Terms & Conditions of Sale

Last Updated: January 1, 2023

EXCLUSIVE CONDITIONS.  These terms and conditions of sale (the “Conditions”), together with a quotation (the “Quotation), an invoice (“Invoice”) and/or an order acknowledgment (“Acknowledgment”) sent from BOYD BIOMEDICAL, INC. (“Boyd”) to the person or entity purchasing from Boyd under these Conditions (the “Purchaser”), forms the contract between the parties with respect to products or services listed in the Quotation, Invoice or Acknowledgement (collectively, the “Products”). Any purchase order placed by Purchaser for Products from Boyd (an “Order”), whether based on a Quotation, Invoice, Acknowledgment or otherwise, is expressly made subject to all of the terms and provisions of these conditions. No revision of these Conditions shall be valid and binding unless and until any such revision is in writing and is signed by an authorized representative of Boyd, and no conditions stated by Purchaser in accepting, acknowledging, or amending these Conditions via any method or document shall be binding upon Boyd if in conflict, inconsistent with or in addition to the Conditions contained herein unless and until expressly confirmed in writing by a duty authorized representative of Boyd. Orders may be accepted by Boyd in writing or by performance. Typographical errors in any Quotation, Invoice or Acknowledgment are not binding and are subject to correction.

QUOTATIONS AND PRICES.  All Quotations are informational only and shall be deemed of no further force or effect where an Order is not received by Boyd within 30 days. All Orders are subject to prices included on the Quotation, Invoice or Acknowledgement or otherwise in effect at the time of Acknowledgment, [and to usual tolerances]; provided, however, that any increase in Boyd’s costs in purchasing materials used in manufacturing Products may be added to the purchase price and Purchaser covenants and agrees to pay the same. Boyd may increase prices on thirty days’ notice to Purchaser. All prices are FCA (Incoterms 2010) Lee, MA 01238, unless otherwise stated.  Prices do not include conformance testing and inspection of Purchaser supplied materials, unless specified.  Any special services to be provided will be defined and included in the Order or Acknowledgement.  Additional charges may apply for labor and materials related to supplementary material handling, material preparation, material inspection, trial runs, or which otherwise exceed Boyd’s standard level of service.  A surcharge will be applied to any situation which results in substantial downtime or loss of production efficiency that is a direct result of deficiencies in Purchaser supplied materials. All Purchaser supplied material for use in manufacturing product for Purchaser is to be shipped prepaid to Boyd.  Freight costs incurred by Boyd on Purchaser’s behalf will be invoiced to Purchaser.  Materials which are purchased by Boyd exclusively for the supply of Products to Purchaser are identified on the Quotation or the Acknowledgement.  Unless otherwise specified, Boyd does not maintain finished Products inventory. For each product ordered by Purchaser and held in Boyd inventory, Purchaser will be advised of the item description, stocking levels, cost of the item, and maximum stocking time at the time of Order placement. Purchaser agrees to purchase from Boyd any materials purchased exclusively for the manufacture and sale of Products to Purchaser at the completion of deliveries under the Order.

DELIVERY.  Boyd will ship product as specified in the applicable Order. Boyd will use commercially reasonable efforts to furnish the Products called for in the Quotation, Invoice or Acknowledgment in accordance with the delivery date or schedule stated therein, or if none are stated, in accordance with Boyd’s best delivery date or schedule; provided, however, Purchaser expressly recognizes that in no event shall Boyd be liable for any delays or non-performance for any reason, including, but not limited to, act of God, fire, flood, war, terrorism, government action, accident, labor trouble or shortage, power outages, inability to obtain material, equipment or transportation, outbreak of infectious disease or any other public health crisis, epidemic or pandemic, whether or not declared by any governmental authority, including, without limitation, SARS-CoV-2 and its continuing effects.  Any Products so affected may be eliminated from the amount ordered by Purchaser at the discretion of Boyd without liability, and Boyd may allocate its available supply among its customers, but the Order shall remain otherwise unaffected. Purchaser’s failure to accept delivery of any installment or shipment of Products in the quantities and on the terms specified in the Quotation or to fulfill any other provision of its Order or these Conditions shall constitute a material breach of the entire transaction, in response to which, in addition to any other remedies hereunder or at law, Boyd may, in its discretion, by written notice to Purchaser (a) declare the entire transaction terminated as of the date of the breach, or (b) reduce the installments under the remainder of the Order to that quantity last released by Purchaser. If the Quotation or Order specifies that Purchaser is to supply any material or information on or before certain dates, Purchaser recognizes that Boyd’s estimated delivery date or schedule is established in reliance upon such dates for delivery of such material or information. Any such material shipped to Boyd in advance of such dates may be held by Boyd or returned to Purchaser at Purchaser’s risk and expense. Unless otherwise specified in the Quotation, Invoice or Acknowledgment, freight payment terms shall be FCA (Incoterms 2010) Boyd’s facility in Lee, Massachusetts, USA. Freight prepaid by Boyd shall be added to Purchaser’s invoice.

TITLE AND RISK OF LOSS.  Except as otherwise specified in the Quotation, Invoice or Acknowledgment, title to all Products furnished by Boyd pursuant to the Quotation, Invoice or Acknowledgment shall pass to Purchaser upon delivery by Boyd to a carrier, at which time all risk of loss or damage shall pass to Purchaser.

CHANGE ORDERS.  Except as otherwise specified in the Quotation, Invoice or Acknowledgment, Purchaser shall have the right at any time before delivery, or final acceptance if the Quotation is subject to acceptance, inspection or test by Purchaser, to propose changes in specifications, within the scope of the Quotation, or in methods of shipment, packaging, or place of delivery. All such changes shall be proposed in writing. Boyd may accept or reject changes in its discretion, and if any such proposed change causes an increase or decrease in the cost of performance by Boyd, would require a change in the date or schedule for delivery or otherwise affects any of the provisions of the Quotation or Order, Boyd’s acceptance of any change may be contingent or Purchaser’s acceptance of an adjustment in such terms satisfactory to Boyd. Should Boyd reject any change, or Purchaser fail to accept any adjustment of terms required by Boyd as a condition of acceptance of such change, performance under the Order will continue by the parties without giving effect to the proposed change.

CANCELLATION OR SUSPENSION.  If work under the Order is canceled or suspended by Purchaser, Purchaser agrees to (a) accept delivery of all Products which are either completed or ready for shipment, and (b) with respect to that portion of the work under the Order that is not completed or ready for shipment, upon receipt of such cancellation or suspension notice, reimburse Boyd for: (i) the cost of all material purchased and noncancellable commitments for purchases of Products made in connection with such Order, to the extent such material cannot be readily used in connection with sales to third parties; (ii) all labor and overhead costs incurred in connection with the order; and (iii) the price of all finished Products, and a reasonable value for partially finished Products, produced in connection with such order, to the extent such Products are not readily saleable to third parties.

PURCHASER MATERIAL WASTE.  For Orders in which material is provided to Boyd by Purchaser for processing, and to the extent such Order anticipates a certain level of waste resulting from such conversion, Purchaser acknowledges that the amount of waste will vary with each order depending on circumstances beyond Boyd’s control. Accordingly, Purchaser and Boyd agree that the waste amount established by Boyd in the Quotation or Invoice shall be binding on Boyd and Purchaser regardless of whether the actual amount of waste is less than or greater that the amount specified.

ACCEPTANCE, INSPECTION OR TEST.  If the Products to be provided by Boyd are subject to acceptance, inspection or test by Purchaser, then for any Products found to be other than as warranted under the section of these Conditions entitled “LIMITED WARRANTY”, Purchaser’s sole remedy shall be the right to reject the Products and to require that Boyd, at the election of and in the manner determined by Boyd, either (a) correct, repair or replace the non-conforming Products or (b) refund the purchase price paid for the specific Products found to be non-conforming. Any such acceptance, inspection or test shall be performed by Purchaser within thirty (30) days of receipt of shipment. Goods not rejected within such thirty (30) day period shall be deemed accepted. Where Boyd reasonably believes that Products are not defective, Boyd and Purchaser shall attempt to amicably determine whether such Products are defective, failing which, either party may provide (or cause the other party to provide) the claimed defective Product, together with a description of the claimed defect and all applicable documentation, to a third party laboratory reasonably acceptable to the parties for a determination as to whether the good is in fact defective, which determination will be binding upon the parties.

QUALITY.  Boyd’s and its affiliates’ production, quality, maintenance, and customer service operations are administered in accordance with ISO 9001 and ISO 13485 standards.  Manufacturing of Products is conducted based on written procedures reflecting Boyd’s quality system.  Special quality assurance services and/or documentation that are in addition to Boyd's standard manufacturing procedures to meet Purchaser requirements, if available, may result in additional charges.  All Boyd manufacturing work will be performed in compliance with written procedures and specifications as reflected on the Order or Acknowledgement or as otherwise mutually agreed upon by the parties. Certification of materials will be provided as reflected on the Order or Acknowledgement or as otherwise mutually agreed upon by the parties.

QUALITY AND REGULATORY RESPONSIBILITIES. Boyd is a contract manufacturer and service provider. Boyd provides Products to meet existing Purchaser requirements. Boyd does not establish specifications, other than process control parameters, for these Products. Boyd does not have authority or control over product designs, which are the responsibility of Purchaser. Boyd may, at the request of Purchaser, perform services to support Purchaser’s design and development activities. These services are performed by Boyd under the control, direction, and approval of Purchaser.

INDEMNITY. Purchaser shall defend Boyd and its affiliates and their respective officers, directors, employees and agents from and against all charges, complaints, actions, suits, proceedings, hearings, investigations, claims and demands brought by a third party against any of the foregoing (collectively, “Claims”) and indemnify and hold harmless each of the foregoing against any resulting damages (including all incidental and consequential damages finally awarded by a court), penalties, fines, costs, amounts paid in settlement, expenses, costs and fees (including, without limitation, court costs, reasonable fees of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any Claim) that arise as a result of (a) any gross negligence or willful misconduct of Purchaser, (b) any failure of Purchaser to comply with applicable law, (c) any claim for product liability that results from the use or sale of any Product, (d) all Claims that the manufacture, use or sale of a Product infringes the intellectual property rights of a third party, and (e) any Claim of any government authority relating to such Product, except, in each case to the extent such Claim arises from any gross negligence or willful misconduct of Boyd with respect to the manufacture of the Product.

LIMITED WARRANTY.  Boyd warrants to Purchaser only that all Products to be furnished pursuant to the Order will conform at the time of shipment by Boyd to the description, drawings and specifications of Boyd contained in the Quotation. Notice of any breach of the warranty herein stated must be received by Boyd within thirty (30) days of the date of shipment of the Products claimed to be defective and, in the absence of such notice, Boyd will incur no liability under this warranty.  Boyd’s liability under this warranty shall be limited to, at the election of and in a manner determined by Boyd, either (a) correcting, repairing or replacing any defective Products or (b) refunding the purchase price paid for the specific Products for which breach of warranty is claimed.  Purchaser shall not be entitled to deduct from the price invoiced to it the amount of any claim asserted against Boyd.  BOYD MAKES NO OTHER WARRANTIES AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

LIMITATION OF LIABILITY.  BOYD SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. Boyd’s maximum aggregate liability to Purchaser, including but not limited to any liability for breach of the warranty set forth above or arising out of the use, damage or loss of any material provided by Purchaser to Boyd, whether based on contract or tort, and irrespective of fault, negligence or other liability, shall be limited to the compensation actually paid to Boyd with respect to the Products provided by Boyd to Purchaser relating to such liability. PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO THE RECOVERY OF SUCH COMPENSATION, AND ANY AND ALL OF PURCHASER’S DAMAGES SHALL BE LIMITED TO THE AMOUNT OF SUCH COMPENSATION. Purchaser understands, acknowledges and agrees that the foregoing limitations on the liability of Boyd constitutes an allocation of risk as authorized by the Uniform Commercial Code as adopted in Massachusetts and other applicable Massachusetts law, and that the fees and charges for Products provided by Boyd to Purchaser reflect this allocation of risk and the limitations on liability set forth herein.

INVOICE PAYMENTS.  If the Quotation calls for progress payments or the Order is for Products to be delivered subject to advance or periodic payments from Purchaser, Boyd shall not be obligated to continue performance unless and until it shall have received all payments as and when due.  All other payments shall be due within ten (10) days of the date of Boyd’s invoice, and no prompt payment discounts shall be allowable.  A one and one half percent (1.5%) per month service charge (18% per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments.  All payments shall be made at the direction of and to the location specified by Boyd.  Terms of payment shall be subject to change by Boyd in the same manner as changes in price.  All costs quoted to Purchaser are exclusive of all national, state and local taxes, duties, excises or other charges of any nature which may be imposed by any authority, which Purchaser hereby assumes and agrees to pay.

FINANCIAL RESPONSIBILITY.  If at any time and for any reason the financial responsibility of Purchaser shall become unsatisfactory to Boyd, Boyd reserves the right to change credit terms offered to Purchaser, including the right to require payment in advance for any Order or satisfactory security for payment, and in the absence of such payment or security, to alter or suspend credit on subsequent shipments or deliveries, defer shipments and/or cancel any or all unfilled orders, without liability to Purchaser or impairing the obligation of Purchaser to take and pay for the quantity of Products ordered.

WAIVERS.  Failure of Boyd to enforce at any time or for any previous time any provisions of the Quotation, Invoice, Acknowledgement or these Conditions shall not constitute a waiver of such provision, or limit the right of Boyd thereafter to enforce each and every provision thereof.

DISPUTES.  All questions of the construction and effect of the Quotation, Invoice, Acknowledgment, Order and these Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.  In the event of any dispute with respect to the Order, Boyd shall not be required to proceed with the performance of work without a written amendment to the order, in form and substance satisfactory to Boyd, which provides for additional final progress payments, provisions as to escrow of payments pending any final decision or appeal on any suit or claim, or an indemnification of Boyd by Purchaser for any loss occasioned by Boyd’s continuing to proceed with work.  All costs and expenses incurred by Boyd and Purchaser in prosecuting any such decision, appeal, suit or claim shall be borne by the party incurring such costs.

ASSIGNMENT.  The Order and the rights and obligations of Purchaser are not assignable or transferable by Purchaser, in whole or in part, except with the written consent of Boyd. Boyd may assign any Order in connection with the sale of substantially all of its business to which the Order relates, or to the surviving corporation in a merger, consolidation or reorganization.