Purchase Order Terms and Conditions for the USA
THIS PURCHASE ORDER TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) CONSTITUTE THE ONLY TERMS AND CONDITIONS UPON WHICH DEVRO, INC. (“BUYER”) IS WILLING TO ORDER THE GOODS AND/OR SERVICES IDENTIFIED ON ANY BUYER PURCHASE ORDER (THE “GOODS”) FROM THE ADDRESSEE IDENTIFIED ON SUCH PURCHASE ORDER (“SELLER”).
2. OFFER, ACCEPTANCE
Buyer’s order to purchase the Goods (the “Purchase Order”) is an offer and is not an acceptance of any offer by Seller to sell the Goods. Seller’s acceptance of the Purchase Order is expressly limited to the Terms and Conditions. Any terms and conditions proposed by Seller in Seller’s acceptance, acknowledgment, invoice, transmittal, or any other document that are different from, conflict with, or add to the Terms and Conditions will be deemed to materially alter the Terms and Conditions and are hereby unconditionally objected to and rejected by Buyer. Acceptance of the Purchase Order, including the Terms and Conditions, both or either of which may be delivered to Seller in electronic form, will occur upon the first to occur of any of the following events: (i) when Buyer receives written acknowledgment that Seller has accepted the Purchase Order, or (ii) when Buyer is aware that Seller has commenced performance thereunder.
No modification of the Terms and Conditions will be undertaken or valid without the prior written authorization of Buyer. Buyer may at any time, by giving written notice to Seller, modify the Purchase Order specifications, designs, drawings, packaging, methods of shipment, quantities, place of delivery, or delivery schedules. If any such modification causes an increase or decrease in the cost of or the time required for Seller’s performance, an equitable adjustment may be made in the price or delivery schedule, or both, provided Buyer agrees to such adjustment by written approval given (10) business days from the date Buyer receives Seller’s request therefor and any additional documentation that Buyer may request. Nothing contained in this Section will relieve Seller from proceeding without delay to perform the Purchase Order as modified.
Seller will deliver the Goods to Buyer on the time(s) and date(s) shown in the Purchase Order. Time is of the essence. If delivery is not made by the scheduled delivery date, Buyer reserves the right to cancel delivery and to purchase elsewhere and hold Seller accountable for any excess cost resulting therefrom. Substitutions outside of normal accepted standards and advance and excess shipments may at Buyer’s option be rejected and returned to Seller at Seller’s expense. All shipments will be delivered to the destination specified in the Purchase Order and otherwise in accordance with the Purchase Order and Seller shall retain all risk of loss or damage to the Goods until delivery of the Goods at such specified destination.
5. PREMIUM SHIPMENTS
If Seller’s acts or omissions result in Seller’s failure to meet Buyer’s delivery requirements and Buyer requires a more expeditious method of transportation for the Goods than the transportation method originally specified by Buyer, then at Buyer’s option Seller will (i) promptly reimburse Buyer the difference in cost between the more expeditious method and the original method, (ii) allow Buyer to reduce its payment of Seller’s invoice by such difference, or (iii) ship the Goods as expeditiously as possible at Seller’s expense and invoice Buyer for the amount which Buyer would have paid for normal shipment.
6. INSPECTION, TESTS, AND QUALITY ASSURANCE
The Goods will be subject to inspection and testing by Buyer at all reasonable times and places, including Seller’s facilities. It is expressly agreed that inspections and/or payments prior to, at the time of, or after delivery do not constitute a final acceptance of the Goods. Any inspection, discovery of any breach of warranty, failure to make an inspection, or failure to discover any breach of warranty does not constitute a waiver of any of Buyer’s rights or remedies whatsoever. Goods rejected as not conforming to the Purchase Order or as otherwise deemed defective, will be returned to Seller at Seller’s expense, including transportation and handling costs. Defective Goods shall not be replaced by Seller unless authorized to do so in writing by Buyer.
7. WARRANTIES; DISCLAIMER
Seller warrants that the Goods will conform to applicable specifications, instructions, drawings, data, and samples, will be merchantable, will be of good material and workmanship and free from defects, and that the Goods will be fit and sufficient for the purposes intended, if such intent is known to Seller, and that the Goods will be free from all liens, encumbrances, and patent, trademark, copyright, trade secret, or other intellectual property right infringements or claims. These warranties are in addition to all other warranties, express or implied, and survive acceptance of and payment for the Goods by Buyer, its successors, assigns, customers, and users of its products. The warranties of Seller will not be excluded or limited in any manner whatsoever unless expressly authorized in writing by Buyer.
The Goods will be supplied at the price set forth in the Purchase Order and in no instance will Buyer be liable to Seller in excess of such price, less any applicable discounts and/or other deductions, and no interest or other charge will be recognized or paid by Buyer upon the Purchase Order or resulting invoice, whether claimed by reason of late payment or otherwise. The price set forth in the Purchase Order for the Goods is inclusive of all charges, including without limitation for packing, containers and cartage, except as otherwise specifically provided in the Purchase Order.
9. RIGHTS OF SETOFF
Buyer’s obligation to pay the price set forth in the Purchase Order will be subject to any abatement, reduction, setoff, defense, counterclaim, or recoupment for any reason whatsoever.
All information (including, but not limited to, information subject to separate confidentiality agreements between Seller and Buyer), intellectual property, designs, drawings, know-how, methods, marketing strategies, specifications, prices, costs, business plans, purchasing data, research and development data, customer lists or information, and other data (collectively, “Confidential Information”) furnished by Buyer to Seller, or otherwise learned by Seller as a result of its relationship with Buyer, is proprietary to Buyer, and Seller agrees to keep all such Confidential Information confidential and use such Confidential Information only as necessary in order to fulfill Seller's obligations to Buyer under the Purchase Order. Seller further agrees to return to Buyer all Confidential Information, including all copies thereof made by or for Seller, upon Buyer's request. Excess inventory of Goods made by or for Seller (and not purchased by Buyer) with the use of Buyer’s Confidential Information, Buyer’s trademarks or trade names, or trademarks or trade names of Buyer’s customers, will be destroyed by Seller at Seller’s expense. Seller will not in any manner advertise or publish the fact that it has furnished or contracted to furnish to Buyer the Goods without prior written consent of Buyer. Seller will not have the right under any circumstance to use the name of Buyer as its own or hold itself out in a manner that would lead a third party to reasonably believe Seller is acting as or on behalf of Buyer.
Seller will inform Buyer in writing of any third parties to whom Seller subcontracts any of the work required under the Purchase Order specifying in detail the work that had been subcontracted to such third party. Seller will ensure that any third party to whom Seller subcontracts any of the work hereunder is bound by all the Terms and Conditions relating to such work to which Seller is bound under the Purchase Order. Seller will nevertheless remain liable under the Terms and Conditions for all work performed by the subcontractor as if it had been performed by Seller even if Buyer has consented to such subcontracting under Section 18 hereof.
Buyer may terminate performance of the work under the Purchase Order, in whole or in part, for any reason or no reason, by written notice to Seller, without incurring any liability to Seller other than as specifically set forth in this Section. Upon receipt of such notice, Seller will immediately discontinue all work and the placing of all orders for material, facilities, and supplies pursuant to the Purchase Order. Upon termination by Buyer under this Section, Buyer will negotiate payment to Seller based on Seller’s non-recoverable, reasonable, and actual documented costs and expenses; in no case, however, will payments made under this Section exceed the aggregate price specified in the Purchase Order, less payments otherwise made or to be made. Nothing contained in this Section will be construed to limit or affect any rights or remedies that Buyer may have against Seller.
13. FORCE MAJEURE
Buyer will have the right to suspend shipments from Seller hereunder and refuse to accept delivery of the Goods, without incurring any liability to Seller, in the event of war, riot, flood, acts of God, terrorist acts, fire, court order, strike, work stoppage, act of governmental authority, or other causes beyond Buyer’s control.
14. CANCELLATION, DEFAULT
If Seller fails to perform as specified in the Purchase Order or breaches any of the Terms and Conditions, Buyer reserves the right, without incurring any liability to Seller, and upon giving Seller written notice, to: (i) cancel the Purchase Order in whole or part, and Seller will be liable to Buyer for all damages, losses, and liability incurred by Buyer directly or resulting from Seller’s breach; (ii) obtain the Goods ordered herein from another source, with any excess cost resulting therefrom chargeable to Seller; (iii) setoff or reduce all claims for money due or to become due from Buyer to Seller to the extent Buyer is damaged by Seller’s failure to perform; or (iv) repair any defective merchandise and charge Seller for the expense involved when, in Buyer’s opinion, the cost to Seller would be less than replacement. The remedies herein provided will be cumulative and in addition to any other remedies provided at law or in equity. Buyer’s failure to insist on performance of any of the Terms and Conditions or to exercise any right or privilege, or Buyer's waiver of any breach hereunder, will not be treated as a future waiver of any provision of the Terms and Conditions, whether of the same or similar type. If Seller’s financial condition is found to be or becomes unsatisfactory to Buyer during the term of the Purchase Order, Buyer reserves the right, without incurring any liability to Seller, to cancel the Purchase Order by written notice and receive a refund of any deposits, down payments or other advance payment (except for goods or services already delivered). Buyer also reserves the right similarly to terminate all other contracts covering purchases by Buyer of Seller’s products or services whether or not Seller may otherwise be in default, and no rights will accrue to Seller against Buyer on account of such termination. The foregoing rights of Buyer are in addition to, and not in lieu of, any rights Buyer may possess under §2-609 of the Uniform Commercial Code.
Except to the extent that any injury or damage is due solely to Buyer’s gross negligence, Seller agrees to indemnify and hold harmless Buyer, its successors, assigns, customers, and users of its products against all claims, suits at law or in equity, recall campaigns or other corrective service actions and from all damages, claims and demands in any other manner arising out of or alleged to have resulted directly or indirectly from the Goods (collectively, the “Claim”), and, when notified will, at Buyer’s sole option, either defend the Claim at its own expense with counsel of Buyer’s choosing or reimburse Buyer’s expenses, attorneys’ fees and all other costs and liabilities whatsoever for defending such Claim. The foregoing indemnification shall apply whether the damage is caused by the sole or concurrent negligence of Seller.
16. INTELLECTUAL PROPERTY
Seller will indemnify and save and hold harmless Buyer, its successors, assigns, customers, and users of its products, and Buyer’s officers, employees, and agents, from and against all costs, losses, expenses, damages, claims, suits, or any liability whatsoever, including attorneys’ fees, resulting from any claim that the manufacture, use, sale or resale of the Goods infringe any patent, copyright, trademark, trade secret or other intellectual property rights; and Seller when notified will, at Buyer’s sole option, either defend any action or claim of such infringement at its own expense with counsel of Buyer’s choosing, or reimburse Buyer’s expenses, attorneys’ fees and all other costs and liabilities whatsoever for defending such action or claim. If the Goods or any part thereof or any use thereof in reasonable contemplation of the parties at the time of their purchase are held in such suit to constitute an infringement and their use is enjoined, Seller will promptly and at its own expense (i) procure for the Buyer the right to continue use of the Goods, (ii) replace the same with noninfringing goods satisfactory to Buyer, or (iii) modify the Goods in a way satisfactory to Buyer and its counsel so they become noninfringing.
17. NO IMPLIED WAIVER
The failure of Buyer at any time to require performance by Seller of any provision of the Purchase Order will not affect the right to require such performance at any time thereafter, nor will the waiver by Buyer of a breach of any provision of the Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.
The Purchase Order may not be assigned or subcontracted by Seller without the Buyer’s prior written consent.
19. APPLICABLE LAW
All matters relating to Buyer’s purchase of the Goods will be construed in accordance with and governed by the laws of the State of South Carolina. Any claim relating to the sale of the Goods to Buyer will be brought in any Federal or state court located in the State of South Carolina and Seller hereby consents to such jurisdiction.
20. COMPLIANCE WITH LAWS
Seller represents and warrants that all goods and services sold hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations, including Title VII of the Civil Rights Act of 1964, as amended, and related regulations and executive orders related thereto and to which Seller is subject. All laws and regulations required in agreements of this character are hereby incorporated by this reference, as applicable, including Executive Orders 11246 and 11375, as amended. Seller represents and warrants that each and every chemical, chemical substances, and/or ingredient thereof, furnished pursuant to the Purchase Order is manufactured, sold, and delivered in compliance with all applicable provisions of the Toxic Substances Control Act, and that the Goods do not contain chemicals or other substances the use of which has been banned, restricted, or limited in any manner by any law or regulation without such restriction or limitation being clearly identified with respect to each such product.
The Terms and Conditions are severable and if any Terms and Conditions or portions of any Terms and Conditions are stricken or declared illegal, invalid, or unenforceable by a court of competent jurisdiction for any reason whatsoever, the legality, validity or enforceability of the remaining Terms and Conditions will not be affected thereby.
Seller will be bound by any representation or undertaking made by any of its agents or employees with respect to specifications, quality, packaging, price, or conditions of delivery of the Goods. By accepting the Purchase Order, Seller ratifies any such representation or undertaking made by any of its agents or employees. The Purchase Order and the Terms and Conditions will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller will cooperate fully with the Buyer at Seller’s expense in obtaining approvals of the Goods requested by Buyer from certifying organizations.
23. ENTIRE AGREEMENT
The Terms and Conditions constitute the complete and exclusive statement of the terms of the Purchase Order, are intended as a final expression of the terms of the Purchase Order and will supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade will be relevant to supplement or explain any term herein. Buyer’s acceptance or acquiescence in a course of performance rendered by Seller hereunder will not be relevant to determine the meaning of this contract even though Buyer has knowledge of the nature of the performance and opportunity for objection.