PURCHASE ORDER TERMS AND CONDITIONS
FOR PURCHASE ORDER FORMS ISSUED BY NOVOCURE INC.
Novocure Inc., a Delaware corporation (“Novocure”) hereby retains the provider of goods and/or services to Novocure (“Provider”) set forth in the purchase order form into which these terms and conditions are incorporated by reference (including attachments thereto, the “Purchase Order Form”) on the terms and conditions hereinafter stated (including terms and conditions that are incorporated herein by reference, the “Purchase Order Terms and Conditions,” and together with the Purchase Order Form, the “Purchase Order”) to supply the materials, supplies, items or equipment (the “Products”) and/or perform the services (the “Services”), as the case may be, described in the Purchase Order Form. Nothing in this Purchase Order shall be interpreted to prevent Novocure from obtaining from any other third party, or providing to itself, any or all such Products or Services or from ceasing to use Provider to provide such Products or Services.
In the event of a conflict or inconsistency between any of the provisions of these Purchase Order Terms and Conditions and any of the provisions of a written agreement between Novocure and Provider (“Agreement”) covering the subject matter of this Purchase Order, the provisions of the Agreement shall govern and supersede any such conflicting or inconsistent provisions of this Purchase Order. In the absence of an Agreement, this Purchase Order constitutes the entire agreement of the parties with regard to the subject matter, and supersedes all previous written or oral representations and understandings between Novocure and Provider and any different or additional terms and conditions. In the event of a conflict or inconsistency between any of the provisions of the Purchase Order Terms and Conditions and any provisions of the Purchase Order Form covering the subject matter of this Purchase Order, the provisions of the Purchase Order Terms and Conditions shall govern and supersede any such conflicting or inconsistent provisions of the Purchase Order Form.
Provider’s acceptance of this Purchase Order may be in writing, email, fax, or other manifestation of acceptance such as, but not limited to, Provider’s initiation of performance, or through Provider’s provision of any Products or Services covered by this Purchase Order, or through Provider’s acceptance of any payment made pursuant to this Purchase Order, whichever occurs first. Except to the extent expressly accepted in writing by Novocure, Novocure hereby affirmatively rejects any different or additional terms and conditions proposed by Provider or contained in any acknowledgement, invoice or other form of Provider, notwithstanding Novocure’s acceptance or payment for any Products or Services or any similar act of Novocure.
This Purchase Order is not exclusive, and Novocure may engage other vendors to perform the same or similar products and services.
1) PRICE; INVOICING; PAYMENT
(a) Price. The price for the Products shall, as applicable, cover the Products including all accessories and packaging, and no extra charge of any kind, including charges for boxing, packaging or crating, shall be allowed unless specifically agreed to in advance in writing by Novocure. The price for Services shall cover all activities required to perform the Services as contemplated in this Purchase Order.
(b) Taxes. The amount of taxes imposed will not be stated on the Purchase Order Form, but will be included and separately itemized on any related invoice and all amounts shown on such invoice will include all federal, state and local sales, use, excise and similar taxes applicable to the Products or Services sold or provided under this Purchase Order or the materials used in connection therewith; and Provider shall pay any and all such taxes, except taxes required by Law (as defined below) to be paid or borne by Novocure. Notwithstanding the foregoing, each of Novocure and Provider shall bear sole responsibility for all taxes of any kind imposed by a federal, state, local, or foreign governmental authority, directly on said party, including, but not limited to, those on, or measured by or referred to as income, gross receipts, financial operations, franchise, profits, license, excise, premium, windfall profits taxes, duties or similar fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by such governmental authority with respect to that party’s income, operations, employment, property (whether owned, leased or deemed to be owned or leased) or business operations.
(c) Invoice; Payment; Billing Disputes. Unless otherwise specified by Novocure, Provider shall invoice Novocure for the Products or Services provided under this Purchase Order only after the Products are received by or the Services are rendered to Novocure. Final payment shall not be made until the Products or Services provided meet the requirements specified in this Purchase Order. Unless otherwise specified by Novocure on the applicable Purchase Order Form, payment terms shall be net ninety (90) days after Novocure’s receipt of the applicable invoice submitted in accordance with, and containing any information specified on, the applicable Purchase Order Form. Novocure may set off any amount owing from Provider to Novocure against any amount payable by Novocure. Novocure may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes. Such withholding of payment during any dispute shall not be the basis of a Novocure default hereunder. Any such pending billing disputes shall not be cause for Provider’s nonperformance of Services and/or non-delivery of Products, as the case may be, under this Purchase Order or any other Purchase Order Agreement between Novocure and any of its Affiliates (as defined below) on the one hand and Provider and any of its Affiliates on the other so long as the parties continue to work to resolve the issue in good faith. Payment by Novocure shall not result in a waiver of its rights under this Purchase Order. Further, Provider shall perform its obligations under this Purchase Order in a manner that meets or exceeds the service levels, if any, set forth in this Purchase Order. In order to be eligible for reimbursement by Novocure of reasonable out-of-pocket travel and travel-related expenses incurred by Provider personnel in providing the Products and/or Services hereunder, all such expenses incurred by Provider: (i) must have been pre-approved by Novocure in writing prior to the date such expenses are incurred; and (ii) must be in compliance with Novocure’s travel and entertainment guidelines, as supplemented and/or amended from time to time. Provider will (i) provide truthful and complete documentation supporting, in reasonable detail, the delivery of the Products or the Services performed and any expenses incurred, (ii) maintain true, accurate, and complete invoices, reports, statements, books, and other records, and (iii) secure pre-authorization in writing from Novocure for any extraordinary expenditure. As used in this Purchase Order, “Affiliates” means any entity that controls, is controlled by or is under common control with, another entity.
2) DELIVERY; CANCELLATION; INSPECTION; ACCEPTANCE
(a) Product Delivery. Provider shall be responsible for packaging, loading and shipping the Products in accordance with any packaging specifications, shipping methods and other related requirements set forth in this Purchase Order or otherwise communicated in writing to Provider by Novocure. If no such specifications, methods or requirements are so specified, Provider shall be responsible for packaging, loading and shipping the Products in a manner sufficient to prevent damage and loss to the Products during shipment. Shipments must equal quantity ordered, unless otherwise agreed to by Novocure in writing. Provider shall provide a packing list to Novocure for all shipments referencing this Purchase Order number. Unless otherwise specifically provided for herein, Provider shall be responsible for freight and delivery to the destination specified on the applicable Purchase Order Form. All freight and delivery charges will be borne by Provider, unless specifically agreed to in advance, in writing by Novocure. Provided Novocure agrees to accept such freight and delivery charges in advance, the amount allocated for product freight delivery will be not be included in the Purchase Order Form but separately stated on the related invoice, and all amounts shown on such invoice will include all packaging, loading and shipping applicable to the Products or Services sold or provided under this Purchase Order or the materials used in connection therewith. Under no circumstances will Provider include in such charges, or will Novocure bear, additional or charges related to the freight and delivery of covered Products and/or Services, including, but not limited to, fuel surcharges, energy surcharges, or seasonal surcharges, whether originated by Provider or on behalf of any third party. Unless the Purchase Order Form states otherwise, Provider shall bear all risks of loss and damage to the Products until final acceptance by Novocure at Novocure’s “ship to” destination specified on the applicable Purchase Order Form. Further, Provider shall bear the same risks with respect to any Products rejected by Novocure or as to which Novocure has revoked its acceptance from the time of such rejection or revocation.
(b) Cancellation. The delivery of Products and/or Services shall strictly comply with the delivery date or delivery schedule, if any, specified in the Purchase Order Form, or if not so specified, then as otherwise specified in writing by Novocure. If at any time it appears that Provider will not meet such delivery date or schedule, Provider shall promptly notify Novocure in writing of reasons for, and the estimated duration of, the delay. If requested by Novocure, Provider shall ship delayed Products by means to avoid or minimize delay to the maximum extent possible, any added cost to be borne by Provider. In addition to its other remedies, Novocure reserves the right to cancel all or any part of any Purchase Order for the undelivered Products or unperformed Services if Provider does not deliver the Products or perform the Services as specified in this Purchase Order.
(c) Changes. Provider acknowledges and agrees that Novocure may provide Provider with a written request for changes to the Services and/or Products, as the case may be, from time to time. Novocure and Provider shall review all such requests to determine the effect, if any, such requested changes may have upon fees payable, delivery schedule, and other terms and conditions of this Purchase Order. After such effects have been assessed, Novocure may decide, in its sole discretion, whether to implement such changes. If Novocure elects to implement such changes, it will issue a revised Purchase Order Form, unless the parties enter into a written agreement signed by both parties that describes such changes, which such agreement or such revised Purchase Order Form shall constitute an amendment to this Purchase Order.
(d) Inspection; Acceptance of Products and Services. All Products or Services delivered or performed shall be subject to final review, inspection and acceptance by Novocure, notwithstanding any payment or initial inspections. Acceptance of Products and Services shall occur when the Products or Services delivered under this Purchase Order have been inspected by Novocure and determined to meet the requirements specified in this Purchase Order. Novocure shall make such inspection within a reasonable period of time (not to exceed ninety (90) days) after the applicable Products have been delivered or Services completed by Provider. For the avoidance of doubt, there shall be no time restrictions applicable to Novocure’s provision of notice of rejection of any Product with respect to any latent defects, which shall include any defects that may not be detected by Novocure through standard inspection and testing of a Product sample or that may affect only a portion of Product. If the Products or Services do not meet such requirements, Novocure shall give Provider detailed written notification of the deficiency or non-conformance and a direction to Provider to promptly (and in any event within thirty (30) days): (i) repair, replace or re-perform the deficient or non-conforming Products or Services; or (ii) cease all Provider activities related to Products or Services; and/or (iii) refund to Novocure all fees paid by Novocure hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Any such corrected Products or Services shall be subject to the same inspection and acceptance terms provided for in this Section 2(d). If Novocure directs Provider to repair, replace or re-perform the deficient or non-conforming Products or Services and Provider fails to complete same within thirty (30) days after Novocure’s direction, then Provider shall refund to Novocure all fees paid by Novocure hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Inspection and acceptance of any Products or Services by Novocure shall not affect Provider’s warranties or Novocure’s remedies under Section 6(a) below. The foregoing shall not be construed to limit or exclude any other rights or remedies of Novocure at law or in equity.
3) COMPLIANCE WITH LAW, HEALTH AND SAFETY MATTERS
(a) In connection with any Services provided under this Purchase Order, Provider represents that it will not provide any payment, meal, gift or any other thing of value to a “Healthcare Provider” on behalf of Novocure. For the purposes of this Purchase Order, “Healthcare Provider” means as any individual who is licensed to prescribe prescription medication or who can otherwise treat or assist in the treatment of patients, including but not limited to, physicians, physician assistants, nurse practitioners, nurses, pharmacists, pharmacy directors, counselors, social workers, medical directors for health plans, health plan administrators, office staff, medical residents, medical students, interns, fellows and Pharmacy and Therapeutics Committee members, as well as institutions affiliated with such individuals, including but not limited to hospitals, clinics, pharmacies and health plans. Provider acknowledges that Novocure conducts its relationships with Healthcare Providers in compliance with applicable laws and regulations (including, without limitation, the U.S. Anti-Kickback Statute, 42 U.S.C. §1320a-7(b)), and the AdvaMed Code of Ethics on Interactions with Healthcare Professionals (the “AdvaMed Code”) promulgated by the Advanced Medical Technology Association. Provider, in the performance of Services on behalf of Novocure, shall conduct its relationships with Healthcare Providers, if any, in accordance with all applicable laws and the AdvaMed Code. Provider will not engage the services of Healthcare Providers in connection with this Purchase Order.
(b) Novocure and Provider each agree that they shall comply with all applicable federal, state and local laws and regulations in performance of their respective obligations pursuant to this Purchase Order, including, without limitation and as applicable, laws and regulations related to promotion of medical devices, fraud and abuse, insider trading, privacy, discrimination, confidentiality, false claims and prohibition of kickbacks. Without limiting the generality of the foregoing:
(1) Privacy: Provider and Novocure each agrees to comply with all applicable federal, state and local laws and regulations relating to the privacy of patient health information, including, but not limited to, the Standards for Individually Identifiable Health Information, 42 C.F.R. §§160 and 164 (the “HIPAA Privacy Regulation”) promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996.
(2) Dissemination of Materials: Provider acknowledges that Novocure is subject to legal and regulatory restrictions concerning the dissemination, distribution or use of materials related to medical devices. Accordingly, except as required to perform any Services hereunder, Provider shall not disseminate, distribute or use any materials prepared in the course of performing any Services without the prior express, written permission of Novocure. To the extent that Services require Provider to distribute materials, such materials must be approved by Novocure for the specific purpose(s) for which Provider is distributing such materials.
(3) Adverse Events: Provider acknowledges that Novocure is required to comply fully and promptly with all regulatory safety reporting requirements regarding its products. In accordance with Novocure policies and procedures, Provider agrees that if in connection with its performance of any Services it receives information relating to adverse events (AE), product complaints (PC), and/or other special safety topics, and any other safety information as reasonably requested by Novocure, Provider will inform Novocure’s Medical Affairs department of any information regarding Adverse Events it receives, within twenty-four (24) hours of receipt at the following address: Novocure Inc., Attention: Medical Safety, DeviceSafety@novocure.com; phone: 855.281.9301.
(4) FCPA. Provider further acknowledges that Provider is aware of and shall comply with the provisions of the Foreign Corrupt Practices Act, 15 USC §78dd-1 thru 3, as amended, and any laws of any jurisdiction relating to commercial bribery. By way of example and not limitation, except as permitted by law, Provider shall not offer, pay, or promise to pay, any money or thing of value, directly or indirectly, to any person who is a government official for the purpose of obtaining or retaining any business. For these purposes, “government official” shall include any employee of any governmental entity, political party, or public international organization, and political party official, or any candidate for public office in any jurisdiction.
(5) Securities: Provider acknowledges that during the performance of Services under this Purchase Order it may come into possession of certain material information about Novocure or its Affiliates that has not yet been disclosed to the public. Provider agrees to comply with the rules and regulations of the United States Securities and Exchange Commission, including those relating to insider trading in connection with such material, non-public, information about Novocure or its Affiliates.
(c) The quality of the Products and the standard of Services to be delivered and/or provided to Novocure shall be performed to the reasonable satisfaction of Novocure and shall be performed in accordance with generally accepted professional standards and, if any, the specifications set forth in the Purchase Order Form. Provider shall ensure that, as applicable, the employees and agents assigned to perform Services and deliver Products under this Agreement understand Novocure’s business; the industry and market within which Novocure operates; and basic industry laws, regulations and guidances, including relevant regulations and/or guidances issued by the U.S. Food and Drug Administration (“FDA”), guidances issued by the U.S. Department of Health and Human Services Office of the Inspector General (“OIG”) and the Advanced Medical Technology Association (“AdvaMed”). Provider shall ensure that all employees and agents of Provider who are assigned to perform Services under this Purchase Order are qualified and have sufficient expertise, training, and experience. Provider shall ensure that such employees and agents are made aware of and are bound to comply with Provider’s obligations contained in this Purchase Order.
(d) Provider represents and warrants that: (i) compliance with the terms of this Purchase Order and performance of all Services and Delivery of all Products do not and will not breach or conflict with any other agreement or arrangement to which Provider is a party; (ii) during performance its obligations under this Purchase Order, Provider will not disclose to Novocure, or induce Novocure to use, any confidential or proprietary information of a third party without appropriate consent or license from such third party and (iii) at all times in performance of its obligations under this Purchase Order, Provider will either (a) comply with and will cause its employees and subcontractors working on Provider’s behalf in its performance to comply with, the relevant provisions of the Novocure Code of Conduct found at https://www.novocure.com/corporate-governance/ (click on “View” under the caption “code of conduct”) or (b) comply with the terms of Provider’s own code of conduct, which Provider hereby represents and warrants has requirements substantially similar to Novocure’s Code of Conduct. Novocure is committed to sourcing its materials and services in a manner that benefits people and the environment. Novocure expects its providers to support and respect the protection of human rights and ensure they are not complicit in human rights abuses. Novocure expects its providers to follow universally accepted employment practices and to prioritize health and safety. Providers are expected to comply with all applicable labor laws, including those related to wages, overtime, vacations, absences, disability, maximum working hours and legal right to work. Providers are also expected to comply with all reporting obligations regarding the abolition of child labor. Providers must not use any bonded or forced labor, slavery, involuntary prison labor or human trafficking.
4) AUDIT
Upon reasonable notice in writing and at reasonable times during Provider’s normal business hours, not more than once per calendar year (or more frequently for cause), Novocure shall have the right to audit and examine all contracts, documents, correspondence, books, time sheets, account books and records and other material (except for individual payroll and personnel records and Provider overhead) that relate to Novocure’s account. A representative duly authorized by Novocure may perform this audit. To the extent Novocure utilizes the services of any third party representative (including any certified public accountants) to perform this audit, the selection of such third party representative shall be approved by Provider, such approval not to be unreasonably withheld by Provider. The expense of such audit or examination shall be borne by Novocure. Any such representative and/or certified public accountants conducting the audit shall be required to sign an appropriate non-disclosure agreement, reasonably acceptable to Provider, prior to participating in any such audit. Any such audit shall include the right to inspect Provider’s timesheet records; provided, however, that such time sheets may be redacted by Provider to exclude any confidential or proprietary information of Provider or any of its other clients. The audit rights provided herein shall survive any termination or expiration of this Agreement.
5) CONFIDENTIAL INFORMATION
(a) General Obligations. Provider understands and acknowledges that, in the provision of Services or Products pursuant to this Purchase Order, Novocure may disclose to Provider or Provider may otherwise obtain information that Novocure (or any of its subsidiaries, affiliated companies, vendors or customers) considers confidential. Such information includes, without limitation, the results of Services, the terms of this Purchase Order, any technical or proprietary information, including but not limited to inventions, know-how, trade-secrets, methods, techniques, processes, designs, drawings, diagrams, formulae and analysis, clinical data, and any business information, including but not limited to price lists, customers lists, costs analyses, reports, surveys and market information and data, whether communicated in tangible or intangible form, and any analyses, compilations, comparisons studies or other work prepared by or for Provider containing any such confidential or proprietary information (“Confidential Information”) but does not include (i) information which, after disclosure, becomes available to the public by publication or otherwise, other than by breach of this Purchase Order by Provider; (ii) information that Provider can establish by prior written record was already known to it or was in its possession at the time of disclosure and was not acquired, directly or indirectly, from Novocure; or (iii) information that Provider obtains from a third party, provided however, that such information was not obtained by said third party, directly or indirectly, from Novocure under an obligation of confidentiality. Provider shall keep Confidential Information strictly confidential as competitive-sensitive information. Provider shall exercise the same degree of care for the Confidential Information of Novocure as it uses to protect its own confidential information, but in any event, not less than reasonable care, including, without limitation, the requirements of this Purchase Order. Provider shall not disclose Confidential Information without the prior express written consent of Novocure to any person or entity not a party to this Purchase Order (other than as required by applicable Law) in any manner whatsoever, in whole or in part, and shall not be used by Provider other than in connection with the purposes permitted by this Purchase Order. Confidential Information may be disclosed by Provider only to the directors, officers, employees and agents (including subcontractors) of Provider who have a legitimate need to know such Confidential Information for purposes of carrying out Provider’s obligations under this Purchase Order, and are subject to obligations for the protection of the Confidential Information no less protective than the terms of this Purchase Order. Provider shall be responsible for any breach of this Section 5 caused by any such director, officer, employee or agent (including any subcontractor of Provider).
(b) Disclosure of Confidential Information. Notwithstanding the restrictions set forth above, if Provider is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) to disclose any Confidential Information, Provider will provide prompt notice to Novocure of such request, in advance of any such disclosure.
(c) Return or Disposal of Confidential Information. Upon completion or termination of this Purchase Order, and at Novocure’s written request at any time, Provider shall promptly return to Novocure or securely destroy (at Novocure’s election) all copies of all documents or other materials, in whatever form, that contain Confidential Information and are in the possession or under the control of Provider or any Provider personnel and shall certify to Novocure in writing that Provider has done so in accordance with applicable laws.
(d) Any breach of this Section 5 may cause Novocure substantial and irreparable harm and, therefore, in the event of any such breach, in addition to other remedies that may be available to it, Novocure shall have the right to seek specific performance and other injunctive and equitable relief.
6) ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Products and Services. Provider represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall until eighteen (18) months after delivery (or performance) by Provider (or for such longer warranty period as provided by Provider): (i) be free from defects in design, workmanship and materials; (ii) be of the kind, quantity and quality described in, and conform with, the requirements specified in this Purchase Order; (iii) be fit for the purpose intended; (iv) perform in the manner specified; (v) in the case of Services, reflect the highest standards of professional knowledge and judgment; (vi) designed and constructed to be safe and without risk to human health; (vii) be free of any claim of misappropriation or infringement by a third party; (viii) if the Products are software, be the most current releases generally available to third parties at the time of delivery; and (ix) comply with all other requirements of this Purchase Order. Provider represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall, for a perpetual duration (A) be free and clear of all liens, claims and encumbrances by the date delivered to Novocure; (B) If the Product is software, it shall not contain any (1) "back door," "time bomb," "drop dead" device or other software routine designed to disable the software automatically with the passage of time or under the positive control of any person or (2) virus, "Trojan horse," "worm" or other software routines or hardware components designed to permit unauthorized access, to disable, erase or otherwise harm the software, hardware or data, or to perform any other similar actions. All Provider personnel shall be properly educated, trained and qualified to provide the applicable Products and/or Services and shall be properly instructed on how to use and protect Confidential Information to ensure compliance with Provider’s obligations under Section 5. Provider shall disclose in writing to Novocure any use of Artificial Intelligence (AI) technologies, including but not limited to machine learning, natural language processing, and generative AI tools, in the performance of its Services under this Purchase Order. Such disclosure shall include a description of the specific AI technology used, the purpose of its use, and how it will be applied to the Services rendered. Provider shall not, and shall ensure its personnel, subcontractors, and agents do not, use any data, content, or materials provided by Novocure, or derived from Novocure’s confidential information to train, fine-tune, or otherwise improve any AI models or platforms, whether commercial, open source, or proprietary. Provider acknowledges and agrees that any use of AI must comply with the confidentiality, data security, and data protection obligations set forth in this Purchase Order. Under no circumstances shall Novocure data, including Confidential Information, be input into or processed by any AI system in a manner that may result in disclosure to, or retention by, the AI provider or third parties.
(b) Global Trade Control Laws. The parties acknowledge that Products and Services covered by this Purchase Order and any Agreement may be subject to applicable economic sanctions, import, and export control laws, regulations and orders (herein “Global Trade Control Laws”), and Provider agrees to perform all Services under this Purchase Order or any Agreement in full compliance with all applicable Global Trade Control Laws.
(c) Conflicts. The execution, delivery and performance of this Purchase Order by Provider does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, and does not violate any law or regulation of any court, governmental body or administrative or other agency having authority over Provider. Provider is not currently a party to, and during the term of this Purchase Order will not enter into, any agreements, oral or written, that are inconsistent with its obligations under this Purchase Order.
(d) Authority. Provider is validly existing and in good standing under the Laws of the jurisdiction of its organization and has the power and authority to enter into this Purchase Order. This Purchase Order has been duly executed and delivered by Provider and constitutes the valid and binding obligation of Provider, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Purchase Order have been duly authorized by all necessary action on the part of Provider, its officers and directors.
(e) No Actions Pending. There is no action, suit or proceeding, at law or in equity, before or by any court or governmental authority, pending or, to the best of Provider's knowledge, threatened against Provider, wherein an unfavorable decision, ruling or filing would materially adversely affect the performance by Provider of its obligations hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the enforceability of this Purchase Order, or any other agreement or instrument entered into by Provider in connection with the transactions contemplated hereby. In the event Provider becomes aware of such action, suit or proceeding, Provider shall immediately notify Novocure.
(f) Cooperation/Coordination with Third Party Vendors. Provider acknowledges that Novocure may, during the course of this Purchase Order, work with one or more other third party consultants and service providers from time to time in connection with this Purchase Order. Provider shall reasonably cooperate with all such third parties as Novocure may request from time to time.
7) INDEMNIFICATION
(a) Indemnification of Novocure. Provider agrees to indemnify, defend and hold Novocure and its Affiliates harmless, together with their respective directors, officers, employees, and agents, from and against any and all claims, losses, demands and actions and any liabilities, damages or expenses (including court costs and reasonable attorneys’ fees) (“Damages”), to the extent the Damages are caused by (i) the negligent acts or omissions or intentional misconduct of Provider, its Affiliates or any of their respective employees, agents or subcontractors in the performance or delivery of the Products and/or Services provided under this Purchase Order, or (ii) a breach of any representation or warranty set forth in this Purchase Order by Provider provided that Provider’s obligation under this Section 7(a) is conditioned upon the following: (w) upon becoming aware of the Claim, Novocure provides to Provider prompt written notice of the Claim; (x) Novocure gives to Provider sole authority and control of the defense and/or settlement of the Claim (provided that no such settlement shall include an admission of liability or guilt by Novocure without Novocure’s prior written consent), (y) Novocure provides all reasonable information and assistance requested by Provider to handle the defense and/or settlement of the Claim; and (z) Novocure shall take all reasonable steps to mitigate any potential damages and expenses. Novocure, at its expense, may hire legal counsel of its choice to participate in an advisory capacity related to discussions, negotiations, or proceedings of the Claim, but such legal counsel shall not, without the prior written consent of Provider, participate in any other capacity with respect to the Claim.
(b) Indemnification of Provider. Novocure agrees to indemnify, defend and hold Provider and its Affiliates harmless, together with their respective directors, officers, employees, and agents, from and against any and Damages to the extent the Damages are caused by (i) the negligent acts or omissions or willful misconduct of Novocure or its Affiliates, or any of their respective employees, agents, or subcontractors in the performance of Novocure’s obligations under this Agreement or (ii) a breach of any representation or warranty set forth in the Agreement by Novocure provided that Novocure’s obligation under this Section 7(b) is conditioned upon the following: (w) upon becoming aware of the Claim, Provider provides to Novocure prompt written notice of the Claim; (x) Provider gives to Novocure sole authority and control of the defense and/or settlement of the Claim (provided that no such settlement shall include an admission of liability or guilt by Provider without Provider’s prior written consent), (y) Provider provides all reasonable information and assistance requested by Novocure to handle the defense and/or settlement of the Claim; and (z) Provider shall take all reasonable steps to mitigate any potential damages and expenses. Provider, at its expense, may hire legal counsel of its choice to participate in an advisory capacity related to discussions, negotiations, or proceedings of the Claim, but such legal counsel shall not, without the prior written consent of Novocure, participate in any other capacity with respect to the Claim.
(c) Indemnification of Novocure Regarding Intellectual Property. Provider shall indemnify, defend and hold Novocure and its Affiliates harmless, together with their respective directors, officers, employees, and agents, from and against any claims brought by any third party against any of them that alleges infringement of any patent, trademark, copyright, or other intellectual property or proprietary right (including, but not limited to, misappropriation of trade secrets) (each, an “IP Claim”) based in whole or in part upon any Product or Services provided under this Purchase Order, and Provider shall pay all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees) incurred in connection with any such claims or actions; provided that Provider’s obligation under this Section is conditioned upon the following: (i) upon becoming aware of the IP Claim, Novocure provides to Provider prompt written notice of the IP Claim; (ii) Novocure gives to Provider sole authority and control of the defense and/or settlement of the IP Claim (provided that no such settlement shall include an admission of liability or guilt by Novocure without Novocure’s prior written consent), (iii) Novocure provides all reasonable information and assistance requested by Provider to handle the defense and/or settlement of the IP Claim; and (iv) Novocure shall take all reasonable steps to mitigate any potential damages and expenses. Novocure, at its expense, may hire legal counsel of its choice to participate in an advisory capacity related to discussions, negotiations, or proceedings of the Claim, but such legal counsel shall not, without the prior written consent of Provider, participate in any other capacity with respect to the IP Claim. However, Provider will have no obligation hereunder for any such IP Claim if such IP Claim arises out of or is related to (a) the modification of Products by any party other than Provider; or (b) the combination of the Products and/or Services with any other equipment, firmware or software not supplied or approved by Provider, where the IP Claim in question is directed at the combination.
(d) Survival. The indemnification provided herein shall survive any termination or expiration of this Purchase Order.
8) INSURANCE
Prior to commencement of any work under this Purchase Order, Provider shall, at its sole expense, acquire and/or maintain the types of insurance and coverage levels as are reasonable and customary in the industry in which the Provider operates with respect to the transactions contemplated by this Purchase Order.
9) LIMITATION OF LIABILITIES
NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, CONSEQUENTIAL DAMAGES (SPECIFICALLY EXCEPTING THOSE CONSEQUENTIAL DAMAGES ARISING FROM EACH PARTY’S OBLIGATION TO INDEMNIFY THE OTHER FOR LIABILITY ARISING OUT OF OR RELATING TO THIRD PARTY CLAIMS IN ACCORDANCE WITH SECTION 7) INCIDENTAL, INDIRECT, SPECIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS PURCHASE ORDER.
10) TERM AND TERMINATION
(a) Term. This Purchase Order shall commence upon Provider’s acceptance of this Purchase Order and shall continue through Novocure’s acceptance of such Services or Products, as may be further specified in this Purchase Order.
(b) Termination. In addition to Novocure’s termination rights set forth elsewhere herein, Novocure may terminate this Purchase Order, in whole or in part, in its sole discretion: (i) upon fifteen (15) days prior written notice to Provider for any reason; (ii) immediately upon written notice to Provider if Provider breaches this Purchase Order; (iii) if reasonable grounds for insecurity arise with respect to Provider’s performance and Provider fails to furnish adequate assurances within five (5) days after written demand by Novocure for such assurance; or (iv) immediately upon written notice to Provider if Provider becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Provider shall cease to provide the cancelled Services or Products, as the case may be, to Novocure as soon as commercially practicable after receiving such notice.
(c) Termination for Breach of Laws. Novocure may terminate this Purchase Order effective immediately upon notice to Provider if Provider breaches any of the representations, warranties, covenants, or agreements set forth in Section 3(b). If this Purchase Order is so terminated, notwithstanding clause (d)(ii) below, Novocure shall not be responsible for any payments due to Provider or another party, even if activities have already occurred.
(d) Effect of Termination/Expiration. Upon termination or expiration of this Purchase Order: (i) Novocure shall be entitled to the ownership, possession, use and license of any and all work in process under this Purchase Order to which it is entitled pursuant to Section 11 below; (ii) Provider shall invoice Novocure for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under this Purchase Order through and including the date of any such termination or expiration; and (iii) Provider shall comply with its obligations under Section 5(c) above.
(e) Survival. The provisions of Sections 1(b) and (c), 4 –7, 9, 11 – 12 and any other provisions which are expressly or by implication intended to continue in force after such termination or expiration shall survive the termination of this Purchase Order.
11) INTELLECTUAL PROPERTY
(a) Provider shall retain all right, title and interest in and to any and all materials, work and work product owned or developed by Provider prior to, or independently from, its engagement hereunder or developed or obtained by Provider in the general conduct of its business (“Provider Property”). Provider hereby grants Novocure a perpetual, royalty free, worldwide, non-exclusive license, with the right to assign or sublicense, in and to any and all Provider Property to allow Novocure to use Products and/or any results of the Services to develop, market, promote, make, use, sell, and import Novocure products or any other purpose consistent with this Purchase Order.
(b) Provider represents and warrants that all material provided to Novocure or used on behalf of Novocure pursuant to this Purchase Order (“Deliverables”) shall either (i) not infringe the copyright of any third party, or (ii) be licensed at no cost to Novocure under a third party release. Novocure shall have the right, in its discretion, to examine copies of releases obtained by Provider. Provider further represents and warrants that Novocure shall be free to use such material without interference by, or claims of, third parties subject to any limitations on usage contained in the aforesaid releases, licenses or other documentation and brought to the attention of Novocure in writing.
(c) Except for Provider Property as defined above, all Deliverables whether created by or on behalf of Provider, Novocure, or any combination thereof hereunder, and all draft versions thereof, whether used or unused, (“Work Product”) shall be property of Novocure and shall be delivered to Novocure at any time upon Novocure’s request, or no later than the termination of this Purchase Order. Provider hereby transfers and assigns to Novocure any copyright in such Work Product, including all of the exclusive rights comprised in such copyright, whether published or unpublished. Subject to the provisions of Section 7(b), Provider shall ensure that all individuals working on such Work Product have assigned to Provider their rights to such Work Product. Provider agrees to execute any documents necessary to assign to Novocure Provider’s full copyright interest in the Work Product either solely or jointly with others for Novocure pursuant to this Agreement. No restrictions will be placed on Provider by third parties with respect to any Work Product without the prior written consent of Novocure.
(d) Except for Provider Property as defined above, all information, inventions, discoveries, patent rights, trademarks and copyrights which result from any Services performed by or on behalf of Provider pursuant to this Purchase Order (“Inventions”), are hereby assigned to and are the exclusive property of Novocure and its Affiliates. Provider shall promptly disclose in writing to Novocure each such Invention and provide to Novocure all information known to Provider reasonably relating to such Invention. Provider agrees to sign all necessary documents or take such other actions as Novocure may reasonably request in order to perfect and enforce any and all of its rights in such Inventions, including but not limited to documentation formalizing the assignment of all Inventions to Novocure or any Novocure Affiliate. All costs and expenses for perfecting and enforcing its rights in such Inventions shall be borne by Novocure.
e) Provider recognizes and agrees that all Work Product and Inventions prepared by or on behalf of Provider that are subject to copyright protection shall be “works made for hire” for Novocure under the terms of this Purchase Order. All copyrightable works prepared by or on behalf of Provider in the course of performing the Services hereunder that may not be interpreted as “works made for hire” shall be subject to Provider granting to Novocure and its Affiliates a perpetual, royalty free, worldwide, exclusive license with the right to assign or sublicense, in and to any such works. Provider hereby assigns to Novocure (or upon Novocure’s request, a Novocure Affiliate) all rights, title and interest to all Work Product and Inventions together with all of the goodwill associated therewith, subject to any properly disclosed third party rights. Novocure may, in its sole determination, apply for registration, or other protection, of any such Work Product and Inventions worldwide. Provider shall cooperate with Novocure and its Affiliates in regard to obtaining the necessary documents for any Work Product or Inventions protection, including the execution of any required documents. Novocure shall pay any reasonable expenses incurred in connection with such cooperation.
(f) The provisions of this Section 11 shall survive the expiration or sooner termination of this Agreement.
12) MISCELLANEOUS
(a) Use of Novocure Trademark/Name; Publicity. Provider shall not issue any press release or other publicity materials, or make any presentation with respect to the existence of this Purchase Order or the terms and conditions hereof without the prior written consent of Novocure in each instance. Provider shall not publicize or use any name, trade name, service marks, trademarks, trade dress or logos of Novocure (or any of its Affiliates) nor identify Novocure (or any of its Affiliates) as a customer without Novocure’s prior written consent in each instance. This restriction shall not, however, apply to the extent that any such disclosures are required by applicable Laws, including as may be required in connection with any filings required to be made with the United States Securities and Exchange Commission or by the disclosure policies of a major stock exchange.
b) ;Governing Law; Venue. This Agreement shall be governed by, construed and enforced in accordance with the laws of the New York State, irrespective of its choice of law rules. The Parties irrevocably submit to the jurisdiction of the competent courts located in New York County of New York State and hereby waive any objection regarding jurisdiction or forum. Each Party hereby waives (i) any objection which it may have at any time to the venue of the proceedings in any such court, (ii) any claim that such proceedings have been brought in an inconvenient forum and (iii) the right to object, with respect to such proceedings, that such court does not have any jurisdiction over such Party. IN ANY CONTROVERSY OR CLAIM, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH HEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, ALL PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY.
(c) Relationship of the Parties. Novocure engages Provider only for the purposes and to the extent set forth in this Purchase Order and, accordingly, Provider shall not be considered a partner, co-venturer, agent, employee, or representative of Novocure, but shall remain in all respects an independent contractor, including for purposes of the Occupational Safety and Health Act or state equivalent. Neither Novocure nor Provider shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract, or otherwise to assume any obligation or responsibility in the name of or on behalf of the other party. Neither Novocure nor Provider shall be deemed a joint employer of the other’s employees, each party being responsible for any and all claims by its employees. Neither Party’s employees shall be deemed “leased” employees of the other for any purpose.
(d) Assignment; Subcontracting. This Purchase Order or any right or obligation arising therefrom shall not be assigned or transferred by Provider in the absence of Novocure’s prior written consent thereto and any purported assignment or transfer absent such consent shall be automatically deemed null and void. Provider shall not delegate or subcontract any of its obligations or responsibilities under this Purchase Order to any third party (including to an affiliate of Provider) without Novocure’s prior written permission. No delegation or subcontracting by Provider hereunder shall relieve Provider of any of its obligations or responsibilities under this Purchase Order and Provider shall remain responsible for obligations, services and functions performed by its subcontractors to the same extent as if they were performed by Provider.
(e) Force Majeure. If either Party shall be delayed, interrupted or prevented from the performance of any obligation hereunder by reason of an act of God, fire, flood, war (declared or undeclared), public disaster, strike or labor dispute, governmental enactment, rule or regulation, or any other cause beyond such Party’s reasonable control, such Party shall not be liable to the other and the time for performance of such obligation shall be extended for a period equal to the duration of the contingency that occasioned the delay, interruption or prevention. In relation to any Services, if such interruption lasts more than ten (10) days, Novocure, in its sole discretion, may exercise its rights under Section 10 of this Purchase Order.
(f) Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Purchase Order or the validity or enforceability of this Purchase Order in any other jurisdiction, and the Parties shall negotiate in good faith to modify such provision so that it is valid and enforceable to the Parties.
(g) Waiver. The failure of Novocure to insist in any instance upon strict performance by Provider of any provision of this Purchase Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Purchase Order or any corresponding Agreement. If any provision of this Purchase Order shall be held illegal or unenforceable by any governmental authority having jurisdiction over this Purchase Order, the validity of the remaining portions shall not be affected thereby.
(h) Headings. Headings are included herein for convenience of reference only, and shall not constitute a part of this Purchase Order or change the meaning of this Purchase Order.