SUPPLIER TERMS AND CONDITIONS
1. FORMATION OF CONTRACT. This proposed purchase contract, which incorporates by reference these terms and conditions and all other terms and conditions set forth in this proposed purchase order (collectively, the “Contract”), is Buyer’s offer to purchase the goods and any related services and/or other deliverables (collectively, the “Goods”) described in this offer. Acceptance is strictly limited to the terms and conditions in this offer. Buyer is not bound by any term or condition that differs from or adds to this offer. Seller’s commencement of performance or acceptance of this offer in any manner shall conclusively evidence acceptance of this offer as written. Buyer and Seller are referred to herein as a “Party” or collectively as the “Parties.” Except as authorized herein, no amendment or modification of this Contract shall bind either Party unless it is in writing and is signed by the authorized representatives of the Parties.
a. Seller shall adhere to the shipment or delivery schedules specified in the purchase order. In the event of any anticipated or actual delay, Seller shall: (i) promptly notify Buyer in writing of the reasons for the delay and the actions being taken to overcome or minimize the delay; (ii) provide Buyer with a written recovery schedule; and (iii) if requested by Buyer, ship via air or other expedited routing, at no additional cost to Buyer, unless the delay has been caused by Buyer.
b. Seller shall not deliver Goods prior to the scheduled delivery dates unless authorized in writing by Buyer.
c. Buyer shall, at no additional cost, retain goods furnished in excess of the specified quantity or allowed tolerance unless, within fifteen (15) days of shipment, Seller requests return of such
d. Delivery is not complete until the goods have been actually received and accepted. The risk of loss or damage prior to completion of delivery shall be exclusively upon the Seller, and any such loss or damage to goods or materials ordered hereunder shall not release the Seller from any obligation hereunder.
3. PACKING AND SHIPPING
a. All Invoices, Packing Lists, packages, shipping notices and other written documents affecting this Order shall contain the GlobalMed Purchase Order number. Packing Lists shall be enclosed in each and every box or package shipped pursuant to this Order, indicating the content of such boxes or packages.
b. Seller shall pack the Goods to prevent damage and deterioration. Buyer may charge Seller for damage to or deterioration of any Goods resulting from improper packing or packaging.
c. If the Contract specifies FOB destination (place of delivery), then in addition to any other shipping instructions, Seller shall forward Goods freight prepaid unless otherwise stated in the purchase contract. Seller shall make the transportation arrangements, pay the shipping costs, and remain responsible for the Goods until the Goods are delivered and the Buyer takes possession at the destination.
d. If the Contract specifies FOB origin (place of shipment), then in addition to any other shipping instructions, Seller shall forward Goods collect using Buyers account number and unless otherwise stated on the Purchase Order.
4. INVOICES AND PAYMENT
a. The price stated in this Order includes all charges for packaging, boxing, crating, special handling, and freight for F.O.B. destination purchase orders.
b. Seller shall forward its invoice to [email protected] for each delivery of goods. The invoice shall include Buyer’s Purchase Order number and line item number.
c. Payment due date, including discount periods, shall be computed from the later of the scheduled delivery of Goods date, the actual delivery of Goods date or the date of receipt of a correct invoice. Payment shall be deemed made on the date Buyer’s check is mailed or payment is otherwise tendered. Seller shall be deemed to have waived all charges and fees that are not invoiced within ninety (90) calendar days after the end of the calendar year in which the charges were incurred.
5. CHANGES. Buyer shall have the sole right at any time to make changes to drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If such change increases or decreases the cost or time required to perform this Contract, Buyer and Seller shall negotiate an equitable adjustment in the price or schedule, or both, to reflect the increase or decrease. Buyer shall modify this Contract in writing accordingly.
6. BUYER’S PROPERTY. Seller shall clearly mark, maintain an inventory of, and keep segregated or identifiable all of Buyer’s property and all property to which Buyer acquires an interest by virtue of this Contract. Seller assumes all risk of loss, destruction or damage of such property while in Seller’s possession, custody or control, including any transfer to Seller’s subcontractors. Upon request, Seller shall provide Buyer with adequate proof of insurance against such risk of loss. Seller shall not use such property other than in performance of this Contract without Buyer’s prior written consent. Seller shall notify Buyer if Buyer’s property is lost, damaged or destroyed.
7. COMPLIANCE TO QUALITY STANDARDS
Seller shall establish and maintain a quality control system acceptable to Buyer for the Goods purchased under this Contract. Seller shall permit Buyer to review procedures, practices, processes and related documents to determine such acceptability.
Seller shall promptly notify Buyer in writing when (i) discrepancies in Seller’s process, including any violation of or deviation from Seller’s approved inspection/quality control system, or Goods are discovered or suspected regarding Goods delivered or to be delivered under this Contract, including the quantity and specific identity of any impacted Goods; (ii) there are any changes to the quality certification status of the Supplier; (iii) process, material or tooling change that may impact GlobalMed’s use of the Deliverables and provide evidence to GlobalMed of a first article inspection that assesses the impact of that change.
The Supplier shall notify Buyer of changes in the purchased product prior to implementation of any changes that affect the ability of the purchased product to meet specified purchase requirements.
Seller shall ensure that its subcontractors comply with the Supplier’s obligations in this clause. Seller shall retain records confirming the deliverable’s compliance with a Quality System for a period of the service life of the Deliverables plus 2 years.
8. ACCEPTANCE AND REJECTION
a. Buyer shall accept the Goods or give Seller notice of rejection due to any defect or nonconformance within a reasonable time after the date of delivery. No payment, prior test, inspection, passage of title, any failure or delay in performing any of the foregoing, or failure to discover any defect or other nonconformance shall relieve Seller of any obligations under this Contract or impair any rights or remedies of Buyer, including revocation of acceptance.
b. If Seller delivers defective or nonconforming Goods, Buyer may at its option and solely at Seller’s expense: (i) require Seller to promptly correct or replace the Goods; (ii) return the Goods for credit or refund; (iii) correct the Goods; (iv) obtain replacement Goods from another source (v) rework the items at Buyer facility and reduce purchase contract value by a fair cost for the rework performed by Buyer. Return to Seller of defective or non-conforming Goods and redelivery to Buyer of corrected or replaced Goods shall solely be at Seller’s expense.
c. Seller shall not redeliver corrected or rejected Goods without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed as Buyer may reasonably direct.
a. Seller expressly warrants that all Goods or services furnished under this agreement shall conform to all specifications, drawings, appropriate standards, samples or descriptions furnished to or by Buyer and will be new, free from defects in material or workmanship.
b. This warranty shall begin upon Buyer’s final acceptance of the Goods and shall survive inspection, test and payment for the Goods. The warranty shall extend for a period of one (1) year or such other period as set forth elsewhere in this Contract, and Buyer shall give Seller notice after discovery of a defect or nonconformance in the Goods. The warranty shall run to Buyer and its successors, assigns and customers. In the event of any defect or nonconformance in the Goods, Buyer may, at its option and at Seller’s expense: (i) require prompt correction or replacement of the Goods, or (ii) return the Goods for credit or refund. Return to Seller of defective or nonconforming Goods and redelivery to Buyer of corrected or replaced Goods shall be at Seller’s expense. Goods required to be corrected or replaced shall be subject to the requirements of this Contract in the same manner and to the same extent as Goods originally delivered under this Contract, but only as to the corrected or replaced part or parts thereof. Even if the Parties disagree about the existence of a breach of this warranty, Seller shall promptly comply with Buyer’s direction to: (i) repair, rework or replace the Goods, or (ii) furnish any materials or parts and installation instructions required to successfully correct the defect or nonconformance. If the Parties later determine that Seller did not breach this warranty, the Parties shall equitably adjust the Contract price.
10. COUNTERFEIT GOODS.
a. Seller shall not furnish Counterfeit Goods to Buyer, defined as Goods or separately-identifiable items or components of Goods that: (i) are an unauthorized copy or substitute of an Original Equipment Manufacturer or Original Component Manufacturer (collectively, “OEM”) item; (ii) are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture; (iii) do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design; (iv) have been re-worked, re-marked, relabeled, repaired, refurbished, or otherwise modified from OEM design but not disclosed as such or are represented as OEM authentic or new; or (v) have not passed successfully all OEM required testing, verification, screening, and quality control processes. Notwithstanding the foregoing, Goods or items that contain modifications, repairs, rework, or re-marking as a result of Seller’s or its subcontractor’s design authority, material review procedures, quality control processes or parts management plans, and that have not been misrepresented or mismarked shall not be deemed Counterfeit Goods. Counterfeit Goods shall be deemed nonconforming to this Contract.
b. Seller shall implement appropriate processes to ensure that Goods furnished to Buyer under this Contract are not Counterfeit Goods. Such processes are subject to Buyer review. Seller’s processes shall include, but are not limited to, the direct procurement of items from OEMs or authorized suppliers, conducting approved testing or inspection to ensure the authenticity of items, and, when items are to be procured from non-authorized suppliers, obtaining from such non-authorized suppliers appropriate certificates of conformance that provide one or more of the following: (i) the OEM’s original certificate of conformance for the item; (ii) sufficient records providing unbroken supply chain traceability to the OEM; or (iii) test and inspection records demonstrating the item’s authenticity.
c. If Seller becomes aware or suspects that it has furnished Counterfeit Goods to Buyer under this Contract, Seller promptly, but in no case later than thirty (30) days from discovery, shall notify Buyer and replace, at Seller’s expense, such Counterfeit Goods with OEM or Buyer-approved Goods that conform to the requirements of this Contract. Seller shall be liable for all costs related to the delivery or replacement of Counterfeit Goods, including any testing or validation costs necessitated by the installation of authentic Goods in replacement of Counterfeit Goods.
d. Seller bears responsibility for procuring authentic Goods or items from its subcontractors and shall ensure that all such subcontractors comply with the requirements of this Article.
11. TERMINATION FOR CONVENIENCE. Buyer may terminate all or part of this Contract for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to stop work. Within ninety (90) days after the effective date of termination, Seller may submit to Buyer a claim reflecting the percentage of the work performed prior to the effective date of termination, plus reasonable charges that Seller can demonstrate to the satisfaction of Buyer using its standard record keeping system have resulted from the termination. Seller shall not be paid for any work performed or costs incurred which reasonably could have been avoided. Further, Seller shall not be paid, and in no event shall Buyer be obligated to pay, lost or anticipated profits or unabsorbed indirect costs or overhead. In no event shall Buyer be obligated to pay Seller any amount in excess of the Contract price. The provisions of this Article shall not limit or affect the right of Buyer to cancel this Contract for default. Seller shall continue all work not terminated.
12. CANCELLATION FOR DEFAULT. Buyer may, by written notice to Seller, cancel all or part of this Contract: (i) if Seller fails to deliver the Goods within the time specified by this Contract or any written extension; (ii) if Seller fails to perform any other provision of this Contract or fails t o make progress, so as to endanger performance of this Contract, and, in either of these two circumstances, within five (5) days after receipt of notice from Buyer specifying the failure, does not cure the failure or provide Buyer with a written detailed plan adequate to cure the failure if such failure reasonably cannot be cured within such ten (10) days and such plan is acceptable to Buyer; or (iii) in the event of Seller’s bankruptcy, suspension of business, insolvency, appointment of a receiver for Seller’s property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors.
Seller shall continue all work not canceled.
Buyer may require Seller to transfer title and deliver to Buyer, as directed by Buyer, any (i) completed Goods, and (ii) any partially completed Goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively, “Manufacturing Materials”) that Seller has specifically produced or acquired for the canceled portion of this Contract. Upon direction from Buyer, Seller shall also protect and preserve property in its possession in which Buyer or its customer has an interest.
If, after cancellation, it is determined that Seller was not in default, the rights and remedies of the Parties shall be as if the Contract had been terminated according to the “Termination for Convenience” Article of this Contract.
13. CONFIDENTIALITY. Seller shall consider all information furnished by Buyer to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract, unless Seller obtains written permission from Buyer to do so. This paragraph shall apply to drawings, specifications or other documents prepared by Seller for Buyer in connection with this Order.
14. GOVERNING LAW. This Contract and any disputes arising out of, or relating to, this Contract shall be governed by the laws of the State of Arizona without regard to the conflict of law rules thereof. This Contract excludes the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
15. DISPUTES. Any dispute that arises under or is related to this Contract that cannot be settled by mutual agreement of the Parties may be decided by a court of competent jurisdiction. Pending final resolution of any dispute, Seller shall proceed with performance of this Contract according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute.
16. ENTIRE AGREEMENT. This Contract, together with all purchase orders, change orders, attachments, exhibits, supplements, specifications, schedules and other terms referenced in or attached to this Contract, contains the entire agreement of the Parties and supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter of this Contract.
Release Date: May 12, 2020