- The terms and conditions contained herein and the purchase order for the purchase of the goods specified on the face of such purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) constitutes the whole offer by Monteris Medical Corporation (the “Buyer”) for the purchase of the Goods from the Seller in accordance with and subject to these terms and conditions (the “Terms” and together with the terms and conditions on the face of the purchase order, the “Order”). Subject to Sections 1(b) and (c) of these Terms, this Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.
- In the event that Buyer and Seller have entered into an agreement governing their relationship with regard to the Goods or the purchase and sale of such Goods, such agreement is hereby incorporated by reference and shall control in any instance of conflicting terms between such agreement and these Terms.
- In the event that Buyer and Seller have entered into a quality agreement, such agreement is hereby incorporated by reference and shall control in any instance of conflicting terms between such agreement and these Terms.
- These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
- Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
- For Buyer-designed specifications, Seller shall not change material or process without written approval from Buyer.
This Order is not binding on Buyer until Seller accepts the Order in writing or starts to perform in accordance with the Order. Buyer may withdraw the Order at any time before it is accepted by Seller.
Seller shall deliver the Goods in the quantities and on the date(s) specified in the purchase order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within 30 days of Seller’s receipt of the Order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller.
If Seller delivers more than 10% or less than 10% of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
All Goods shall be delivered to the address specified in the purchase order (the “Delivery Location”) during normal business hours or as otherwise instructed by Buyer.
Delivery shall be made as set forth in the purchase order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation.
Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Goods as specified in the Order.
All Goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense. All packaging shall be marked with the appropriate Country of Origin Label as required by U.S. Customs and Boarder Protection Regulation 19 CFR Part 134.
Amendment and Modification
No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
Inspection and Rejection
The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to:
- reject the Goods and require replacement of the rejected Goods;
- accept the Goods at a reasonably reduced price; or
- if Seller cannot provide option (a) or (b) in a manner reasonably acceptable to the Buyer, the Buyer can rescind the order in its entirety.
If Buyer requires replacement of the Goods, Seller shall, at its expense, within 30 days replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 17. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods is the price stated in the purchase order (the “Price”). If no price is included in the purchase order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the purchase order, the Price includes all packaging, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within the number of days specified in the purchase order after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars, unless otherwise specified in the purchase order. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than 15 days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
Seller warrants to Buyer that for a period of 12 months from the Delivery Date (or such other period of time that is stated in the purchase order), all Goods will:
- be free from any defects in workmanship, material and design;
- conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; and
- be free and clear of all liens, security interests or other encumbrances.
These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, within 30 days replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
Each party against whom a claim for indemnification is made pursuant to this Order (the “Indemnitor”) shall indemnify and defend at all times, after the date this Order is accepted, such person making the claim (the “Indemnitee”) and any person or entity, stockholder, subsidiary, affiliate, director, officer, agent and employee of the Indemnitee (the “Indemnitee Parties”) against:
- any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee and penalty, or other charge, other than any Litigation Expenses (as defined below) (“Losses”), arising out of or relating to this Order; and
- any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting any claim for indemnification under this Order, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements (collectively, “Litigation Expenses”).
Mutual Intellectual Property Indemnification
Seller represents and warrants to Buyer that the Goods will not infringe or misappropriate any third party’s patent or other intellectual property rights. Indemnitor shall, at its expense, defend, indemnify and hold harmless against any and all Losses and Litigation Expenses arising out of or in connection with any claim that the Indemnitee Parties’ use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall the Indemnitor enter into any settlement without Indemnitee’s or Indemnitee Parties’ prior written consent.
Compliance with Law
Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order.
Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 30 days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not materially performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason permitted hereby, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
Limitation of Liability
Nothing in this Order shall exclude or limit:
- Seller’s liability under Sections 13, 14, 15 and 20 hereof, or
- Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is subject to a non-disclosure agreement entered into by the Buyer and Seller, as may be amended from time-to-time, and such agreement is incorporated by reference.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (”Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than 30 days, Buyer may terminate this Order immediately by giving written notice to Seller.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent:
- to an affiliate or subsidiary of the Buyer or
- in connection with a “change of control” of Buyer, whether by sale of assets, sale of stock, merger, consolidation or otherwise.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
No Third-Party Beneficiaries
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the purchase order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice shall be effective upon personal delivery or facsimile confirmation, one business day after delivery to a nationally recognized overnight courier, or five days after sent by certified or registered mail
If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Warranties, Mutual Intellectual Property Indemnification, Compliance with Laws, Confidentiality, Governing Law, and Survival.