General Purchase Order Terms and Conditions

  1. Applicability

    1. This purchase order is an offer by BioAtla, Inc. (the "Buyer") to purchase the goods ("Goods") and/or services ("Services") from the seller ("Seller") named in this purchase order (the "Order"), which purchase is governed solely by these terms and conditions (“Terms”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and/or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
    2. The Order and these Terms (collectively, the "T&Cs") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. These T&Cs expressly limit Seller's acceptance to the terms set forth in these T&Cs. Fulfillment of this Purchase Order constitutes acceptance of these Terms.
    3. These Terms apply to any repaired or replacement Goods or Services provided by Seller hereunder.
    4. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
  2. Acceptance. This Order is not binding on Buyer until Seller either (i) accepts the Order in writing through a written contract signed by both parties or provides e-mail acceptance of the Order or (ii) starts to perform in accordance with the Order. If Seller does not accept the Order in writing or provide written notice that it has commenced performance within thirty (30) days of Seller's receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.
  3. Delivery of Goods/Performance of Services. Seller shall deliver the Goods in the quantities specified in this Order and on the date(s) agreed to in a written contract between the parties or as otherwise agreed in writing by the parties (the "Delivery Date"). If no delivery date is specified, Seller shall deliver the Goods within fifteen (15) days of Seller's receipt of the Order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller's failure to deliver the Goods on the Delivery Date. Seller shall provide the Services to Buyer as described and in accordance with the terms and conditions set forth in these Terms. Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods and Services.
  4. Delivery Location. All Goods shall be delivered to the address specified in this Order or as otherwise instructed by Buyer (the "Delivery Location") during Buyer's normal business hours or as otherwise instructed by Buyer.
  5. Shipping Terms. Delivery shall be made to the Delivery Location. Seller shall give electronic written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to Buyer when Delivered. The Order number must appear on all invoices pertaining to the Order.
  6. Title and Risk of Loss. Title passes to Buyer upon the earlier of Buyer’s full payment of the Goods and/or Services or delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
  7. Packaging. All Goods shall be packed for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be at Seller's expense.
  8. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
  9. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may terminate this Order for cause pursuant to Section 17 and Seller shall reimburse Buyer all amounts paid for such Goods. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
  10. Seller's Obligations Regarding Services. Seller shall: (a) before the date on which the Services are to start, obtain, and at all times during the term of these T&Cs, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under these T&Cs, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve; (d) obtain Buyer's written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a "Permitted Subcontractor"), and ensure each Permitted Subcontractor is subject to confidentiality terms substantially the same as in these Terms; (e) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; and (f) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer.
  11. Change Orders. Buyer may at any time, by written instructions issued to Seller (each a "Change Order"), order changes to the Services. Seller shall promptly submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions set forth herein. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under these T&Cs.Change Orders. Buyer may at any time, by written instructions issued to Seller (each a "Change Order"), order changes to the Services. Seller shall promptly submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions set forth herein. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under these T&Cs.
  12. Price. The price of the Goods and Services is the price stated in the Order (the "Price"). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer.
  13. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Seller shall submit all invoices to accounting@bioatla.com. Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars and made by check, ACH or wire, at Buyer’s sole discretion, unless otherwise agreed to in writing by Buyer. Amounts not disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this 13. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
  14. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under the Order.
  15. Warranties. Seller warrants to Buyer that for a period of three (3) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests, or other encumbrances; and (f) not infringe or misappropriate any third party's patent or other intellectual property rights. Seller warrants that it will perform the Services in (i) a professional and workmanlike manner in accordance with best industry standards of care, skill, and diligence observed by professionals performing similar services, (ii) in strict compliance with all applicable laws, and (iii) strictly in accordance with all requirements and Specifications of this Order. Seller further warrants that none of the Services infringe or misappropriate any IP right. If any of the Services fails to comply with any of these warranties, Seller will promptly correct such Services at Seller’s expense. If Seller fails to commence such correction within five (5) days of receipt of notice from Buyer, Buyer may, at its sole option, terminate this Order for cause, procure the Services elsewhere, and charge Seller with any loss incurred. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods and Services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods and Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace, re-perform, or repair the defective or nonconforming Goods and Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to Buyer.
  16. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods. Without limitation of the foregoing, Seller represents and warrants that it has provided no item of value to any of Buyer's employees or agents for the purpose of procuring the Order.
  17. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods or Services on thirty (30) days' prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods and Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.
  18. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller's liability under s 15 and 20 hereof, or (b) Seller's liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
  19. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  20. Confidential Information. All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of performing the Order, and may not be used for any other purpose, disclosed or copied unless authorized by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief without bond for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
  21. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these T&Cs, for any failure or delay in fulfilling or performing any term hereunder, when and to the extent such party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Order; and (f) national or regional emergency. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
  22. Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer, which may be withheld in Buyer's sole discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, or subcontract any or all of its rights or obligations under the Order without Seller's prior written consent.
  23. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order 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. No relationship of exclusivity shall be construed from this Order.
  24. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto 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.
  25. Governing Law. This Order and all related documents, and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
  26. Submission to Jurisdiction. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these T&Cs, including all exhibits, schedules, attachments, and appendices attached to these T&Cs, and all contemplated transactions, in any forum other than US District Court for the Southern District of California or the courts of the State of California sitting in San Diego County and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in US District Court for the Southern District of California or the courts of the State of California sitting in San Diego County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
  27. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
  28. Severability. If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
  29. Survival. Provisions of this Order which by their nature should survive beyond the expiration or earlier termination of this Order will remain in force after such expiration or earlier including, but not limited to, the following provisions: Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.