MeMed Terms and Conditions for Purchase

MeMed Terms and Conditions for Purchase

The following terms and conditions (the “Terms”) shall form an integral part of an issued purchase order (the “PO”) and shall govern the purchase of any goods, materials, products or services of any kind (“Deliverables”) ordered or purchased by MeMed Diagnostics Ltd. and any of its affiliates and related entities (“Buyer”) from Seller, as specified under the PO. Buyer and Seller each may be referred to individually as a “Party” and together the “Parties”. Any delivery of products or provision of services referenced in the PO by seller shall be deemed an acceptance of the terms as contained herein. These Terms and any specific provisions appear in the PO, together with an agreed upon signed-agreement between the parties (if exists) represent the entire terms between the Parties and other than as stated or referenced specifically herein or therein, no other terms or arrangements shall be applicable. In the event of contradiction between these Terms and a specific term indicate under a PO, the latter shall prevail. It is hereby agreed between the Parties as follows:

1. Prices and Payments: Prices as indicated in the PO shall be firm, fixed and final, not subject to any change or escalation and inclusive of any and all taxes (unless explicitly indicated otherwise), duties and other government charges, imposed upon the consideration, production, sale, shipment, import, export, use or establishment of the Deliverables. Seller will indemnify and reimburse Buyer for any expenditure it may be required to make on account of Seller’s failure to pay such charges. Payments shall be made by no more than sixty (60) days from the date of a valid invoice submitted and accepted by buyer, referencing the relevant PO number.

2. Warranties and Representations: Seller hereby represents and warrants to Buyer that: (i) Seller has the necessary knowledge, skills and experience and is capable of competently and diligently providing the Deliverables; (ii) Seller shall neither use nor submit to Buyer any information that infringes any third-party proprietary right; (iii) Seller’s performance of his duties and obligations hereunder will not conflict with, result in a breach of, or constitute a default under any agreement or contract, whether oral or written, by which Seller may be bound; (iv) Seller will perform its obligations in a professional manner in accordance with the highest standards in the industry and the Deliverables will conform in all respects to the relevant requirements of the PO and these Terms; (v) Seller will comply with all applicable laws, regulations, and ordinances and has obtained all required governmental permits and licenses; and (vi) Seller shall maintain in full force and effect insurance coverage that is customary in the industry for comparably situated companies and Deliverables.

3. Supply: the Deliverables are produced, sold and supplied to Buyer in compliance with Buyer’s specifications, the PO and these Terms and will be new and best of quality and fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from all defects. Seller shall maintain an effective quality assurance system for control of material quality, assembly, testing, packaging and shipping. Unless otherwise agreed upon by the parties, it is hereby clarified that nothing in the PO or these Terms shall be construed as giving Seller exclusivity in supply of the Deliverables and Buyer is free, at Buyer’s sole discretion, to purchase same and/or similar Deliverables from other sellers. Seller undertakes not to make any change (and to procure that no change is made by the manufacturer of the Deliverables, if different from Seller) that impacts the quality, formula, route of synthesis, methods of analysis and specifications, manufacturing and packaging process of the Deliverables, or to scheduled delivery date, without receiving Buyer’s prior written consent. Title in the Deliverables shall pass upon acceptance by Buyer. Time is of the essence, and in addition to, and without derogating from Buyer’s other rights, privileges and prerogatives, Buyer: (i) may reject Deliverables not delivered or furnished on dates herein specified; and (ii) shall be entitled to agreed liquidated damages from Seller, which reflect, according to the intent of the parties, the actual damages, for any such delay in delivery, in an amount of 5% of the price of the PO for each full week of delay, up to a maximum of 20% of the price of the PO for the entire duration of the delay. Acceptance of Deliverables after the scheduled delivery date will not be construed as a waiver of Buyer’s rights with respect to such late delivery.

4. Packing and Shipping: All Deliverables shall be suitably packed, labeled and shipped in order to prevent any damage to the Deliverables, secure the lowest transportation rates and meet any carrier’s and insurer’s requirements. Each container must be marked and labeled properly to show quantity, quality, PO number, any of the Buyer’s part numbers, contents and shipper’s name. Seller shall prepay all shipping charges in accordance with the applicable delivery terms set forth in the PO. All Deliverables shall be shipped DAP (Incoterms 2022) to Buyer’s facility as indicated under the PO.

5. Inspection and Rejection: All Deliverables are subject to Buyer’s inspection and approval. Buyer reserves the right to return, at Seller’s expense, Deliverables shipped in excess of the PO and/or defective materials (including but not limited to latent defects) and/or Deliverables otherwise not meeting Buyer’s specifications’ standards. Buyer reserves the right, at Buyer’s sole discretion, to receive replacement or substitution or a refund from Seller for the rejected Deliverables. If requested by Buyer, Seller undertakes to replace the rejected Deliverables, free of any charge, within the time frame specified by Buyer.

6. Term and Termination: Without derogating from any of Buyer’s rights, Buyer may terminate or cancel the subject matter under the PO in whole or in part by written notice to Seller: (i) at any time without cause, provided that Seller shall be entitled to any unpaid fees and approved expenses relating to the portion of the PO actually performed and Deliverables already provided through the date of cancellation; (ii) if Seller ceases to conduct its operations in the normal course of business; or (iii) if Seller becomes insolvent, makes or attempts to make an assignment for the benefit of creditors, or proceedings are commenced by or against Seller under any bankruptcy, reorganization, arrangement, insolvency or liquidation law. Buyer reserves the right to suspend the PO for an accumulated period not to exceed 120 days.

7. Force Majeure: Neither party shall be responsible or liable for failing to perform its obligations as set forth herein to the extent such failure is caused by circumstances beyond reasonable control, including without limitation acts of God and nature, embargoes, war, terrorism, insurrections, riots, civil commotions, strikes, lockouts, fire, earthquakes, floods, governmental restrictions or actions and judicial orders.

8. Confidentiality and IP: Seller undertakes to treat and maintain, in strict confidence and confidentiality, any non-public information disclosed by Buyer, including but not limited to information contained in drawings, specifications, schedules, tooling or other documents, tangible or intangible items (“Confidential Information”). Seller shall (i) use the Confidential Information for the sole purpose of fulfilling its obligations under the PO; (ii) not disclose any Confidential Information to any third party, unless approved in advance and in writing by Buyer; and (iii) upon Buyer’s request, shall return immediately all Confidential Information and any embodiments thereof and provide assurance of such return. As between the Parties, all reports, results, deliverables, documentation, opinions, analyses, findings, conclusions, recommendations, summaries, communications, processes, methods, know-how, designs and inventions that result from or are suggested by Seller that are created, developed, conceived, reduced to practice, discovered, invented or made by Seller (whether solely or jointly with others) in connection with Seller’s performance under these Terms and the PO, in preliminary or final form (collectively, “Buyer’s IP”), will be the sole and exclusive property of Buyer and shall be considered as Buyer’s Confidential Information. The Seller will promptly disclose Buyer’s IP to Buyer in writing, and hereby assigns to Buyer all his rights to such Buyer’s IP and undertakes to sign such additional documents as Buyer shall reasonably consider advisable in order to complete this assignment and to apply for patent or copyright protection in the name of Buyer. Seller shall not be entitled, and hereby waives now and in the future, any claim to any right, compensation, royalty, and reward in connection with said Buyer’s IP. Seller hereby grants a perpetual, paid-up license for any use relating to any of its pre-existing intellectual property embedded in the Deliverables. The provisions of this section 6 shall apply as of the beginning of the relationship between the Parties and remain in full force and effect at all times. Seller agrees to protect the privacy and provide for the security of any personally identified information transferred by Buyer, and to maintain all registrations for the processing of such personal data, all in accordance with relevant laws and regulations.

9. Indemnity: Seller shall be exclusively liable and indemnify and hold Buyer, its directors, officers, employees, subcontractors and agents, harmless from and against any claims, liabilities, damages, losses, costs and expenses (including without limitation reasonable attorneys’ fees), which might be made against Buyer or which Buyer might incur as a result of or generating from the Deliverables and from actual or alleged infringement of any intellectual property rights related to the Deliverables and Seller’s breach of any of its obligations hereunder, unless such claims resulted from the Buyer’s gross negligence or willful misconduct.

10. Assignment: These Terms and the PO in their entirety shall bind and inure to the benefit of successors, affiliate companies and assigns of Buyer, provided that Buyer shall procure and be responsible towards Seller for compliance with the terms set forth herein. Seller may not assign these Terms and the PO without Buyer’s written consent.

11. Notices: Any notice or other written communication required or permitted to be made or given may be made or given by either party by e-mail, first-class mail, postage prepaid or by air courier, to the mailing address, e-mail or facsimile set forth in the PO. Notices or written communications shall be deemed to have been sufficiently made or given: (i) if mailed, 14 days after being dispatched by mail, postage prepaid; or (ii) if by air courier, 7 days after delivery to the air courier company.

12. Governing Law and Jurisdiction: These Terms and the PO shall be governed by the laws of the State of Israel, without reference to its conflict of laws principles. Any dispute arising out of or in connection with these Terms or the PO is hereby submitted to the sole and exclusive jurisdiction of the competent courts in Tel Aviv, Israel.

13. Miscellaneous: No failure, delay of forbearance of either Party in exercising any power or right hereunder shall in any way restrict or diminish such Party’s rights and powers under these Terms or operate as a waiver of any breach or nonperformance by either Party of any terms of conditions hereof. Seller hereby acknowledges that he is an independent contractor and not an employee, agent or partner of Buyer and has no authority to enter into any agreement or contract, or to make any promise, affirmation, description or representation, on behalf of Buyer. In the event that it shall be determined under any applicable law that a certain provision set forth in these Terms is invalid or unenforceable, such determination shall not affect the remaining provisions of these Terms, unless the purpose of these Terms is substantially frustrated thereby. Any amendments to the PO or these Terms shall be made in writing and signed by a duly authorized representative of each of the Parties. Any notice or other written communication required or permitted to be made or given may be made or given by either party by e-mail, first-class mail, postage prepaid or by air courier, to the mailing address, e-mail or facsimile set forth in the PO.

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7 Nahum Het St., Tirat Carmel
Park High-Tech North, 3508506, Israel
200 Brickstone Sq., Ste.106
Andover, MA 01801, USA