SUPPLIER TERMS AND CONDITIONS
1. This Purchase Order applies on behalf of Terumo Medical Corporation, Terumo Puerto Rico, LLC, Terumo Americas Holding, Inc., collectively hereafter (“Terumo” or “Buyer”). Supplier is as indicated in the Purchase Order, hereafter (“Supplier”).
2. Packing Slips must be included in all shipments.
3. Purchase Order Number must be shown on each package, packing slip and invoice. Each invoice should contain the contact name and Purchase Order number. An order confirmation is required within (3) three business day from receipt of the Purchase Order.
4. Invoices must be remitted via a PDF file format to accountspayable@terumomedical.com no later than the day following shipment unless the Supplier and Buyer agree to other dates. The PDF filename should not contain any special characters, i.e., / ( ) # $ or ;. Only one invoice permitted per PDF. Multiple PDF files may be attached to the email.
5. Deliveries must be made to Buyer’s specified location.
6. EXTRA CHARGES. No additional charges of any kind will be allowed unless specifically agreed to in writing in advance by the Buyer.
7. PAYMENT. Payment terms are Net 45 days unless otherwise specified herein. It is understood that the cash discount period will be the date from the receipt of the goods or from the date of the invoice, whichever is later. C.O.D. shipments will not be accepted. Draft invoices will not be honored.
8. QUANTITIES. The specific quantity ordered must be delivered in full and not be changed without the Buyer’s consent in writing. Any unauthorized quantity is subject to Buyer’s rejection and return at Supplier’s expense.
9. PRICE. If price is not stated in this Order, it is agreed that the goods shall be billed at the price last quoted, or billed at the prevailing market price, whichever is lower. This Order must not be filled at a higher price than last quoted or charged without Buyer’s specific authorization. In addition, Supplier warrants that pricing is in full compliance with the Economic Stabilization Act of 1970, as amended, and all orders, rules, and regulations promulgated thereunder, as applicable.
10. APPLICABLE LAWS. Supplier represents that the merchandise covered by this Purchase Order was not manufactured and is not being sold or priced in violation of any federal, state, or local law or in violation of any rules promulgated by any agency. Buyer may be reselling certain of the Products covered by this Purchase Order to the United States Government. As such, Federal Acquisition Regulations requires that each Party agrees to comply at all times with various regulations including but not limited to: 48 C.F.R. 52.219-8 (Utilization Of Small Business Concerns); 41 C.F.R. 60-1.4 (Equal Opportunity Clause); 41 C.F.R. 60-250.4 (Disabled Veterans/Vietnam Veterans); 29 C.F.R. 553 (Fair Labor Standards Act) and 41 C.F.R. 60-741.4 (Affirmative Action and Non-Discrimination), as applicable. Additionally, the Parties agree to comply with any new regulations as applicable which may not be incorporated herein.
11. FAIR LABOR STANDARDS ACT. Supplier agrees that goods shipped to Buyer under this Purchase Order will be produced in compliance with the Fair Labor Standards Act as applicable.
12. WARRANTY SPECIFICATION. Supplier expressly warrants that all the materials and articles covered by this Order or other description or specification furnished by Buyer will be in exact accordance with such Order, description and free from defects in material and/or workmanship, and are merchantable, will pass without objection in the trade, and are fit for the ordinary purposes of which such goods are used. Such warranty shall survive delivery, and shall not be deemed waived either by reason of Buyer’s acceptance of or payment for said materials or articles. Any deviations, any other exception or alterations, from this Order or specifications furnished by Buyer must be approved in writing by Buyer’s Purchasing Department.
13. WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. If Supplier has been informed that the Buyer intends to use the goods supplied under this Purchase Order for a particular purpose, then Buyer is relying on the Supplier’s skill and judgment to select or furnish goods suitable for that purpose and the Supplier warrants that the goods which are supplied will be fit for the particular purpose of Buyer.
14. EFFECT OF BREACH OF WARRANTY. Supplier agrees to save harmless and protect Buyer, its successors, assigns against any claim or demand brought by customers and users of its product or component materials, based upon a breach of the warrantees contained herein, and after notice, to appear and defend at its own expense any suits at law or in equity arising therefrom.
15. CANCELLATION. Buyer reserves the right to cancel all or any part of the goods or services covered by this Purchase Order if Supplier does not make deliveries as specified, time being of the essence of this Contract, or if Supplier breaches any of the terms hereof including, without limitation, the warranties of Supplier.
16. INSPECTION AND ACCEPTANCE. All goods shall be received subject to Buyer’s right of inspection and rejection. Defective goods or goods not in accordance with Buyer’s specifications, or the specifications represented by Supplier, will be held for Supplier’s instruction at Supplier’s risk and if Supplier so directs, will be returned at Supplier’s expense. If inspection discloses that part of the goods received are not in accordance with Buyer’s specifications or Supplier’s representations, Buyer shall have the right to cancel any unshipped portion of the goods covered by the Purchase Order. Payment for goods on this Purchase Order prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that Buyer may have against Supplier. Buyer may reject non-conforming goods and shall not be required to accept replacements or substitutes or permit cure of defects in any goods rightfully rejected.
17. PATENTS. Supplier represents and warrants the materials or goods purchased hereunder do not infringe on any letters, patent granted by the United States, and covenants and Supplier agrees to save harmless and protect Buyer, its successors, assigns, customers and users of its product, against any claim or demand based upon such infringement, and after notice, to appear and defend at its own expense any suits at law or in equity arising therefrom.
18. INTERPRETATION OF CONTRACT, ASSIGNMENTS, AND DELEGATION. This contract may not be assigned by Supplier without Buyer’s written consent. Supplier may not delegate the performance of any obligation hereunder to any third person unless Buyer agrees in writing.
19. RISK OF LOSS. The risk of loss of any goods covered by this Purchase Order shall not pass to Buyer until delivery occurs of such goods to Buyer at its plant or other place of receipt designated by Buyer.
20. REMEDIES AND DAMAGES. It is understood that Buyer is relying on delivery of the goods specified on the reverse side of this Purchase Order on the date so specified and that delay in delivery will result in serious losses to Buyer. It is agreed, therefore, that any delay in delivery of the goods specified on the reverse side of this purchase order, regardless of cause and regardless of whether Supplier had any control over the cause that resulted in delay. Supplier shall, if Buyer so elects and demands, pay to Buyer, or Buyer may deduct from the price, as the case may be, an agreed to sum per day as liquidated damages to compensate for losses incident to the delay [a percentage of the contract price could be substituted for the sum certain amount]. The assessment of such sums shall terminate on delivery of the goods or the effective realization of cover by Buyer pursuant to UCC § 2-712, or any other relevant and applicable provision, and in no event, shall exceed an agreed to percentage of the total contract amount. The damages here liquidated are confined to losses resulting from delay in delivery and shall not affect such other rights and remedies as Buyer may have under law or equity including, but not limited to, the Uniform Commercial Code, any federal, state, or local law, as applicable. Should Buyer not elect to demand said payment as liquidated damages, nothing herein shall limit or affect such other rights and remedies as Buyer may have under law including, but not limited to the Uniform Commercial Code, any federal, state, or local law, as applicable, including liability for all Buyer’s consequential, incidental, and special damages.
21. INDEMNIFICATION. Service Provider shall at all times indemnify and hold harmless Terumo, their successors and assigns and any of their officers, directors, members, employees, representatives, and/or agents, or each of them, from and against any and all claims, damages, liabilities, costs, and expenses, including, without limitation, fees and disbursements of counsel and court costs and expenses incurred by Terumo arising out of or relating to: (a) Service Provider’s negligent acts or omissions in connection with the Services performed hereunder; (b) Service Provider’s breach of this Agreement, including without limitation, Service Provider’s warranties and representations hereunder and Service Provider’s obligations under Section 10 (Compliance Terms); (c) violation of any applicable laws or applicable policies, the violation of which are as determined in Terumo’s sole discretion; (d) any allegation or claim that Services performed by Service Provider are actionable as libel or slander; and/or (e) any allegation or claim that the Materials or Service Provider’s use of licensed information or products infringe a copyright, or other known intellectual property right, including, without limitation, rights in patent, trademark, trade dress, or right of publicity or privacy, misappropriates a trade secret, or constitutes an act of piracy or plagiarism.
22. ACCEPTANCE AND MODIFICATIONS. None of the terms and conditions contained in this Purchase Order may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Buyer and delivered by Buyer to Supplier, and each shipment received by Buyer from Supplier shall be deemed to be only upon the terms and conditions contained in this Purchase Order except as they may be added to, modified, superseded or otherwise altered, notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice or other form of Supplier and notwithstanding Buyer’s act of accepting or paying for any shipment or similar act of Buyer.
23. EFFECT OF ILLEGALITY. If any provision of this Purchase Order is deemed to be illegal or unenforceable the remainder of this Purchase Order shall not be affected thereby.
24. In order to enable Buyer to determine if any proposed change in materials or product(s) will have any effect on the ultimate safety and/or efficacy, the supplier agrees to notify Buyer in writing, at least 6 months prior to making a change, in any of the following aspects of the product(s) regardless of whether the change is called out in the raw material specification or drawing: Major change in quality system/status, source of materials, site of manufacture, composition of any raw material, method of producing, processing or testing, change in contractors for producing, processing or testing, or component specification.
25. CONFIDENTIALITY OBLIGATIONS. Supplier may receive Confidential Information of Buyer. Supplier agrees, at all times: (i) to regard and preserve as confidential such Confidential Information; (ii) to refrain from directly or indirectly publishing or disclosing any part of such Confidential Information; (iii) to refrain from using Confidential Information except as required in connection with performance under this Purchase Order; and (iv) to refrain from any other acts or omissions that would reduce the value of such Confidential Information to Buyer. Supplier agrees to require all of its employees, agents, representatives, or other consultants to whom Confidential Information must be disclosed in order to perform under this Purchase Order to sign a non-disclosure agreement containing limitations on disclosure and use substantially similar to the limitations herein. Supplier acknowledges that Buyer’s disclosure of Confidential Information (including that which is a process, machine, manufacture, or composition of matter) is not intended to be an offer for sale or public use. If Supplier believes that Supplier is required by law or a competent regulatory authority to disclose any Confidential Information, Supplier shall provide notice to Buyer, to the greatest extent possible, prior to making such disclosure so as to allow Buyer time to undertake legal or other action to prevent such disclosure or otherwise obtain confidential treatment of such disclosure. Supplier shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to any Confidential Information so disclosed.
26. INSURANCE. Supplier shall maintain the following insurance during the term of this Purchase Order in amounts adequate to satisfy Supplier’s insurable obligations under this Purchase Order: (i) Commercial general liability; and (ii) Workers’ compensation insurance or permitted self-insurance as required by statute.
27. Supplier is responsible for complying with Global Chemical Regulations and materials of concern and supplying this information to any third party that Supplier contracts, as required for performance under this Purchase Order.
28. HAZARDOUS MATERIALS: Supplier shall notify Buyer of every article supplied hereunder which contains material which are hazardous or injurious to the health or physical safety of persons even though that hazard or injury may only occur due to mishandling or misuse of the article. In addition, Supplier shall identify the hazardous or injurious material to human beings, and the physical manifestations that could result. For each article so identified, Supplier shall supply to Buyer a Safety Data Sheet, warning labels, and other instructional material appropriate to warn persons of the hazard and effects of contact with the material.
29. FORCE MAJEURE. If a party is not to be able to perform a material obligation under this Agreement due to any event of force majeure, including but not limited to an act of God, war, terrorism, sabotage, civil commotion, governmental action, fire, pandemic, epidemic, storm, flood, or explosion, (each a “Force Majeure Event”) for a period of thirty (30) days or more, the other party may terminate this Agreement without liability or penalty. In addition to its right to termination, Company or any Participating Entity will be entitled to cancel any affected Purchase Orders if the Force Majeure Event would result in a delay of more thirty (30) days without liability or penalty. Events already known by the parties at the time of contracting and those that continue after the initial impact is resolved, are not deemed to be a Force Majeure Event. The failure of Supplier or a contractor, subcontractor, or vendor of Supplier, will not constitute a Force Majeure Event, unless such failure is caused by the Force Majeure Event itself. Notwithstanding the foregoing, the following circumstances shall not, under any circumstances, qualify as a Force Majeure Event on the part of Supplier: (i) shortage of personnel, production materials or resources; (ii) strikes; (iii) breach of contract by contractors, subcontractors, or vendors of Supplier; (iv) financial problems or hardships of Supplier; or (v) the inability of Supplier to secure the necessary licenses in respect of software to be supplied or the necessary legal or administrative permits or authorizations in relation to the Products. Immediately upon cessation of the Force Majeure Event, the party affected by such event will notify the other party in writing and will immediately take steps to recommence or continue the performance that was suspended.
30. DISPUTE RESOLUTION CLAUSE. In the event of a dispute arising out of or in connection with this Agreement (a “Dispute”) between Supplier and Company or any Participating Entity, those parties will attempt to resolve such Dispute as set forth herein. The disputing party shall provide the other party with a written Notice of Dispute setting forth the nature of the Dispute in reasonable detail, and identifying the member of senior management who will serve as the disputing party’s representative in the Dispute. The responding party shall respond no later than five (5) days’ following receipt of the Notice of Dispute, setting forth the responding party’s position with respect to the Dispute in reasonable detail, and identifying the member of senior management who will serve as the responding party’s representative in the Dispute. The representatives from each party will use commercially reasonable efforts to resolve the Dispute. Neither party shall commence proceedings related to the Dispute until the earlier of: (1) the designated representatives conclude that resolution through continued negotiation does not appear likely; or (ii) fifteen (15) days following the responding party’s receipt of the Notice of Dispute. Notwithstanding the foregoing, a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief. In no event will any Participating Entity that is not a party to a Dispute be liable for any obligations or liabilities of any other Participating Entity that is a party to said Dispute or otherwise be penalized as a result of said Dispute.
31. NON-SOLICITATION. During the Term and for a period of one (1) year after the expiration or earlier termination of the Agreement, without obtaining the prior written consent of the Company, Supplier and any of its affiliates (each, a “Restricted Party”) shall not directly or indirectly, for itself or on behalf of another person or entity, (a) hire, solicit for employment, or otherwise induce, influence, or encourage to terminate employment , or (b) employ or engage as an independent contractor, any current or former employee of TAH or any Participating Entity with whom the Restricted Party had contact in connection with this Agreement; provided however, that these obligations shall not apply to a general solicitation that is not targeted specifically at any employees of the Company. This Section will survive the expiration or earlier termination of this Agreement.