Services. If Seller anticipates a delay or an actual delay in performance occurs, Seller shall immediately notify Buyer, and upon receipt, Buyer may, at its sole discretion, either approve a revised schedule, or by written notice, terminate this Order in whole or in part, except for the Services delivered in accordance with these terms and conditions prior to the date on which notice of termination is given to Seller. If any actions not specifically described in this Order are required for the satisfaction of performance and completion of the Services, they shall be deemed to be included within the scope of the Services to the same extent as if specifically described in these Terms. Buyer and Seller shall cooperate, identify, agree, and implement such further actions, orders, or agreements as may be reasonably requested by Buyer relating to the Services. Seller may not subcontract or otherwise delegate its obligations under this Order without Buyer’s prior written consent. Seller and its employees, agents, subcontractors, and representatives shall comply with Buyer’s safety, security, and other policies and procedures if and when they are at Buyer’s facilities to perform the Services. Subject to compliance with Seller’s obligations hereunder, Seller shall retain the sole control and discretion to determine the methods by which Seller performs the Services and the places at which, the equipment and supplies with which, and the hours during which such Services are to be rendered; and (b) if in connection with performing the Services, Seller will be creating for Buyer or providing to Buyer (i) any ideas, inventions, software (other than pre-existing software generally sold to Seller’s customers “Commercial Software”), plans, or proposals that are conceived and/or reduced to practice for Buyer in connection with such Services whether patentable or not; or (ii) any trademarks, service marks, trade names, logos, or slogans created by Seller for Buyer; or (iii) any artwork, graphics, photographs, images, digital and/or audio clips, and written materials created by Seller as original works for Buyer, which shall to the greatest extent possible, be considered works made for hire for Buyer within the meaning of Title 17 of the United States Code (collectively, the “Deliverables”). Seller hereby assigns and shall cause its personnel to assign, to Buyer, its successors, and assigns any and all right, title, or interest of every kind and character Seller or its personnel may have in the Deliverables, including any patent rights, trademark rights, copyrights, and/or other intellectual property rights pertaining thereto, and the right to reproduce same, modify same, make improvements, and make derivative works regarding same, for all purposes and in all media now known or hereafter devised, throughout the world free and clear of any and all claims, liens, rights, or retention thereof. Seller agrees to use its best efforts to produce the Deliverables in accordance with any delivery schedule that may be set forth on the front of this Order, and to follow any specifications Buyer may give Seller regarding the Deliverables. Seller shall provide Buyer with intermediate versions and other materials requested by Buyer from time to time to demonstrate Seller‘s progress and the quality and status of Seller’s work and the Deliverables shall be delivered in a condition that is ready for immediate use in the medium(s) set forth on the front of this Order. No third-party proprietary information may be used in the development of, or incorporated into, the Deliverables without the express written consent of Buyer. The Deliverables shall comply with the requirements of this Order. Seller agrees to cooperate with Buyer and to assist Buyer in protecting the rights granted to Buyer pursuant hereto, including by promptly executing and delivering to Buyer, and causing its personnel to promptly execute and deliver to Buyer, any documents reasonably requested by Buyer to perfect or evidence Buyer ́s rights in the Deliverables, whether by patent, copyright, trade secret, or otherwise at no additional cost to Buyer. To the extent, if any, that Seller delivers any Commercial Software to Buyer pursuant to this Order, the terms of such license to such Software shall be set forth on the front of this Order. Seller agrees during the term of this Order not to accept work, enter into any order or agreement, or accept any obligation that is inconsistent or incompatible with Seller ‘s obligations under this Order or the scope of Services rendered for Buyer. Seller represents and warrants that, to the best of its knowledge, there is no other existing agreement or duty on Seller’s part that is inconsistent with this Order. Seller shall reveal to Buyer in writing any and all financial or other interests it, or any of its employees assigned to provide the Services hereunder, may have with respect to any Products, Services, or any provider thereof, that Seller may recommend to Buyer, such notice to be provided concurrent with any such recommendation.
8. QUALITY ASSURANCE & INSPECTIONS. Seller shall hold and maintain in good standing all required and applicable authorizations and permits to manufacture, supply, and transport the Products or provide the Services. Seller must inform Buyer promptly in the event any such authorization or permit is not obtained in a timely manner or is withdrawn or is threatened to be withdrawn. Buyer or its designated representatives shall have the right from time to time, during business hours, after reasonable notice to the Seller to inspect and test any and/or all Products, Services and/or Deliverables, at the premises of Seller or any approved subcontractor engaged in the performance of this Order, or upon or after receipt, at Buyer’s election, and to accept such Products or Deliverables in writing or to reject for full credit or refund of the purchase price of such Products or fees for such Services and/or Deliverables that do not conform to the Order or any changes thereto under Section 3. Buyer may alternatively require Seller to replace, correct or repair such rejected Products, Services and/or Deliverables at Seller´s cost and expense and in the case of Services, to require that Seller re-perform or correct such Services at Seller´s cost and expense. If Buyer or its authorized representatives conducts an inspection on the premises of Seller or any such subcontractor or testing, Seller shall provide or require its approved subcontractor to provide, at Seller´s cost and expense, all facilities, information and assistance necessary or advisable for the performance of such inspection or testing. Buyer´s right to reject Products, Services or Deliverables shall apply to any Products, Services or Deliverables when found to be defective (which may be based on the results of Buyer´s inspection and tests) at any time and notwithstanding any prior payment. In addition, Seller shall pay Buyer for all costs incurred and damages sustained by Buyer as a result of such defective Products and/or Deliverables, including, without limitation, other material and labor costs, inspection, unpacking, repacking, freight, storage, shipping and handling charges. Buyer´s failure to specify any defect or nonconformance in rejecting any or all of the Products, Services and/or Deliverables shall not prevent Buyer from relying on such defect or non-conformance to establish a failure of the Products, Services and/or Deliverables to conform to the applicable specifications or to otherwise justify rejection hereunder. Payment for Products or Services, or use of a portion of such Products or Deliverables for purposes of inspection or testing, shall not constitute acceptance thereof. Failure of Seller to object to a rejection of Products, Deliverables or Services by Buyer within five (5) business days of such rejection shall constitute Seller´s acceptance of Buyer´s rejection and the reasons therefore. Nothing contained in this Order shall relieve Seller in any way from its obligation of independent testing, inspection and quality control, and neither such testing nor Buyer´s inspection shall limit Buyer´s rights or diminish any of Seller´s obligations hereunder.
9. WARRANTY. Seller and its employees, agents, brokers, contractors, subcontractors and representatives (collectively, “Seller Representatives”) shall comply with Buyer´s policies and procedures when they are at Buyer´s facilities. Seller represents, warrants and covenants to Buyer, its affiliates, parents, successors and assigns, and all distributors, sub-distributors, resellers, customers, dealers and users of Products, Deliverables and Commercial Software (“Buyer Parties”) that all Products, Deliverables and Commercial Software delivered hereunder: (i) have been manufactured, tested, produced, performed, packaged, labeled, invoiced, transported, sold, delivered and, if required, certified or registered in accordance with, and on the date of delivery will not be in violation of, and in all other respects shall comply with (a) Buyer´s specifications (if any), or if none, with Seller´s specifications, and (b) all applicable statutes, laws, ordinances, rules, regulations, standards, guidelines, judgments, orders, decrees, or rules of common law, or other governmental restriction or any similar form of decision of or determination by, any national, state, or local government, whether now or hereafter in effect (collectively, “Laws”), including without limitation Laws governing product safety, labor practices, labeling, packaging and the use of pesticides, hazardous substances and other chemicals, and human health and safety, such as California Proposition 65; (ii) shall conform to any samples submitted by Seller to Buyer; (iii) shall be, on the date of delivery, free from defects, of good quality and workmanship, merchantable and safe and fit any intended or reasonably foreseeable purpose, and the use of such Products or Deliverables for such purposes will not violate any applicable Law; and (iv) do not and will not infringe on any patents, trademarks, copyrights, service marks, trade secrets, intellectual property rights or other proprietary rights held by third parties. Seller also represents, warrants and covenants to the Buyer Parties that (i) Seller has the necessary right, title, and interest to provide Products, Services and Deliverables, and any Products and Deliverables hereunder will be free and clear of liens and encumbrances; (ii) any certifications, worksheets or other documents provided by Seller with respect to the Products, Services and Deliverables are true, correct, complete and accurate, (iii) Seller has the full power and authority to enter into this Order and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (iv) Seller has the right to grant the rights and assignments granted herein, without the need for any assignments, releases, consents, approvals, immunities or other rights not yet obtained; (v) the Services shall be performed in accordance with highest industry standards; (vi) each of Seller´s employees and contractors (if any) involved in the development of the Deliverables have executed (or, prior to any such involvement shall execute) a written agreement with Seller in which such persons assign to Seller all right, title and interest in and to the Deliverables in order that Seller may fully grant the rights and assignments granted herein, without the need for any assignments, releases, consents, approvals, immunities or other rights not yet obtained; (vii) the Services shall be performed in accordance with highest industry standards; and (viii) each of Seller´s employees and contractors (if any) involved in the development of the Deliverables have executed (or, prior to any such involvement shall execute) a written agreement with Seller in which such persons assign to Seller all right, title and interest in and to the Deliverables in order that Seller may fully grant the rights to Buyer as provided herein. The foregoing representation, warranties and covenants shall be in addition to any implied warranties, and any representations, warranties or covenants made or granted by Seller to Buyer. Seller´s obligations under the foregoing representations, warranties or covenants shall not be affected by Buyer´s approval of any designs or materials furnished by Seller, or Buyer´s inspection, test, acceptance or use of Products or Deliverables. In addition to any other rights or remedies hereunder, if any Products or Deliverables do not conform to the foregoing representations, warranties or covenants, Buyer may, at its option, return for a full credit or require Seller to replace, correct or repair, promptly upon request by Buyer and without expense to Buyer, any such non-conforming Products or Deliverables. If Seller fails to promptly so replace, correct or repair such Products or Deliverables after Buyer´s request, Buyer shall have the right to replace, correct or repair such Products or Deliverables at Seller´s cost and expense. If any Services do not conform to the foregoing representations, warranties or covenants, Buyer, may at its option, require Seller to refund all or a portion of the amounts paid hereunder for such Services or require Seller to re-perform such Services at Seller´s expense.
10. CONFIDENTIALITY. Any specifications, samples, designs, formulations, trade secrets, financial data, or other information that Buyer identifies as, or otherwise deems, confidential and discloses to Seller in connection with the Order shall remain the exclusive property of Buyer and shall, along with any information derived from the same, be kept confidential by Seller and its employees, representatives, and agents and shall not, without Buyer’s prior written consent, be disclosed to any third party or used except for purposes of the Order. Seller shall remain responsible for any breach of confidentiality obligations by its employees, representatives, and agents. Notwithstanding the foregoing, such information shall not be deemed confidential to the extent that Seller can demonstrate by written record that it was previously known by Seller, became generally available to the public through no fault of Seller, was disclosed to Seller by a third party without breach of any confidentiality obligation, or is specifically required to be disclosed by law or legal process. If Seller is required to disclose confidential information by law or legal process, Seller must give Buyer prior written notice as is reasonably practicable and reasonably assist Buyer in obtaining a protective order or other injunctive relief. In addition, Seller shall keep its relations with Buyer confidential, and shall make no use of Buyer’s corporate name or logo on any of Seller’s communication material or on any support, including websites, presentations, or paper documentation, except to the extent that Buyer consents in writing prior to such use.
11. DEFAULT. Seller shall be in default of this Order if Seller: (i) fails to comply with any of the terms and conditions of, or breaches any representation, warranty or covenant provided for in, this Order; (ii) Seller ceases to conduct its operations in the normal course of business, becomes insolvent, or makes an assignment for the benefit of its creditors; or (iii) a bankruptcy petition is filed by or with respect to Seller. If Seller defaults, Buyer may, in its sole discretion upon written notice to Seller: (a) withhold from any amount due Seller hereunder such amount as is required, in Buyer´s reasonable judgment, to protect Buyer from loss or damage; (b) immediately terminate this Order in whole or in part; and (c) exercise any other right or remedy provided for herein or by law. BUYER SHALL HAVE NO LIABILITY TO SELLER AS A RESULT OF TERMINATION FOR DEFAULT.
12. INSURANCE. Seller shall maintain, and shall cause approved subcontractors, brokers and distributors to maintain the following insurance policies with at least the listed minimum limits through an insurer having an AM Best Rating of A-, VII or better: (a) general liability for bodily injury/property damage, products liability/completed operations, personal injury/advertising injury, and contractual liability of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; workers’ compensation for statutory obligations imposed by laws of the State in which performance takes place; and (c) automobile liability for any auto, including all owned, hired, or non-owned autos of not less than $1,000,000 per occurrence combined single limit of bodily injury and property damage liability, or subject to Buyer’s prior written approval, adequate liability insurance to protect Seller or tangible or intangible property damage (including loss of use) that arises out of any act or omission of Seller. If the policies have a deductible or self-insured retention, Seller assumes all policy obligations as if the policy had first dollar coverage. The policies will waive rights of subrogation against Buyer. Seller will add Buyer as an additional insured on all policies except for the policies in (c) above on a primary and non-contributory basis. If a policy is “claims-made” policy, Seller shall extend the policy to cover any claims relating to these Terms. Upon request, Seller shall provide Buyer (Attn: Certificate of Insurance, Amyris, Inc. 5885 Hollis Street, Suite 100, Emeryville, CA 94608, United States) with a certificate of insurance evidencing the required coverages, including endorsements that waive the right of subrogation against Buyer and add Buyer as an additional insured. Seller must provide Buyer with at least 30 days’ notice of cancellation, non-renewal, or material change. Seller shall also provide Buyer with certified copies of the policies at Buyer’s request. Neither the requirements of Seller to carry and maintain insurance nor Buyer’s acceptance of evidence of insurance will in any manner limit the liabilities and obligations assumed by Seller under these Terms.
13. INDEMNITY. Seller shall indemnify, hold harmless and at each Buyer Party’s option, defend each of the Buyers Parties and their officers, directors, agents, employees and contractors from and against any and all demands, claims, actions, causes of action, losses, damages, liabilities, liens, judgments, costs and expenses of every type and nature (including, without limitation, attorneys’ fees and expert witness fees actually incurred or to be incurred) (collectively, “Claims”), foreseen or unforeseen, which actually or allegedly arise out of or in any manner relate to or result from: (i) any actual or alleged act or omission that constitutes or might constitute a breach by Seller of this Order or any representation, warranty or covenant contained herein; (ii) any injury to or death of any person, or property damage or economic loss, actually or allegedly resulting from or arising out of the handling, use of, or otherwise relating to the Products, the Services, the Deliverables or the performance of this Order; (iii) any recall of any Products or any goods produced using the Products, whether voluntary or involuntary, actually or allegedly arising out of or resulting from Products or any act or omission by any Seller Representatives; (iv) any actual or alleged infringement of any patents, trademarks, copyrights, service marks, trade secrets, intellectual property rights or other proprietary rights held by third parties; (v) any actual or alleged violation of any Laws set forth in Sections 9, 14 – 15, and 18 – 21 of this Order; or (vi) any actual or alleged negligence, errors, omissions, or misconduct by any Seller Representatives.
14. ENVIRONMENTAL, HEALTH AND SAFETY LAWS. For all potentially hazardous Products, the Seller shall submit information to Buyer which shall at a minimum provide the information necessary to comply with the environmental, health, and safety laws applying in the jurisdiction for which the Products are intended. Seller shall provide Buyer with a copy of each of its current and future revised Product labels, decals, and stencils (“Labels”) and Safety Data Sheets (“SDSs”) for each Product. Seller represents and warrants that the Labels and SDSs are (a) accurate, (b) adequate to fully advise those who come into contact with the Product of the safety requirements and hazards associated with the Product, and (c) in compliance with all industry standards and applicable laws, rules and regulations. Buyer has no obligation to review the accuracy or adequacy of the Labels or SDSs. Seller shall ensure that performance of Seller´s obligations under this Order complies will all applicable Laws relating to the indoor or outdoor environment, natural resources, or to the health, safety or welfare of natural persons affected by the environment, or to the release or disposal or threatened release or disposal of Hazardous Materials or Substances (as defined herein) into the indoor or outdoor environment including, without limitation, ambient air, soil, surface water, groundwater, sea water, wetlands, land or subsurface strata or otherwise relating to the use of Hazardous Materials or Substances or otherwise applicable to Hazardous Materials or Substances, whether now or hereafter in effect (collectively, “Environmental Laws”). A “Hazardous Material or Substance” shall mean any of the following: any chemicals, chemical mixtures, wastes or materials in solid, liquid or gaseous form, including but not limited to those that are now or hereafter become (i) defined or listed as, or included in the definition of, “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “pollutants” or terms of similar import under any Environmental Law, or (ii) prohibited, limited or regulated under any Environmental Law. Seller shall obtain and maintain all licenses, authorizations, certifications, and approvals required under any applicable Environmental Law. Seller shall not permit the unauthorized release or disposal of any Hazardous Material or Substance into the environment and, in the event of any such unauthorized release or disposal, shall, at its own expense and liability, promptly perform any investigation, study, sampling, testing, cleanup, removal, and remedial or other action necessary to remove and clean up any such Hazardous Material or Substance in accordance with the requirements of all applicable Environmental Laws. Subject to confidentiality or similar non-disclosure requirements, Seller shall promptly provide to Buyer, upon request, copies of all environmental reports or surveys received or developed by Seller pertaining to Seller´s compliance with applicable Environmental Laws as such Environmental Laws apply to this Order. Seller shall deliver the following notices to Buyer: (a) promptly upon obtaining knowledge of (1) any fact, circumstance, condition, or occurrence that could form the basis of any violation or alleged violation, of any Environmental Law arising with respect to this Order or (2) any Environmental Claim (as defined herein) with respect to this Order, a notice of either of the foregoing describing the same in reasonable detail and, together with such notice or as soon thereafter as possible, a description of the action that such person or entity has taken or proposes to take with respect thereto and, thereafter, from time to time such detailed reports with respect thereto as Buyer may reasonably request; and (b) promptly upon their becoming available, copies of all written communications with any government authority or other third party individual or entity relating to any Environmental Law or any of the foregoing arising out of this Order. An “Environmental Claim” shall mean any pending or threatened claim, administrative, regulatory or judicial action, suit, judgment or demand or other written communication by any other person or entity alleging or asserting of any person or entity´s liability for investigatory costs, cleanup costs, governmental response costs, damages to natural resources or other property, personal injuries or death, losses, fines or penalties arising out of, based on or resulting from (x) the presence, use, release or disposal or threatened release or disposal into the environment of any Hazardous Material or Substance at any location or (y) any fact, circumstance, condition, or occurrence forming the basis of any violation, or alleged violation, of any Environmental Law.
15. GOVERNMENT CONTRACTOR LAWS. Any provision which is required to be a part of this Order by virtue of any Law, including, without limitation, The Equal Employment Opportunity Clause and the Affirmative Action Clauses set forth in Executive Order #11246, as amended, the regulations at 41 CFR Parts 60-1 through 60-50, 38 U.S.C. §§ 4211-4212 (Vietnam Era Veterans Readjustment Assistance Act), Section 503 of the Rehabilitation Act of 1973, and the regulations at 41 CFR Parts 60-250 and 60-741, as each may be amended, is incorporated herein by specific reference. Seller represents and covenants that Products, Services and/or Deliverables to be furnished pursuant to this Order were or will be produced, or if applicable rendered, in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all applicable employment Laws. Seller agrees to submit all reports, certifications, and other documents required for compliance with the terms of this Section.
16. FORCE MAJEURE. A party is not liable for a failure to perform any of its obligations in so far as it proves all of the following: (i) that the failure was due to an impediment beyond its reasonable control; (ii) that it could not reasonably be expected to have foreseen the impediment and its effect upon its ability to perform at the time of the conclusion of the Order; and (iii) that it could not reasonably have avoided or overcome it, or at least its effects; provided that the affected party shall promptly notify the other party of any such impediment. An impediment may result from any of the events listed here, this enumeration being exhaustive: war, riots, revolutions, acts of piracy, acts of sabotage, violent storms, cyclones, earthquakes, tidal waves, and floods which are not seasonally expected. If the affected party is Seller, and the impediment lasts longer than fifteen (15) calendar days, Buyer may, without any penalty, liability or further obligation thereunder, terminate the Order.
17. TERMINATION. Buyer may terminate any Order, in whole or in part, at any time and for any reason, by written notice to Seller. Upon receipt of such notice, Seller will, unless otherwise directed, (i) immediately discontinue all work and the placing of all orders for materials, facilities, and supplies in connection with the performance of the terminated Order; (ii) will promptly cancel all existing orders; and (iii) terminate all subcontracts in so far as such orders or subcontracts are chargeable to the Order. Buyer shall have no liability to Seller beyond payment of any balance owed for any Products, Services or Deliverables purchased hereunder, delivered, and accepted by Buyer, prior to Seller’s receipt of the notice of termination. Buyer shall not be liable for any payment to Seller if termination is due to the Breach of Seller. Buyer shall, in the case of any such termination, have no liability to compensate Seller for any loss of profit, loss of revenue, loss of business, or any indirect, special, punitive, or consequential losses or damages whatsoever.
18. EXPORT CONTROL. Seller shall comply with all applicable export control laws and shall not, directly or indirectly, export, reexport, ship, or divert any Products which it knows, or reasonably should know, will violate any Sanctions as defined in Section 19 below, or otherwise in violation of any applicable national legislation. Seller shall indemnify and hold Buyer harmless from and against any and all claims, losses, costs, and damages arising from Seller’s failure, intentional or unintentional, to comply with this Section 18 and Section 19 below.
19. TRADE COMPLIANCE. Seller represents, warrants, and undertakes that neither Seller, its affiliates, or any of its respective directors, officers, agents, employees or any person or entity acting on behalf of any of them, is, or is directly or indirectly, owned or controlled, by a person or entity that is or will be designated on any economic sanctions or export controls list of any governmental authority, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) Specially Designated Nationals and Blocked Persons List. Seller promises that no action of Seller or any of its affiliates, and its respective directors, officers, agents, employees, or any person or entity acting on behalf of any of them, or any other transaction contemplated hereby or the fulfilment of the terms hereof, will result in a violation of any trade sanctions, foreign trade controls, export controls, non-proliferation, anti-terrorism, and similar laws administered by OFAC, the U.S. Departments of State or Commerce in the United States, the European Union and its Member States, the United Kingdom, Switzerland, the United Nations Security Council (“UNSC”), or any other relevant sanctions authority which prohibit the sale, export, or diversion of the Products to sanctioned territories, countries, or nationals of those countries, as well as to persons or entities whose names appear on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC or similar lists (collectively, “Sanctions”). Neither party shall be obliged to perform any obligation otherwise required by the Order, including without limitation an obligation to (i) perform, deliver, accept, sell, purchase, pay, or receive monies to, from, or through a person or entity, or (ii) engage in any other acts if this would be in violation of, inconsistent with, or expose such party, a parent company or affiliate of such party, or any other person related to that party, to punitive measure under any Sanctions. If Seller should learn that any of the representations made in this clause are no longer accurate, or learn of any violation of Sanctions by Seller that may involve the Products, Seller shall inform Buyer immediately in writing. Furthermore, Seller shall provide all information, assistance, and cooperation requested by Buyer in connection with Buyer’s compliance efforts, including taking corrective or remedial action recommended by Buyer and/or by providing certifications of compliance with relevant Sanctions as requested by Buyer.
20. DATA PRIVACY. If the performance of the Order requires Seller to collect, receive, store, transmit, retransfer, dispose, or otherwise use (collectively “process “or “processing”) any information relating to an identified or identifiable natural person (“Personal Data”), Seller undertakes to (i) process the Personal Data solely for the legitimate purposes of performing its obligations under the Order and for no other purpose, and only in accordance with the local law governing such processing, and only on documented instructions from the Buyer; (ii) to provide the subject of the Personal Data with the same rights in relation to their Personal Data, including but not limited to rights of access, rectification, or erasure available to such individual as they would have in the country in which he or she resides; (iii) ensure that any persons it authorizes to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data; (iv) provide all necessary information to Buyer to demonstrate compliance with this clause and allow for, and contribute to, audits, including inspections, conducted by Buyer or another auditor mandated by Buyer; and (v) as soon as possible after delivery of the Products or termination of Seller’s relationship with Buyer, delete all existing copies of Personal Data or return any Personal Data to Buyer, at Buyer’s discretion. Seller warrants that it has full legal authority to process the Personal Data as contemplated, it has in place appropriate technical and organizational measures to prevent unauthorized or unlawful processing or accidental loss or destruction of, or damage to, such Personal Data, and it has adequate security programs and procedures to ensure that unauthorized persons will not have access to the Personal Data. Seller shall be responsible for, and remain fully liable to, Buyer for the actions and omissions of Seller, all its affiliates, and its respective employees, representatives and subcontractors concerning the treatment of Personal Data as if it were Seller’s own actions and omissions.
21. CODE OF CONDUCT, SOCIAL ACCOUNTABILITY STANDARD AND GLOBAL ANTI-CORRUPTION POLICY. Seller warrants that in the performance of its obligations under the Order, Seller shall comply with all applicable anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010. Seller further represents and warrants that it complies, and shall comply in full at all times, with Buyer’s Supplier Code of Conduct, and Code of Business Conduct and Ethics, both available at https://investors.Amyris.com/corporate-governance (“Code of Conduct”), which may be amended from time to time and are incorporated by reference in their entirety into the Order. Seller acknowledges that it has read and understood the Supplier Code of Conduct and Code of Business Conduct and Ethics. Seller acknowledges that Buyer may request Seller to participate in questionnaires or routine audits to demonstrate Seller’s compliance with its obligations under this clause, and Seller agrees to provide its support, cooperation, and answer truthfully to any questions raised in connection thereto. Failure to do so shall be deemed a Breach.
22. GOVERNING LAW AND JURISDICTION. Buyer and Seller shall attempt to amicably resolve any dispute arising out of or in connection with these
Terms and the Order. The validity, construction, interpretation, and administration of these Terms and the Order will be governed by the laws of the State of California, without regard to choice of law principles. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and all implementing legislation. Any disputes, controversies, or claims arising out of, or relating to, these Terms and the Order, or the breach thereof, shall be heard in the federal or state court located in San Francisco County, California, and Seller and Buyer expressly waive any objection to the jurisdiction of these courts.
23. MISCELLANEOUS. Seller shall not assign, transfer, or otherwise dispose of the Order, or any rights or obligations under it, to any third party without the prior written consent of Buyer. Buyer may, without Seller’s consent, transfer or assign the Order to any affiliate of Buyer. All rights and obligations shall inure to the benefit of and be binding on any permitted assignee or successor of each party. Failure of Buyer to insist upon performance of any provisions of the Order or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right. If any enforceable term, provision, undertaking, or restriction contained in the Order are held by a court of competent jurisdiction to be invalid, void, or unenforceable (in whole or in part), the remainder of the terms, provisions, undertakings, and restrictions contained herein will remain in full force and effect, and will in no way be affected, impaired, or invalidated. Notwithstanding any other provision of the Order, the parties agree that those obligations which by their nature are intended to survive expiration or termination, will survive. Any notice or request required or permitted to be given in connection with the Order shall be transmitted or sent by courier, mail, or email to the intended recipient at its address set forth in the Order or to any other business address furnished in writing by the intended recipient to the sender. The date of notice shall be deemed to be the date on which such notice has been received by the recipient.