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Fluxergy Purchase Order Terms & Conditions

Effective date:

February 11, 2025

FLUXERGY, INC.

STANDARD PURCHASE ORDER TERMS & CONDITIONS

1. ACCEPTANCE: A PURCHASE ORDER issued by Fluxergy, Inc. ("Fluxergy") referencing these terms and conditions shall become a binding contract when accepted by acknowledgment of SUPPLIER or commencement of performance by SUPPLIER within the time frame set forth in such PURCHASE ORDER.  Any different or additional terms or conditions in any SUPPLIER quotation, acknowledgment, invoice or other document or communication shall constitute a counter-offer and no contract shall exist unless specifically accepted in writing by FLUXERGY.  

2. CHANGES: FLUXERGY may at any time direct in writing additions, deletions, or other changes to all or any part of the scope or timing of a PURCHASE ORDER, and SUPPLIER agrees to perform such work as changed unless objected to in writing. If any such change causes an increase or decrease in the cost of or in the time required to perform such work, SUPPLIER shall immediately notify and submit information to FLUXERGY stating such and substantiating such claims. If agreed upon by both Parties, an equitable adjustment shall be made to the purchase price, or time of performance, or both.

3. QUALITY:

A. All goods are subject to FLUXERGY's approval notwithstanding prior inspection or payment and, if not timely delivered in accordance with specifications may, in FLUXERGY's sole discretion, be rejected.  All SUPPLIER services (including without limitation, product formulation services, safety and efficacy testing, stability testing, etc.) are subject to FLUXERGY's approval notwithstanding prior inspection or payment and, if not satisfactory or in accordance with specifications may, in FLUXERGY's sole discretion, be performed by FLUXERGY or its designated contractor at SUPPLIER's expense or the amounts paid therefore by FLUXERGY promptly refunded to FLUXERGY.  

B. SUPPLIER covenants and warrants that the goods sold pursuant to any PURCHASE ORDER (including without limitation any goods provided in connection with services) shall (i) conform to all drawings, specifications, samples and other written descriptions furnished by FLUXERGY (or furnished to FLUXERGY by SUPPLIER and agreed upon by FLUXERGY in writing), (ii) are unused, (iii) comply with all applicable laws, and if the goods are manufactured they have been produced in a facility that is in compliance with all applicable laws, (iv) are fit for the purpose(s) for which they are intended, and (v) are free from patent or latent defects.  SUPPLIER shall not unilaterally implement any change to any of FLUXERGY’S specifications without prior written approval.

C. SUPPLIER warrants that the services pursuant to any PURCHASE ORDER shall be performed in a professional and workmanlike manner, in conformity with standard practices and all applicable laws, rules and regulations.

D. If FLUXERGY chooses to accept defective or nonconforming goods and/or services, FLUXERGY may do so. In such event, the price set forth in the relevant PURCHASE ORDER shall be reduced by the difference between (1) the value as set forth in the relevant PURCHASE ORDER and (2) the value of the goods and/or services (as appropriate) as accepted, as reasonably determined by FLUXERGY. If FLUXERGY chooses to not accept defective or nonconforming goods the SUPPLIER shall immediately replace, at no cost to FLUXERGY, all such goods.  

E. If the goods ordered are 1) drug products, dietary supplements or any other materials or products subject to cGMP regulations promulgated by the European Medicines Agency (“EMA”); 2) clinical samples; and/or 3) materials or products whereby FLUXERGY has previously notified SUPPLIER to comply with this Section, SUPPLIER warrants and covenants that all materials collected or derived from humans (“Human Material”) have been properly collected or produced with all necessary approvals, consents and/or authorizations for the collection, production, use and/or transfer of such Human Material, including compliance with 45 CFR 46 (Protection of Human Subjects), without any obligation on FLUXERGY to those who contributed  the Human Material. SUPPLIER shall provide documentation of such approvals, consents, and authorizations upon FLUXERGY's request.

4. DATA INTEGRITY: Any documentation or data relevant to activities performed, including without limitation any GMP documentation, shall be attributable, original, accurate, legible, complete, controlled, retrievable, and safe from intentional or unintentional manipulation or loss. These items are required throughout the legally required retention period of such data / documentation.

5. INVOICING AND PAYMENT:

A. SUPPLIER shall issue an invoice to FLUXERGY on or at any time after the completion of the delivery of goods or performance of services, and in accordance with these terms and conditions. If authorized by the PURCHASE ORDER, or if SUPPLIER does not issue an invoice in due course, FLUXERGY may generate the invoice and proceed to payment accordingly. SUPPLIER shall notify FLUXERGY of any error on an invoice generated by FLUXERGY within ten (10) days of receipt, or such invoice shall be deemed final.

B. If SUPPLIER is enabled to transact business with FLUXERGY electronically, SUPPLIER agrees to submit invoices in electronic form to FLUXERGY's Accounts Payable system through the FLUXERGY approved electronic payment method. If SUPPLIER is not so enabled, it agrees to submit invoices to FLUXERGY’s Accounts Payable system at the “bill-to” address set forth on the PURCHASE ORDER.

C. FLUXERGY shall make payment for invoices received pursuant hereto (or the undisputed portions of such invoices) within thirty five (35) days from receipt of a properly prepared and correct invoice. Where, however, other payment terms appear on the front of any PURCHASE ORDER, payment shall be made in accordance with those terms and conditions.

6. SHIPMENT AND DELIVERY OF GOODS:

A. Shipment of all goods shall be effected as  set forth in the PURCHASE ORDER. Unless otherwise set forth in the PURCHASE ORDER, (i) all goods shall be shipped Ex Works (Incoterms 2010) SUPPLIER’s manufacturing facility, (ii) SUPPLIER shall select a reputable common freight carrier to deliver the goods to the destination designated by FLUXERGY or as otherwise communicated by FLUXERGY to SUPPLIER, and (iii) SUPPLIER shall insure such products against loss. All shipping and insurance charges will be billed to FLUXERGY and listed on SUPPLIER’S invoice to FLUXERGY.  SUPPLIER shall not charge FLUXERGY any extra amounts for packing, crating, or drayage of goods

B. Goods constituting biologicals, pharmaceuticals, or chemicals shall have a minimum two year shelf life at time of delivery unless otherwise set forth in the PURCHASE ORDER or a different shelf life is agreed upon by the Parties in writing.  

C. All goods shall be transported in compliance with the specified storage conditions (e.g., temperature, humidity), and shall not be mixed with or contaminated by other products or materials.

D. All goods shall at all times prior to shipment be protected against any unauthorized access. All goods shall be protected from falsification, tampering or modifications, and FLUXERGY shall be immediately notified in the event SUPPLIER becomes aware of same.

E. All goods shall be staged and transported in clean and vermin/insect-free environments and containers.  

F. The handling and shipment of goods constituting biologicals, pharmaceuticals, or chemicals shall be conducted by qualified, trained personnel in order to minimize the risk of wrong dispatch, damage, delays or other negative influences during staging, loading and transport.

G. All goods are to be made available for transport in appropriate packaging (e.g., cardboard box, pallets, insulated containers, cooling boxes, etc.). Standardized and validated shipping containers are to be used. The transport packaging / shipping container are to be labelled in accordance with all applicable laws (e.g., transport- and storage advice, shipping labels, etc.). In case of placing orders for transportation with third parties, transport agreements shall be fixed in writing.

H. SUPPLIER shall notify FLUXERGY immediately of any situation that may delay or threaten to delay the timely delivery and/or performance of any goods or services that are the subject of any PURCHASE ORDER. All or any portion of a PURCHASE ORDER may, at FLUXERGY's option, be canceled without liability by FLUXERGY if  delivery is not made as or when specified in said PURCHASE ORDER and these terms and conditions.

7. RETURNS: Any rejected goods or goods shipped by SUPPLIER in excess of the quantity designated in any PURCHASE ORDER may be returned by FLUXERGY at SUPPLIER's sole expense.  The cost of any returned goods will be credited to FLUXERGY, and any costs associated with the return of goods to the SUPPLIER will be borne by the SUPPLIER.

8. ASSIGNMENT; USE OF SUBCONTRACTORS: SUPPLIER shall not assign, in whole or in part, to any person, business or government agency, its rights, interests or obligations under any PURCHASE ORDER placed pursuant to these terms and conditions without FLUXERGY's prior written consent, which may be granted or denied in FLUXERGY’S sole discretion.  Any such attempted assignment shall be deemed void ab initio and not merely voidable.  SUPPLIER shall not utilize the services of subcontractors without the prior written consent of FLUXERGY given in each instance.  Regardless of any such FLUXERGY consent, SUPPLIER shall be full responsible and liable for all actions and omissions of any of its subcontractors, agents or representatives in regards to any FLUXERGY PURCHASE ORDER.

9. RECORDS AND AUDIT RIGHTS: FLUXERGY shall have the right to examine and audit the books and records and conduct in-person audits of any manufacturing facility of SUPPLIER at any reasonable time upon ten days prior notice. All books and records will be maintained for at least five (5) years or as otherwise required by law and will be adequate to enable determination and substantiation of compliance with the provisions of the relevant PURCHASE ORDER (including payments made thereunder) and all applicable laws.

10. PROPRIETARY INFORMATION: In the course of providing goods and/or while performing services pursuant hereto and at any time subsequent, SUPPLIER will not, without prior written approval of FLUXERGY, use for itself or for others, or disclose to any third party, any confidential information, knowledge or data of or regarding FLUXERGY, concerning any product, apparatus, process, formula, manufacturing method, or manner of doing business that may be used, developed, or investigated by SUPPLIER or may come to SUPPLIER's attention in the course of providing the goods and/or performing the services  (hereinafter individually and collectively referred to as "INFORMATION"). The obligations in this Section shall not apply to any information, knowledge or data already known to SUPPLIER or that prior to the time of disclosure are in the public domain.  If requested by FLUXERGY, SUPPLIER agrees to require its employees and/or contractors to execute a nondisclosure agreement prior to providing goods and/or performing any services pursuant to a PURCHASE ORDER. SUPPLIER understands and agrees that any use or disclosure of INFORMATION in violation of these terms and conditions will cause FLUXERGY irreparable harm without an adequate legal remedy and shall therefore entitle FLUXERGY to injunctive relief from any court having jurisdiction without the requirement of posting any bond.

11. DATA PRIVACY: SUPPLIER agrees that when collecting, accessing or using any personal information that can identify an individual, SUPPLIER will only collect, access, use and disclose the minimum information necessary to enable SUPPLIER to perform its obligations under any PURCHASE ORDER, and that it will do so only in accordance with appliable laws.   SUPPLIER agrees to protect such information from loss, misuse, unauthorized access, disclosure, alteration or destruction, and promptly notify FLUXERGY of any loss, misuse unauthorized access, disclosure, alteration or destruction to such information of which SUPPLIER becomes aware.  SUPPLIER agrees to enter into such further agreements as may be required under appliable law that concern the collection, use, processing, storage and/or deletion of such personal identifying information.

12. ARBITRATION:  All disputes or controversies arising out of or in connection with any PURCHASE ORDER shall be exclusively resolved in accordance with the Rules of Arbitration (“Rules”) of the International Chamber of Commerce (“ICC”) before a single arbitrator.  The place of arbitration shall be in Orange County, California, United States of America.  However, to the extent permitted by the Rules, the Parties expressly agree to the use of the case management techniques contemplated by Appendix IV of the Rules, including but not limited to the use of telephone and/or video conferencing for procedural and other hearings where attendance in person is not essential, and the use of information technology to enable communication among the Parties and with the sole arbitrator.  The Parties agree that the sole arbitrator shall be an attorney licensed to practice the law in the jurisdiction governing this Agreement for at least fifteen (15) years with experience in conducting at least ten (10) formal arbitration proceedings.  If the Parties fail to agree upon a sole arbitrator within thirty (30) days of submitting a Request for Arbitration to the ICC, he/she shall be selected by International Court of Arbitration in accordance with the Rules. The sole arbitrator’s award may take the form of monetary damages, equitable relief (including issuing preliminary and/or permanent injunctions), or both.  Any award shall be binding on the Parties, published, final, non-appealable, and enforceable in any court having jurisdiction over the Parties.  The English language shall be used in all arbitration proceedings, submissions, documents, and other correspondence.  To the extent permitted by the Rules, depositions and/or testimony of individual witnesses shall take place in such individual’s domicile and may be conducted by a Party in person and/or through the use of telephone or video conferencing.  Upon request of either Party, all arbitration submissions by the Parties (but not any award or procedural order) shall be treated as Confidential Information (as that term is defined hereunder) and shall be governed by the provisions of this Agreement. The laws of the State of California, USA shall govern all arbitration proceedings.  

13. PRODUCT RECALLS:  If FLUXERGY determines that a recall or market withdrawal (each, a “Recall”) of any goods is required or appropriate under applicable law or to prevent harm to the public, FLUXERGY shall to the extent feasible notify SUPPLIER and the parties shall promptly consult with each other and collaborate in good faith to facilitate such Recall.  FLUXERGY shall have sole responsibility to organize, manage and administer any Recall, including issuing notifications for any Recall to (i) any governmental authorities, and (ii) any distributor, retailer or end-user/customer of the goods.  

14. INTELLECTUAL PROPERTY:  The parties shall not acquire any of the Intellectual Property rights of the other, and each party owns or controls all Intellectual Property Rights belonging to or controlled by such Party that are in existence prior to the date of any applicable PURCHASE ORDER, or that is conceived or developed independently of any PURCHASE ORDER.  FLUXERGY is and shall remain the exclusive owner of all Product Formulas and all Intellectual Property Rights related thereto. “Intellectual Property” means all patents, patent applications, trademarks, copyrights, materials and other works that may be subject to copyright, trade secrets, and any other intellectual property, as well as all patentable and unpatentable inventions, ideas, know-how, concepts, object and source code, documentation, domain names, website content, improvements, or discoveries.  “Product Formula” means the formulas, ingredient lists (including the proportions thereof) and other information provided by FLUXERGY to SUPPLIER in respect of any goods that are the subject of a PURCHASE ORDER, including without limitation the flavor, color and/or smell profile, and any other defining characteristics of such goods.  

15. SUBSIDIARIES/AFFILIATES:  If a subsidiary or affiliate of FLUXERGY is identified in the “Ship to” address in the relevant PURCHASE ORDER, then: (1) said PURCHASE ORDER shall be and be deemed to have been placed by such subsidiary or affiliate; and (2) the references to FLUXERGY in the NOTE TO SUPPLIERS REGARDING TERMS AND CONDITIONS SECTION of said PURCHASE ORDER shall be and be deemed to be references to such subsidiary or affiliate; and (c) the references to FLUXERGY herein shall be and be deemed to be references to said subsidiary or affiliate.

16. MISCELLANEOUS: Subject to SECTION 1 hereof, the terms and conditions contained herein, together with the relevant PURCHASE ORDER, represent the entire agreement between FLUXERGY and SUPPLIER with respect to the goods and/or services set forth in said PURCHASE ORDER, and supersede any inconsistent or additional provisions made by SUPPLIER. The headings of the provisions of these terms and conditions are inserted for convenience only and shall not constitute a part hereof.  In the event that any provision of these terms and conditions or any PURCHASE ORDER shall be found to be void or unenforceable, such finding shall not be construed to render any other provision of such instruments void or unenforceable, and all other provisions shall remain in full force and effect.  Neither these terms and conditions nor any PURCHASE ORDER placed by FLUXERGY may be altered except in a subsequent writing signed by FLUXERGY.  A failure or delay by a Party to exercise any right or remedy it has by law or the applicable PURCHASE ORDER shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the applicable PURCHASE ORDER or by law shall prevent or restrict the further exercise of that or any other right or remedy.