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ZAGENO Purchase Order Terms and Conditions

  1. Definitions. The term "Zageno" refers to Zageno Inc., a Delaware corporation, and its divisions, subsidiaries, and affiliates. The term "Supplier" refers to the party designated on the face of the purchase order issued by and includes Supplier's affiliates. The term “Buyers” means individuals or entities that purchase products or services via the Marketplace Platform. The term “Buyer Data” means any information about Buyers made available by Zageno to Supplier. The term “Content” means Product descriptions, catalogs, images, specifications, and other information displayed in the Marketplace Platform for the Supplier’s Products. The term “Marketplace Platform” means the ecommerce marketplace and procurement platform and website operated by Zageno, and other sites and applications owned, operated, or controlled by Zageno. The terms "Product" or "Products" mean the Supplier’s products offered in the Marketplace Platform. The terms “Purchase Order” or “Purchase Orders” mean the orders placed with Supplier. The term "Agreement" refers to an accepted purchase order which will then be subject to the terms and conditions below. Other defined terms have the meanings given to them in the Agreement.
  2. Acceptance of Purchase Order. Zageno is currently or has previously communicated to Supplier a Purchase Order to purchase a quantity of products or services at a defined price and may have also included particular shipping instructions or other specifications required by Zageno. Except as provided in Section 4. Entire Agreement, all purchase orders are subject to and expressly conditioned upon the terms and conditions contained herein and upon Supplier's assent by confirming acceptance of the purchase order. Zageno receives and processes purchase orders from Buyers through the Marketplace Platform and issues Purchase Orders to Supplier for delivery to Buyers. Zageno will provide the applicable Buyer’s name and contact information, the identity and number of Products ordered, the location where the Products will be shipped, and any other specific requirements of the Purchase Order. Supplier will make commercially reasonable efforts to accept or reject orders within 24 hours. The Product catalog ID/SKU, listed safety data sheets, and other specifications of the Products are incorporated into the Purchase Order by reference.  Any additional or inconsistent terms and conditions presented in any acknowledgment or acceptance documents requested from or provided by Supplier are expressly rejected. No variation of these terms and conditions will be binding upon Zageno unless agreed in writing and signed by an authorized representative of Any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute an acceptance by Supplier of the purchase order and these terms and conditions. If a purchase order has been issued by Zageno in response to an offer or quotation by Supplier, and these terms and conditions are additional to or different from any terms of such offer, then the issuance of the purchase order shall constitute an acceptance of such offer subject to the express condition that Supplier assent to these additional and different terms and conditions, and Supplier shall have be deemed to have so assented unless Supplier notifies Zageno to the contrary in writing within 10 days of receipt of the purchase order.
  3. Changes. Zageno reserves the right at any time to change a purchase order in writing, and if such change causes an increase or decrease in price or delivery of Products, an equitable written adjustment will be made.
  4. Entire Agreement. Each purchase order issued by Zageno, including these terms and conditions which are incorporated into each purchase order by reference, as well as any specifications, exhibits or amendments that may be referred to or attached to that purchase order, sets forth the complete and final agreement between the parties with respect to such purchase order, and supersedes all related prior or contemporaneous oral or written communications.
  5. Grant of Distributorship. For Products purchased under this Agreement, Supplier grants to Zageno, and Zageno accepts, the non-exclusive right to promote, market, sell and distribute the Products at prices set by Zageno on the Marketplace Zagenoshall have the right to promote, market, sell, and distribute other articles, including ones that compete with the Products.
  6. Price and Taxes. Supplier agrees to sell the Products to Zageno at the prices indicated on the purchase order. Supplier will be responsible for the reporting, charging, and payment of all taxes related to the Purchase Orders. Upon Supplier’s written request, and where applicable, Zageno will provide Supplier a reseller certificate, reseller certificate number, or other documentation for Supplier to claim an exemption from tax. In such case, no taxes will be imposed. If Zageno is required by Law to make any deduction or withhold from any sum payable to Supplier, then Zageno may deduct such amount from payment provided that (A) along with the payment, Zageno provides an official tax certificate or other evidence of payment issued by the applicable tax authority to Supplier and (B) to the extent that such Law provides a process to seek a waiver or reduction of such deduction or withholdings, Zageno will reasonably cooperate with Supplier in (1) seeking such waiver or reduction and promptly complete and file all pertinent documents and (2) allowing Supplier to claim any tax credit in respect of any taxes so deducted or withheld and paid to the applicable government or tax authority.  If a government authority retroactively determines that a payment made by Zageno to Supplier pursuant to the Agreement should have been subject to any taxes, and Zageno remits such withholding or similar taxes to the government authority, including any interest and penalties that may be imposed, Zageno will have the right (A) to offset such amount against its future payment obligations under the Agreement or (B) to invoice Supplier such amount (which shall be payable by Supplier within 60 days of receipt of invoice).
  7. Invoices and Payment. Supplier will invoice Zageno in the local currency in which the Purchase Order is placed. Each invoice shall include purchase order numbers, Product numbers, descriptions of Products, quantities, unit price and complete billing address for the Products so delivered. Unless otherwise agreed upon by the parties in writing, Zageno will pay all undisputed invoiced amounts within 60 days of receipt of the invoice by
  8. Shipment and Title. Domestic delivery of all Products will be DAP Buyer location and international delivery will be DDP Buyer location (Incoterms 2020 for both). Title and risk of loss in all Products will transfer to Buyer upon Supplier's delivery of such Products to the Buyer’s location, regardless of the freight term specified for transportation purposes. Unless otherwise agreed to by Supplier and Zageno in writing, Supplier reserves the right to choose the carrier, forwarding company, and means of transport. Shipping and handling fees, special packaging materials, carrier surcharges (including, without limitation, fuel surcharges), shipping palettes, environment-controlled shipping, and hazardous material fees imposed by government regulation will be added separately to the invoice, where and to the extent permitted by applicable law. The shipping and other fees that Supplier charges may not be limited to Supplier’s actual transportation costs and may include other shipping and handling costs.
  9. Packaging of Products. Supplier shall pack, package, mark and otherwise prepare all Products for shipment in packaging that is suitable to the Products and according with standards of good commercial practice, acceptable to common carriers for shipment, and adequate to ensure their safe arrival at the ultimate destination. Supplier shall mark all containers with necessary lifting, handling, and shipping information, purchase order number, date of shipment, and the names of Supplier and
  10. Inspection and Acceptance. Buyers will have a reasonable opportunity to inspect the Products after receipt at the destination. Any inspection by Zageno's Buyers does not relieve Supplier of any obligations or liabilities under this Agreement. If any Products do not meet all the requirements of this Agreement, Buyer will have the right to reject such Products at Supplier's expense after giving Supplier the opportunity to inspect the Products. If Supplier elects to inspect the Products, Supplier will either replace or repair them, at its option and expense. Payment for any Products will not be deemed as acceptance of such Products. Supplier will cooperate with Buyer in arranging an inspection by the carrier and filing a freight claim. For all other claims, if Buyer fails to notify Zageno within 30 days of delivery (or Buyer’s non-receipt the Products in the case of non-delivery) of defects or shortages reasonably discoverable upon proper inspection, Buyer will waive any right to make any claim relating to the defective or missing Products.
  11. Regulatory. For each Product sold to Zageno, Supplier shall provide to Zageno: (i) upon request, material safety data sheets and any other documentation reasonably necessary to enable Zageno to comply with all then prevailing applicable federal, state, municipal, local, and other laws and regulations ("Laws") relating to the Products; (ii) upon request, a current and accurate Certificate of Origin pursuant to the specific country of origin criteria and value content descriptions as required by U.S. Customs and Border Protection regulations and notify Zageno in writing whether Supplier participates in a free trade agreement. Additionally, for each Product sold through the Platform and upon request by Zageno, Supplier must provide applicable product certification information including certificates of analysis, certificates of conformity, certificates of quality, certificates of sterility, and certificates regarding animal origin or allergens. Such documentation must be labeled with lot or batch number and must be forwarded to Zageno in electronic format. All such documentation must be provided at time of shipment for each lot or batch number and as applicable to the Product, shall also be supplied with the packaging of such Product.
  12. Ownership of Proprietary Rights.
    1. License to Content. From the date of acceptance of a Purchase Order and for a period of 12 months thereafter, Supplier hereby grants Zageno an irrevocable, non-transferable,  sublicensable, non-exclusive, paid-up, royalty-free license to (i) copy, use and display the Content; and (ii) display and use the trademarks, logos, trade names and service marks associated with the Supplier and Products that are part of the Content (collectively, “Licensed Marks”), in each case, in connection with listing Products on the Marketplace Platform and marketing and advertising the Marketplace Platform, and advertising and promoting Zageno as an authorized distributor of the Products.  Notwithstanding the foregoing, Zageno may retain copies and elements of the Content that (A) Zageno is required to keep for compliance purposes under a document retention policy or as required by applicable Law or (B) has been archived electronically in the ordinary course of business, back-up, security, or disaster recovery systems or procedures.
    2. Zageno acknowledges that Supplier or its licensors own the intellectual property rights relating to the Products and the Content and that no title to such intellectual property rights is transferred to Zageno pursuant to the Agreement.  Zageno will not alter or remove the copyright notice, or any other notices of proprietary rights on the Products.  Supplier is solely responsible for obtaining, maintaining, and enforcing its intellectual property rights in relation to any manufacturer of Products or any other third party, and Zageno will have no obligations or liability in relation to such claims.
    3. License to Buyer Data. Subject to the terms and conditions of the Agreement, Zageno hereby grants Supplier a limited, non-exclusive, non-sublicensable, non-transferable license to use the transaction-related Buyer Data solely as necessary to process, fulfill, and support Purchase Orders accepted by Supplier for the fulfillment of the Purchase Order.  During and After fulfilling the Purchase Order, Supplier will not use or disclose any Buyer Data for any other reason; except that such restriction will not apply to any data or information that may be included in the Buyer Data that was prior or subsequently disclosed to Supplier from a party other than Zageno and that had no duty of confidentiality to the Buyer.
    4. Reservation of Rights. Other than the limited licenses expressly set forth in this Section 12, Supplier reserves all right, title, and interest (including all intellectual property rights) in and to the Content, the Products, and Licensed Marks.  Other than the limited license expressly set forth in this Section 11, Zageno reserves all right, title, and interest (including all intellectual property rights) in and to the Marketplace Platform and Buyer Data.
  13. Warranty and Representations. Supplier represents and warrants i) that, at the time and place of delivery and for the periods of time specified by Supplier’s Product warranty, whichever is longer, the Products meet the specifications listed in the Supplier’s catalog; ii) that they will be transferred with good and merchantable title, free and clear of any encumbrances; iii) that they have been manufactured, packaged, and labeled in compliance with all applicable laws, including disclosure and reporting obligations of the Securities and Exchange Commission related to the use of conflict minerals; (iv) that Products do not infringe upon any patent, trade name, trade dress, trademark, service mark, copyright, or other proprietary rights of third parties; and (v) that Supplier complies with Zageno’s Supplier Code of Conduct (https://zageno.com/zageno-supplier-code-of-conduct/); and (vi) that any violation of the provisions of subparagraph (v) is cause for Zageno to remove Supplier Products from the Marketplace Platform if the breach is not cured or a plan for cure is not provided within 30 days of receiving notice.  Supplier authorizes Zageno to pass through all warranties to Zageno's Buyers. Supplier further warrants that it shall comply (or cause compliance) with all applicable Laws, that it is authorized to enter into this Agreement, and that in so doing it is not in violation of any Laws or any terms or conditions of any contract or other agreement to which it may be a party.

    DISCLAIMER.  TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

  14. Breach of Warranty. Supplier shall promptly replace, or repair, at no cost to Zageno or Buyer, any Product that is, or that a Buyerreturns to Supplier as, defective, or non-conforming, with a non-defective or conforming Product (as applicable) or, at Zageno'soption, credit Zageno's account for all amounts paid with respect to such Product. Supplier shall pay all taxes, transportation, and other costs and expenses incurred by Zageno in the replacement of any defective or non-conforming Product.
  15. Recalls, Returns, and Cancellations. Supplier shall immediately notify Zageno in writing (a "Notification Letter") upon becoming aware of holds or recalls with respect to any Products, or any defect or condition (actual or alleged) which in any way may i) alter the specifications or quality of any Products, ii) render any Products in violation of any Laws, iii) cause revocation of any regulatory approval with respect to any Products or their sale, iv) give rise to a claim against Zageno by any third party, or otherwise negatively affect the salability of any Products. A Notification Letter must include catalog and applicable lot/serial numbers of such Products,and in the event of a corrective action or recall, must contain a description of the issues and the corrective Supplier shall promptly reimburse Zageno for the full price paid for any Products returned to Supplier by a Buyer, and any costs due to a corrective action or recall, including, but not limited to, the replacement, repair, modification, adjustment, relabeling, destruction, or disposal of any such Product. All Products subject to corrective action or recall will be sent directly from Buyers to Supplier. Returns and cancellations of non-defective and conforming Products will be done per the Supplier’s policies.
  16. Insurance. Supplier will, at its own expense, maintain insurance that includes commercial general liability (including product liability) with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. Upon Zageno’s request, Supplier will provide Zageno with a certificate of insurance for the coverage required by this Paragraph.
  17. Indemnification.
    1. By Zageno. Zageno will defend, indemnify, and hold harmless Supplier and its affiliates and each of their respective officers, directors, and employees from and against any losses, liabilities, damages, costs and expenses, including court costs and reasonable attorneys’ fees (collectively, “Losses”) arising out of any third-party allegation, dispute, claim, suit, or proceeding (a “Claim”) related to Zageno’s breach or alleged breach of its confidentiality obligations under Section 18, or an allegation that a Buyer’s authorized use of the Marketplace Platform infringes any intellectual property right of a third party.  This Section states Zageno’s entire obligation and Supplier’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
    2. By Supplier. Supplier will defend, indemnify, and hold harmless Zageno and its affiliates and each of their respective officers, directors, and employees (“Zageno Indemnified party”) from and against any Losses arising out of (i) any Claim related to Supplier’s breach or alleged breach of its confidentiality obligations under Section 18, (ii) any product liability or product defect Claim related to a Product, (iii) any Claim that any Product infringes any intellectual property right of a third party, (iv) any breach of the representations or warranties in this Agreement; (v) use or operation of the Products, including, without limitation, any Losses involving personal injury, death or property damage based on any theory, including strict liability theories, or warranty claim, defect or nonconformity as to any Product, and (vi) wrongful or negligent act or omission by Supplier or its officers, directors, stockholders, agents, servants, employees, representatives or subcontractors relating to the purchase and sale of Products pursuant to this Agreement, except to the extent that such liability is caused by the negligent acts or omissions or willful misconduct of a Zageno Indemnified party.
    3. The indemnified party will promptly notify the indemnifying party of the existence of any Claim giving rise to a claim for indemnification under the Agreement.  The indemnifying party will have a reasonable opportunity to defend the Claim at its own expense and with its own counsel, provided that the indemnified party will always have the right to participate in such defense at its own expense.  If, within a reasonable time after receipt of notice of a Claim, the indemnifying party fails to undertake to so defend, the indemnified party will have the right, but not the obligation, to defend and to compromise or settle (exercising reasonable business judgment) such Claim for the account and at the risk and expense of the indemnifying party.  The indemnified party will make available to the indemnifying party, at the indemnifying party’s expense, such information and assistance as the indemnifying party will reasonably request in connection with the defense of such Claim.
  18. Limitation of Liability. NOTHING IN THIS AGREEMENT IS PURPORTED TO LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR SUCH PARTY TO EXCLUDE OR RESTRICT LIABILITY. SUBJECT TO THIS, AND EXCEPT FOR LIABILITIES ARISING FROM A BREACH OF EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, (i) IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR LOSS OF PROFITS OR REVENUE, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT,TORT, WARRANTY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT, BASED ON A WARRANTY, OR OTHERWISE, WILL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED TO SUPPLIER UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE WHEN THE CLAIM FIRST AROSE.
  19. Confidentiality
    1. Each party acknowledges and agrees that during and after the fulfillment of the Purchase Order, (i) it will use at least reasonable efforts to protect the other party’s Confidential Information (as defined below); (ii) it will not disclose the other party’s Confidential Information to any third party; provided, that, it may disclose such Confidential Information to (A) its employees and agents of the receiving party who may have a need to know such information in the course of their duties; and (B) legal or financial advisors or potential acquirers or financing sources of the receiving party on a need-to-know basis, provided, that, in each case of (A) and (B), such recipients are bound by professional ethical duties or confidentiality obligations at least as restrictive as those in this Section; and (iii) it will not use the other party’s Confidential Information for any reason other than to exercise its rights or perform its obligations under the Agreement. This Section 18 supersedes any prior NDAs between Zageno and Supplier.
    2. “Confidential Information” means any and all confidential or proprietary information of the disclosing party that is communicated to the receiving party, including, without limitation, any information concerning the disclosing party’s products, product design, production, clients, vendors, marketing, and the terms and conditions of this Agreement, except to the extent that the receiving party can show: (i) the information is or becomes generally available to the public through no breach of the Agreement by the receiving party; (ii) the information is subsequently disclosed to the receiving party on a non-confidential basis by a third party, excluding any information disclosed by a third party who is not authorized to disclose the information; or (iii) the receiving party had the information in its possession prior to the time it was obtained from the disclosing party; or (iv) the information is independently developed by the receiving party without use of any information disclosed by the disclosing party.
    3. Notwithstanding anything to the contrary herein, the receiving party may disclose the other party’s Confidential Information as required by judicial process or by Law; provided that, prior to such disclosure, the receiving party must: (i) promptly notify the other party of any actual or threatened legal compulsion of disclosure, and (ii) cooperate with the other party’s reasonable, lawful efforts to protect its interests in the Confidential Information.
    4. Supplier will implement, maintain, and use technical, physical, and administrative safeguards to protect all Buyer Data that are at least as rigorous as accepted industry practices and standards for information security, and as required under all applicable privacy and data security Laws.
    5. Following the termination or expiration of the Agreement, each party will cease using the Confidential Information of the disclosing party, and will, at the election of the disclosing party, return or destroy all copies of any Confidential Information of the disclosing party in the receiving party’s control or possession. Notwithstanding the foregoing, the receiving party may retain Confidential Information of the disclosing party that (i) the receiving party is required to keep for compliance purposes under a document retention policy or as required by applicable Law or (ii) has been archived electronically pursuant to automatic or ordinary course of business archiving, back-up, security or disaster recovery systems or procedures; provided that the receiving party’s confidentiality obligations under the Agreement will continue to apply to such Confidential Information.
  20. Zageno may terminate the Agreement if Supplier: (i) fails to make delivery of the Products within the time specified herein; (ii) fails to replace or correct defective Products in accordance with the provisions of this Agreement or perform in accordance with its obligations hereunder; (iii) becomes insolvent, files or has filed against it a petition in bankruptcy; (iv) makes an assignment of the benefit of creditors; or (v) is affected by a force majeure event which continues for more than 2 consecutive months. Upon termination of the Agreement for any reason, Zageno will promptly delist the Products from the Marketplace Platform, and all rights and obligations of the parties under the Agreement will cease, except each party will perform its obligations with respect to any Purchase Orders placed by Buyers prior to the expiration or termination of the Agreement.
  21. Survival. Any sections of this Agreement that by their nature are intended to survive any termination or expiration of this Agreement (including, without limitation, sections pertaining to warranty, indemnification, and confidentiality), shall survive any termination or expiration of this Agreement.
  22. Force Majeure. If either party is prevented from performing its obligations under this Agreement solely by circumstances beyond the reasonable control and without the fault or negligence of the party obligated to perform (including, without limitation, strikes or other labor difficulties (except those involving either party), war, shortages of power or raw material, Laws or acts of God, upon the prompt notice to the other party detailing such force majeure event and its anticipated duration, the obligations of the party so prevented will be excused during such period of delay, and such party will take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible. The party invoking a force majeure event will notify the other party promptly upon the termination of such event. During the period that the performance by one of the parties of its obligations under this Agreement has been suspended by reason of a force majeure event, the other party may likewise suspend the performance of all or part of its obligations under the Agreement to the extent that such suspension is commercially reasonable.
  23. The waiver or failure of either party to exercise in any respect any right provided in the Agreement will not be deemed a waiver of any other right or remedy to which the party may be entitled.
  24. Construction and Severability. The titles and headings in the Agreement are for ease of reference only and will not affect the meaning or construction of any of the terms of the Agreement. If one or more provisions of the Agreement are held to be unenforceable under applicable Law, then such provisions will be excluded from the Agreement and the balance of the Agreement will be interpreted as if such provision were so excluded and will be enforceable in accordance with its terms.
  25. Applicable Law and Venue. The Agreement and its performance will be governed interpreted, construed, and regulated by the laws of the State of New York, United States, without reference to its choice of law rules. All disputes arising out of the Agreement will be resolved by arbitration in accordance with the International Arbitration Rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a commercial arbitrator selected from the appropriate list of JAMS arbitrators in accordance with such Arbitration Rules and Procedures.  All such arbitration will be conducted in New York, New York.  The arbitrator will have the authority to grant specific performance as well as any other remedy authorized by Law and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine.  The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees, and all other expenses) incurred in connection with the arbitration.  Notwithstanding the foregoing, each party will have the right to institute an action for preliminary injunctive relief without first seeking recourse to arbitration to avoid immediate and irreparable harm in the state or federal courts located in New York, New York, and each party hereby submits to the in personem jurisdiction and venue of those courts and agrees that any such dispute may be filed in those courts.
  26. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees. Neither party may transfer, assign, or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party, except for any transfer, assignment, or delegation, in whole or in part, to its respective parent, subsidiaries or other affiliates, or to a successor entity.
  27. Nature of Relationship. Neither party is authorized to serve as an agent for the other party, and neither party will have the power, nor claim or represent to any third party that such party has the authority to act for or bind the other party in any manner.

    Last edit: July 25, 2022