Assignment. Neither party may assign a purchase order or agreement to any third party without the prior written consent of the other.
Purchase on Own Behalf. Buyer represents and warrants that it is entering into this Purchase Order on its own behalf (or on behalf of its affiliates) and not for the benefit of any third party, and that the Products are being purchased by Buyer for use by Buyer and/or its affiliates and not for re-sale.
Fair Practice. Supplier shall not discriminate against any employee or applicant for employment because of race, creed, color, religion, national origin, sex, age, physical or mental disability. Supplier shall take reasonable steps to ensure that employees are treated during employment without regard to their race, creed, color, religion, national origin, sex, age, physical or mental disability except where it relates to a bona fide occupational qualification, and that all legal requirements relating to the same are complied with.
Fair Price. The parties acknowledge and agree that the agreed upon price for the Products is fair and reasonable, and Buyer expressly waives any and all claims of price gouging or similar. Buyer shall make payment in accordance with the terms of the Purchase Order.
Use by Buyer. Buyer agrees to use the Products as intended by standard medical practice for similar products and in accordance with applicable medical protocol, and, without limiting the terms of this Purchase Order, assumes all direct and indirect liability for the improper use of the Products. Products are sold for use or consumption within the United States only.
Manufacturing. Buyer acknowledges and understands that all Products being purchased have been manufactured by a third-party manufacturer located in China. Said manufacturer has represented to Supplier that all Products conform to applicable legal requirements. Subject to the immediately preceding sentence and Sections 7 and 8 below, Supplier makes absolutely no representations or warranties on behalf of the manufacturer or relating to the Products. Supplier reserves the right, in its sole and absolute discretion, to change manufacturers at any time and for any reason, without notice to Buyer, and the parties agree that any change in manufacturer shall not constitute an assignment of this Purchase Order.
Import and Customs. Buyer acknowledges and understands that Supplier has retained a third-party import specialist and customs broker to ensure proper import into the United States in compliance with applicable law. Said import specialist and customs broker has represented to Supplier that the manufacturer and Products conform to applicable law solely based on its review of the information provided by the manufacturer. Subject to the immediately preceding sentence and Sections 6 and 8 herein, Supplier makes absolutely no representations or warranties on behalf of the import specialist and customs broker or relating to the Products. Supplier reserves the right, in its sole and absolute discretion, to change the third party responsible for import and customs clearance at any time and for any reason, without notice to Buyer, and the parties agree that any change in said import specialist and customs broker, or any party responsible for shipping and delivery of the Products, shall not constitute an assignment of this Purchase Order. Supplier shall not be liable for any damages arising from actions or inaction of the import specialist and customs broker
Warranties. Supplier warrants that all goods supplied hereunder meet the applicable Product specifications provided to Buyer at the time Supplier ships each Product. SUPPLIER MAKES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE WITH PRODUCT LEGAL REQUIREMENTS AND/OR ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ARISING OUT OF A COURSE OF DEALING, PERFORMANCE, CUSTOM, OR USAGE OF TRADE.
Limitation on Liability. Buyer acknowledges and agrees that Supplier’s maximum liability shall be the lesser of the amount paid for the Product or the actual amount of damages incurred by Buyer as the direct result of Supplier’s failure to provide the Product in accordance with the terms of the Purchase Order. Except for said limited remedy, and except to the extent prohibited by law, Supplier shall not be liable for any and all direct, indirect, incidental, special, punitive, or consequential damages (including, but not limited to, lost profits, revenue, business, opportunity, or goodwill) that directly or indirectly arise from or relate to Product, regardless of the legal or equitable theory asserted, including, but not limited to, warranty, contract, negligence, fraud, or strict liability and/or personal injury resulting from the use of the Product.
Governing Law; Dispute Resolution; Venue. The terms and provisions of this Purchase Order shall be construed in accordance with the laws of the State of Connecticut. Except where Supplier files a claim or action to collect unpaid amounts due from Buyer, all claims and disputes arising from or relating to this Purchase Order or the sales terms or the Products must be resolved exclusively through the following dispute resolution processes: (a) good faith negotiations between duly authorized representatives of each party conducted within 90 days of a request for negotiations; (b) if necessary, non-binding mediation before a neutral mediator jointly selected and paid for by the parties within 120 days of a request for mediation at a location in the State of Connecticut; and (c) as a last resort, at the option of Supplier, binding arbitration or litigation. Any arbitration shall be conducted by the American Arbitration Association in the State of Connecticut under its rules of commercial arbitration and the state or federal court located within Connecticut shall be the sole and exclusive jurisdiction and venue for any litigation between Buyer and Supplier. Buyer agrees to submit to the jurisdiction of such court in the event of any litigation.
Remedies upon Default. In any case where the Supplier has failed to deliver products or services or has delivered non-conforming products or services, the Supplier shall have a 45 day right to cure period, such cure period beginning upon the date of receipt of notice from Buyer.
Use of Name or Intellectual Property. Supplier agrees it will not use the name or intellectual property, including but not limited to, Buyer trademarks in any manner, including commercial advertising or as a business reference, without the expressed prior written consent of the Buyer. Buyer acknowledges and agrees that the Product is being manufactured by an independent third party and that Supplier shall not be liable for any trademark, patent, copyright or similar intellectual property infringement relating to the design of the Product, and Buyer expressly waives any such claims against Supplier.
Force Majeure. Supplier shall not be responsible for any default hereunder, including but not limited to non-delivery of the Products, which are the result of a force majeure. For purposes hereof, force majeure shall mean a work stoppage substantially impacting the ability to provide, manufacture, or deliver the Products for reasons beyond the control of Supplier, including, without limitation, any natural disaster, global pandemic or disease (including COVID-19), fire, flood, storm, war, strike, civil unrest, terrorism, error in inoperability of communication equipment or links or power supply, seizure by customs or another domestic or foreign government agency, compliance with law or governmental order, direction of a jurisdiction or any other circumstances beyond the control of Supplier or actions taken by Supplier which were reasonably believed by Supplier to be taken pursuant to this Purchase Order or the requirements of this paragraph.
Order Cancellation. Buyer may cancel this this Purchase Order only with Supplier’s written consent, except to the extent the Purchase Order is canceled or terminated for non-delivery or nonconformity following expiration of the cure period provided herein. In the event of an approved cancellation, and where Buyer has incurred costs and expenses that cannot reasonably be recovered through sale of the Products to another person or entity, Buyer shall pay Supplier for all such costs and expenses, which may include costs of related raw materials, packaging, reasonable attorneys fees, and other items dedicated to Products. Supplier may cancel a Purchase Order without obligation or liability upon notice to Buyer.
Taxes. Product prices do not include any applicable taxes, tariffs, duties, fees, or charges of any type imposed by any governmental authority (“Transfer Taxes”). Transfer Taxes will be separately itemized on Supplier’s Purchase Order or subsequent invoice and Buyer shall be liable for their full payment, such payment to be made promptly. Supplier will not collect or remit any Transfer Taxes for which Buyer provides a valid tax exemption certificate.
Purchase Order Terms.
a. Invoices and credit memos must reference the appropriate purchase order and/or check number. Credit memos must reference the invoice number.
b. Invoices must be itemized. Invoices and other notices required hereunder may be submitted electronically via email addresses identified by the parties on the Purchase Order or to any other email address identified by the parties in writing after the execution of this Purchase Order.
c. Unless otherwise indicated on the Purchase Order, payment terms are A.R.O. Payment terms must be stated on the invoice.
d. All shipments are to be made F.O.B. Destination unless otherwise indicated or agreed to by the Buyer.
e. Shipping/Billing instructions must be followed. Supplier will be liable for all expenses resulting from material being shipped to an incorrect address, unless such address was incorrectly identified by Buyer, in which case Buyer shall be responsible for such costs and expenses.
f. All deliveries shall include a packing list indicating the contents of each package.
g. Delivery Schedule – Subject to the cure period and the other terms of this Purchase Order, including but not limited to Section 7 above, all Product shall be delivered within four (4) weeks from the date hereof. Without limiting the foregoing, Supplier agrees to use its best efforts to delivery the Products as soon as possible. In the event delivery is expected to occur at a later date, Supplier shall promptly notify Buyer of such expected delay, at which time Buyer shall be entitled to terminate this Purchase Order or consent to later delivery at its discretion.
h. Receipt – Buyer shall be deemed to have received and Product procured hereunder when such Product have been deposited at the Buyer’s dock and all bills of lading or other shipping papers which require signature have been signed.
i. Acceptance – Buyer shall be deemed to have accepted the Product procured hereunder only after actual inspection for conformity or the passage of three (3) days from receipt, whichever occurs first. The Product shall be conclusively deemed accepted if Buyer does not notify Supplier in writing of non-acceptance or a nonconformity of the Product within three (3) days from receipt.
j. Rejection - All Products which are rejected for nonconformity with the terms and conditions of this Purchase Order are rejected at Supplier's expense and shall be returned at Supplier's risk of loss and expense; provided that, in the event of nonconformity, the parties shall work together in good faith to adjust the purchase price in a manner that will permit Buyer to accept the nonconforming goods prior to rejection.
k. Battle of the Forms. The terms of this Purchase Order (for the avoidance of doubt, including Supplier’s Terms and Conditions) shall remain in full force and effect regardless of any terms and conditions contained on forms or documents provided by Buyer, and in the event of any conflict or differentiation (including the existence of additional terms not contained herein) between the terms of this Purchase Order and other such forms or documents, the terms of this Purchase Order shall prevail.
Changes. Supplier reserves the right to change its Terms and Conditions at any time without notice.
Entire Agreement. The terms of this Purchase Order (for the avoidance of doubt, including Supplier’s Terms and Conditions) shall constitute the entire agreement between Buyer and Supplier and shall supersede any and all prior agreements between the parties, whether oral or written.
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