Terms of Agreement
The purchase order, together with these terms and conditions (the “Terms”), and any attachments and exhibits, specifications, instructions, statements of work, and other information, whether physically attached or incorporated by reference (collectively, this “PO”) constitutes the entire and exclusive agreement between Instil Bio, Inc. (“Client”) and the vendor identified on the first page of the purchase order form to which these standard terms and conditions are attached (“Vendor”). This PO does not constitute a firm offer within the meaning of the Uniform Commercial Code as enacted in Texas, and may be revoked at any time prior to acceptance. Vendor, by its failure to object to these terms and conditions in writing within 24 hours after Vendor’s receipt of this PO or by furnishing all or any part of the goods or services provided or ordered hereby, or by Vendor doing anything else required or ordered hereby, in whole or in part, shall conclusively be deemed to have assented to the terms and conditions set forth herein. No additional or conflicting terms or conditions included in any project proposal, hyperlink, quote, acknowledgement or invoice of Vendor not expressly part of or incorporated into this PO shall be binding on Client. No course of dealing or usage of trade shall be applicable unless expressly incorporated by this PO. To the extent the terms of this PO conflict with a master agreement (a “MA”), statement of work or other written agreement specifying the scope, objective and time frame of the Work (as defined below) (a “SOW”) between the Vendor and Client and intended to cover the transactions contemplated by this PO, then the terms of such MA, SOW or written agreement shall govern. This PO is not an acceptance by Client of any offer to sell, any quotation, or any proposal. Reference in this PO to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Any terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this PO, or with delivery of any goods or services under this PO, or otherwise, will not be binding on Client, whether or not they would materially alter this PO, and Client hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Vendor and Client.
1. INSPECTION AND ACCEPTANCE. All goods and services supplied by Vendor under this PO (collectively, the “Work”) shall be received subject to Client’s inspection and approval within a reasonable time after delivery (“Acceptance”). If specifications or warranties are not met, the Work may be returned at Vendor’s expense. Final acceptance or rejection of the Work will be made as promptly as practical after delivery except as otherwise provided in this PO, but failure to inspect and accept or reject the Work or failure to detect defects by inspection, will neither relieve Vendor from responsibility for such Work as is not in accordance with this PO nor impose liabilities on Client for them. Client’s payment for the Work shall not constitute its acceptance of the Work. No Work returned to Vendor as defective shall be replaced except upon Client’s formal authorization. Time is of the essence in Vendor’s performance of its obligations hereunder. If Vendor delivers any Work after the date specified in the PO, Client may reject such Work. Vendor shall preserve, pack, package and handle all goods so as to protect the same from loss or damage and in accordance with best commercial practices in the absence of any specifications Client may provide. Vendor must adhere to all DOT and IATA regulations applicable to shipping goods to Client. Vendor will ensure safe arrival of orders to destination and apply with all carrier requirements after securing lowest transportation costs. Client will reject any shipping receipt of goods that violate laws, ordinances, rules, and regulations at Vendor’s expense. Title and risk of loss shall pass to Client upon Client’s Acceptance of goods at destination.
2. “GOODS” AND “SERVICES”. The term “goods” as used herein means any and all deliverables, materials, parts, products, machines, tooling, equipment, technical data, computer software, computer software documentation, and other tangible items or documentary information furnished or required to be furnished by Vendor under this PO. The term “services” means any and all support, maintenance, technical assistance, consultation, and other effort furnished or required to be furnished by Vendor under this PO.
3. WARRANTY. Vendor warrants that: (1) all goods and services furnished pursuant to this PO will be free from defects in materials or workmanship and will be in conformity with all requirements of Client (under this PO or in any separate specifications) and fit for the purpose disclosed in this PO (or in separate specifications) and merchantable and fit for the purpose for which they are sold, and where design is Vendor’s responsibility, will be free from defects in design; (2) it will convey good title to such goods, free and clear from all liens, claims, and encumbrances; and (3) all services will be performed in a workmanlike and professional manner. Client’s approval of Vendor’s design or material shall not be construed to relieve Vendor of the warranties set forth herein. Without limitation of any rights which Client may have at law by reason of any breach of warranty, goods which are not as warranted may at any time within 12 months after Acceptance be returned at Vendor’s expense. Client at its option may require Vendor either to replace such goods at Vendor’s expense (including all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
4. PAYMENT. Unless this PO states otherwise, (1) the price for the Work includes all taxes and other charges such as shipping and freight charges, duties, customs, tariffs, taxes and other government-imposed surcharges, (2) the price for the Work shall be paid in US dollars, and (3) the terms of payment are net 30 days, after receipt of Vendor’s valid invoice. In the event Vendor has not received payment as agreed, Vendor will notify Client and Client will make prompt payment. All invoices shall be submitted as instructed in the Instil Bio Invoice Procedures instructions included with the Terms below. Vendor will state Client’s PO number clearly on the invoice and shall include a detailed and itemized description of all goods and services provided by Vendor thereunder as well as such additional supporting documents reasonably requested by Client. If Client has separately and specifically agreed to reimburse Vendor for expenses, Vendor shall only be entitled to reimbursement for reasonable out-of-pocket expenses incurred directly on Client’s behalf in connection with the Work on a cost-basis only, without any mark-up to the extent supported by proof (in a form reasonably satisfactory to Client) that such expenses were actually paid. An invoice shall be rendered for each order or for each shipment if more than one is made on an order.
5. CONFIDENTIAL INFORMATION AND PUBLICITY. All specifications, data and other information furnished by Client, or its affiliates, customers or agents, to Vendor in connection with this PO shall remain the exclusive intellectual property of Client (or its respective owner) and shall be treated by the Vendor as confidential and proprietary and shall not be disclosed or used without prior written approval of Client. In addition, the purchase of the Vendor’s product does not authorize the Vendor to use Client’s names, logos, marks or trademarks (collectively, “Client Marks”) or make reference to Client for any purpose in any releases for public or private dissemination, nor shall the Vendor divulge or use in any advertisement or publication any Client Marks or specifications, data, or other information pertaining to or relating to this PO without prior written approval of Client.
6. COMPLIANCE WITH LAWS. Vendor shall obtain all licenses and permits required by federal, state, or local laws or regulations necessary for the performance of the Work. Vendor shall comply with all applicable laws, regulations and ordinances in performing the Work. Vendor shall also comply with all laws and regulations relating to data protection, security, and processing of personal data, or restrictions on the processing, movement or transfer of such personal data (“Privacy Laws”). Vendor agrees to enter into any additional agreements or adhere to any additional contractual terms and conditions relating to processing of personal data as Client may instruct in writing that it deems necessary to comply with applicable Privacy Laws, including any required agreements for jurisdictions that have restrictions pertaining the processing or transfer of personal data. Where Vendor transfers personal data to Client, Vendor warrants that it has collected, processed, and transferred such personal data in compliance with all applicable Privacy Laws.
7. INDEMNIFICATION. Vendor hereby agrees to indemnify and hold harmless Client, its officers, directors, affiliates, shareholders, employees and customers from and against any and all liabilities, losses, damages and expenses (including legal expenses) of any kind or character arising from claims asserted and legal proceedings instituted in respect of (a) any breach of this PO, or (b) any act, omission or misrepresentation of Vendor, or any other agents or employees of Vendor.
8. ANTI-CORRUPTION. All Vendor actions related directly or indirectly to the performance of this PO will comply with all applicable anti-corruption laws. Accordingly, Vendor will not offer, promise, or provide any payments, loans, gifts of money, or anything of value to secure an improper advantage or for a corrupt purpose as described in applicable law.
9. RELEASE. VENDOR HEREBY RELEASES, WAIVES AND DISCHARGES CLIENT AND ITS AFFILIATES FROM ALL LIABILITY TO VENDOR FOR ITS PERSONAL INJURY, DEATH OR PROPERTY DAMAGE RESULTING FROM ANY NEGLIGENCE OF CLIENT OR ITS AFFILIATES WHILE VENDOR IS UPON CLIENT’S PREMISES.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL CLIENT OR ITS AFFILIATES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CLIENT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS PO EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO VENDOR FOR THE APPLICABLE GOODS OR SERVICES PROVIDED UNDER THIS PO NOR WILL CLIENT OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
11. INSURANCE. Vendor shall obtain and maintain worker’s compensation and employer’s liability insurance in amounts required under the laws of the state(s) in which the Work is to be performed; and comprehensive general liability and automobile liability insurance for bodily injury, death or loss of or damage to property of third persons in the minimum amount of $2,000,000 per occurrence which policy shall name Client as an additional insured. Vendor shall, upon request, promptly furnish to Client certificates of insurance as well as copies of any endorsements thereto evidencing Client being added as an additional insured.
12. OWNERSHIP AND LICENSE. Client is the sole and exclusive owner of any and all inventions, discoveries, improvements, works of authorship and deliverables arising in connection with the Work (“Work Product”). Vendor hereby irrevocably assigns and transfers to Client all of its worldwide right and title to, and interest in, the Work Product, including all associated intellectual property rights therein. Vendor also grants to Client a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sublicensable license to any intellectual property rights in: (1) products delivered outside the scope of the PO to the extent necessary for Client to exercise its rights in the Work as contemplated by the PO; and (2) all goods and services which are necessary for Client to use, import, copy, reproduce, display, perform, and distribute copies of and modify (including creating improvements and derivative works based on) the Work.
13. REPRESENTATIONS. Vendor represents and warrants that (1) it has the full power to enter into this PO and to perform its obligations thereunder; (2) it has the right and unrestricted ability to assign the Work to Client; (3) all Work does not and will not infringe upon or violate any applicable laws or regulations or any rights of third parties, including, but not limited to, privacy or intellectual property rights, or contain any libelous, defamatory, obscene, threatening, harassing or unlawful material or otherwise contain any material that could reasonably be expected to injure the reputation of Client; (b) Work Product delivered in electronic form shall contain no feature intended to deactivate it after a certain period of time; and shall not contain any virus, embedded device or undocumented code that is intended to obstruct, prevent or disable Client’s use thereof or otherwise contain any other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
14. TERMINATION. Client may terminate all or any part of this PO at any time, for any or no reason upon written notice to Vendor. Upon receipt of such notice, Vendor will collect and deliver to Client whatever Work then exists. Any prepaid funds paid to Vendor will be reimbursed. In the event of the termination or expiration of this PO, Vendor shall return to Client within 10 business day after said termination or expiration all goods owned by Client. Any obligations or duties which, by their nature, extend beyond the expiration or termination of this PO shall survive such expiration or termination. The rights and remedies of Client provided in this Section will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this PO.
15. ASSIGNMENT. Neither this PO nor any obligation under it shall be transferred or assigned by Vendor without the prior written consent of Client and any such assignment shall be null and void.
16. EQUITABLE REMEDIES. Vendor acknowledges that a breach by it of any confidentiality and proprietary rights provision of this PO will cause Client irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Client may institute an action to enjoin Vendor from any and all acts in a violation of those provisions, which remedy shall be cumulative and not exclusive, and Client may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Client may be entitled at law or in equity.
17. RELATIONSHIP OF PARTIES. Vendor shall perform the Work as an independent contractor and not as an agent, employee or partner of Client for any purpose whatsoever. Neither Vendor nor any of its personnel is authorized by Client to incur on behalf of Client, or to make any promise, warranty or representation with respect to Client’s products or otherwise, and shall not hold themselves out as being so authorized.
18. GOVERNING LAW. The validity and enforcement of this PO shall be governed by the laws of the State of Texas, including the Uniform Commercial Code as enacted in Texas, but without regard to Texas’s conflicts of laws rules. Each party agrees that the exclusive jurisdiction of any action or proceeding instituted by either party in connection with this PO shall be the appropriate state or federal court in and for Dallas County, Texas. Each party hereby waives the right to assert the doctrine of forum non conveniens.
19. GENERAL. If any Term or provision of this PO is held by a court of competent jurisdiction to be unenforceable, the remainder of the provisions shall remain in full force and effect. The prevailing party in any action arising out of this PO shall be entitled to its reasonable attorneys’ fees and other direct costs. No addition or modification of this PO shall be effective unless made in writing and signed by the respective representatives of Client and Vendor. Any delay or failure to enforce at any time any provision of this PO shall not constitute a waiver of the right thereafter to enforce each and every provision thereof.
INVOICING PROCEDURES
STEP 1: W-9 FORM:
1. Before your invoice can be processed you must submit a W-9 Form and provide ACH information on company letterhead or with a copy of a voided check. You may download a W-9 form from https://www.irs.gov/pub/irs-pdf/fw9.pdf
2. Please send your completed W-9 as a PDF file to [email protected]. Please be clear re: the vendor name and your contact person / department at Instil Bio.
3. Please provide your Accounting/Finance contact – name and/or dept, email address, phone, address for remittances.
STEP 2: INVOICE PREPARATION:
1. Save your invoice as a single PDF file and email to: [email protected].
2. Please name your file and the email subject line: your company name, YYYY-MM-DD-Description_Invoice-Expenses (for e.g.: 2020-Mar-30_ABC Corp_Consulting Services_Invoice.pdf)
3. We will need an email address to communicate and update your payment timeline
4. You will receive an email with instructions to set up your bank account info. ALL PAYMENTS ARE MADE BY ACH (paper checks or wire transfers require special requests and a longer processing time).
5. Invoices are paid from the system on the last business day of the month and invoice terms are net 30. (example: Your invoice for August services should be sent to the email addresses near September 1 and will be paid on September 30 by ACH).
6. Send all invoices to [email protected].
7. Send any payment related inquiries to: [email protected].
8. Include the Billing address for Instil Bio on all Invoices sent to [email protected]:
Instil Bio, Inc.
3963 Maple Avenue, #350
Dallas, TX 75219
Tel: +1-972-499-3350
EIN: 83-2072195