Yield10 Bioscience, Inc. Purchasing Terms and Conditions

These Terms and Conditions apply to all Yield10 purchases of goods and services, except as otherwise expressly provided in a written contract signed by both parties.
 
PURCHASE ORDERS: The term "Purchase Order" as used in these Terms and Conditions means a written purchase order issued by Yield10 to a Vendor, together with attachments and any solicitation, quote, proposal, contract or other document expressly incorporated by reference in the purchase order, including without limitation these Terms and Conditions.
 
The Vendor shall not begin work or supply any goods to Yield10 unless it has received a Purchase Order for the same from Yield10, and Yield10 shall have no obligation to pay for goods or services that are not subject to a Purchase Order.
The Vendor shall accept the Purchase Order by signing and returning a copy of the Purchase Order to Yield10. However, any written acknowledgement of the Purchase Order or commencement of work or shipment of goods shall constitute acceptance by the Vendor of the Purchase Order. Any acceptance of the Purchase Order is limited to the express terms contained in the Purchase Order, including these Terms and Conditions. Any quote or proposal for additional or different terms or any attempt by Vendor to vary in any way any of the terms of the Purchase Order or these Terms and Conditions in Seller’s acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of the Purchase Order, which shall be deemed accepted by Vendor without said additional or different terms.
 
INSPECTION AND REJECTION: Yield10 shall have a reasonable time after delivery of goods and services to inspect them. Yield10 may reject any goods or services which are, in its judgment, defective or nonconforming. Goods rejected or which are supplied in excess of quantities called for in the Purchase Order may be returned to Vendor at Vendor’s expense. The Vendor shall reimburse Yield10 for all direct, indirect, incidental and consequential costs related to nonconforming goods or services. Yield10 is entitled to all other remedies under applicable law, including the right to revoke acceptance of nonconforming goods. Notwithstanding final acceptance and payment, Vendor shall be liable for latent defects, fraud, or such gross mistakes as amount to fraud. Acceptance of performance shall not waive the right to claim damages for breach, negligence, product liability, or any act or omission covered by the indemnity provisions of these Terms and Conditions. Nothing herein shall relieve the Vendor from its obligations of testing, inspection and quality control.
 
TITLE AND DELIVERY: TIME IS OF THE ESSENCE and, in addition to its other rights and remedies, Yield10 may return goods at Vendor’s expense and/or terminate the Purchase Order for failure to deliver on time. Unless otherwise stated in the Purchase Order, all prices shall be F.O.B. Destination and shall include all delivery and unloading at the destination specified in the Purchase Order. Title to the goods shall pass to Yield10 upon acceptance at the specified F.O.B. point, subject to the right of Yield10 to reject as set forth in these Terms and Conditions.
RISK OF LOSS: The Vendor shall bear all loss of conforming goods until received by authorized personnel at the location designated in the Purchase Order. However, mere receipt does not constitute final acceptance. The risk of loss for nonconforming materials shall remain with the Vendor regardless of receipt.
 
WARRANTIES: The Vendor warrants that, except as otherwise expressly set forth in the Purchase Order, all goods and services delivered shall:
  • be merchantable and free from defects;
  • conform to the specifications, descriptions and other conditions of the Purchase Order;
  • be free from liens and encumbrances, with good title conveyed upon payment of the purchase price;
  • be fit and safe for their intended purpose;
  • in the case of services, be performed by competent, trained and fully-qualified personnel in a proper and workman-like manner and conform to the standards of the trades or professions involved.

Vendor also warrants that it shall obtain and assign or otherwise provide to Yield10 the benefits of warranties and guarantees provided by manufacturers or suppliers of material or equipment incorporated into the goods or services and shall perform its responsibilities so that such warranties or guarantees remain in effect. The foregoing warranties and remedies shall be in addition to any warranties or remedies provided by law and shall survive inspection, test, acceptance and payment. PAYMENT: The Vendor must submit an itemized invoice, referencing a valid Purchase Order number, to Accounts Payable, Yield10, Inc., 21 Erie Street, Cambridge, MA 02139 USA (or AccountsPayable@Yield10Bio.com). The invoice must specify the goods or services provided, which must match the description in the Purchase Order; the dates the work was performed or the goods were provided; and the specific amount of the invoice in US dollars. Payment shall be subject to the provisions of the Inspection and Rejection paragraph of these Terms and Conditions. In the case of a Purchase Order for services, the Vendor shall be paid at the completion of the services unless a schedule of progress payments is expressly provided in the Purchase Order. Invoices for progress payments must specify the actual work performed. If Yield10 has agreed in writing to reimburse the Vendor for travel expenses, Yield10 will do so according to its policies and rates applicable to its employees. The Vendor must submit an invoice for any travel reimbursement requested, specifying its expenses, and attach original receipts for airfare and hotel expenses.

DISCOUNTS: Prompt payment discounts, if applicable, will be calculated from the date the goods or services have been received, accepted and correct invoice received by the Yield10 Accounts Payable Department. In the event testing is required prior to acceptance, the discount time shall begin upon completion of the tests.

CHANGES: Yield10 may make changes in the scope of a Purchase Order by written notice to Vendor. If such changes affect the cost of, or the time required for, performance of the Purchase Order, an appropriate equitable adjustment shall be made; provided that any claim of the Vendor for an adjustment under this paragraph must be made in writing within thirty (30) days from the date of receipt by Vendor of notification of such change and shall be subject to written acceptance by Yield10.

TERMINATION: Yield10 may terminate the Purchase Order at any time for convenience by giving Vendor written notice of termination. In such event, Vendor shall immediately stop all work and cause its suppliers or subcontractors to cease such work. Vendor shall be paid a reasonable termination charge reflecting the percentage of the work performed prior to the termination notice, plus actual direct costs resulting from termination. Vendor shall not be paid for any work performed after receipt of the termination notice, except as necessary to effect termination, nor for any costs incurred which reasonably could have been avoided. Any claims by Vendor under this paragraph must be asserted in writing in detail within 30 days after receipt of Yield10’s termination notice. Yield10 may also terminate any Purchase Order or any part thereof for cause if the Vendor fails to comply with any of the terms of the Purchase Order or is otherwise in default thereunder. In such event, Yield10 shall have no liability for such termination, and without prejudice to any other remedy Yield10 may have, Vendor shall be liable to Yield10 for all damages sustained by reason of the default.
 
ASSIGNMENT AND DELEGATION: The Vendor shall not assign any right nor delegate any duty under a Purchase Order without the prior written approval of Yield10.
 

FORCE MAJEURE: Neither party shall be liable to the other nor deemed in default if and to the extent that such party's performance is prevented by reason of an occurrence that is beyond its control, including without limitation acts of God; acts of the public enemy; war; riots; strikes; mobilization; labor disputes; civil disorders; fire; flood; lockouts; failures or refusals to act by government authority; and other similar occurrences which such party is unable to prevent by exercising reasonable diligence. The party affected shall promptly notify the other in writing of the cause of any excusable delay. During the period of any such delay by Vendor, Yield10 may purchase its requirements elsewhere and at Yield10’s sole option apply such purchases to reduce the quantities due under the Purchase Order. 

PATENT AND COPYRIGHT INDEMNITY: The Vendor shall indemnify Yield10 against all losses, liabilities, lawsuits, claims, expenses (including attorney's fees), costs, and judgments incurred as a results of any claims that the goods described in the Purchase Order infringe any copyright, patent, trademark or other intellectual property rights of a third party.
 
LIABILITY: If Vendor’s work under the Purchase Order involves operations by Vendor on the premises of Yield10 or one of its customers, Vendor shall take all necessary precautions to prevent the occurrence of any injury to persons or damage to property during the process of such work, and, except to the extent that any such injury or damage is due solely and directly to Yield10 negligence, Vendor shall pay and indemnify Yield10 for all liabilities and loses and associated expenses, including attorney fees, which may result in any way from any act or omission of the Vendor, its agents, employees, or subcontractors. Vendor shall maintain comprehensive general liability insurance which is primary as to Yield10 for bodily injury and property damage with a minimum limit of $1,000,000 per occurrence and workers compensation insurance (including employer’s liability – Coverage B, with minimum limits of $1,000,000 for each occurrence of bodily injury) for all of Vendor’s employees. Any subrogation and liens arising from payment under any of the above-referenced coverages shall be waived in favor of Yield10.
 
CERTIFICATION: The Vendor certifies that it is an independent contractor, that it provides services to other customers, maintains insurance as required above, sets its own priorities on time and hours of work, provides its own supplies, and determines the means of delivering services.
 
CONFIDENTIALITY: Unless specifically covered by confidentiality and non-use provisions of a separate agreement signed by Vendor and Yield10, (a) all information furnished by Yield10 or learned or observed by Vendor in performing the Purchase Order, whether written, oral or in the form of samples or other physical material, shall be confidential and proprietary to Yield10, and (b) Vendor shall not disclose any such information to any other person, or use such information for any purpose other than performing the Purchase Order, without Yield10’s express written consent. The Vendor shall not advertise or publish any information concerning the Purchase Order or the goods or services provided thereunder without the prior written approval of Yield10.
 

GRATUITIES: Yield10 may, by written notice, terminate any Purchase Order, in whole or in part, if Yield10 determines that employment or a gratuity was offered or made by the Vendor or a representative of the Vendor to any officer or employee of Yield10 for the purpose of influencing the outcome of the procurement or securing the Purchase Order, an amendment to the Purchase Order, or favorable treatment concerning the Purchase Order, including the making of any determination or decision about contract performance.

GOVERNING LAW: The interpretation, validity and enforcement of any Purchase Order shall be governed by the laws of Massachusetts.

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