SURGICAL PRODUCT SOLUTIONS LLC
STANDARD TERMS AND CONDITIONS OF PURCHASE
Last Updated October 12, 2018
- AGREEMENT. These Standard Terms and Conditions of Purchase (“Terms and Conditions”) along with any purchase orders or purchase offers (each, a “Purchase Order”), any releases, requisitions, work orders, shipping instructions, supplemental terms and conditions and any other document of Surgical Product Solutions LLC, a Pennsylvania limited liability company (“Buyer”), including without limitation Buyer’s Quality Assurance & Service Guarantee available at https://www.surgicalproductsolutions.com/docs/SPS-Quality-Assurance.pdf and incorporated herein by reference, whether expressed in written form or by electronic data interchange provided by Buyer (collectively, the “Agreement”), will exclusively govern the purchase of goods by Buyer and represents the entire agreement between Buyer and the vendor set forth in the applicable Purchase Order (including such vendor’s agents or suppliers, “Seller”) with respect thereto. Acceptance of Buyer’s purchase order shall constitute Seller’s agreement to comply with and be bound by the Agreement, including but not limited to these Terms and Conditions.
- ACCEPTANCE OF PURCHASE ORDERS. Buyer’s commitment to purchase goods from Seller arises only upon Buyer’s issuance of a Purchase Order to Seller and Seller’s acceptance or deemed acceptance of such Purchase Order. Any forecasts, commitments, projections, representations about quantities to be purchased or other estimates provided to Seller are for planning purposes only and shall not be binding upon Buyer, and Buyer shall not be liable for any amounts incurred by Seller in reliance on such estimates. Acknowledgement of a Purchase Order by any means, including without limitation, by supply of the goods called for by a Purchase Order, shall be deemed acceptance of such Purchase Order. The terms set forth in a Purchase Order take precedence over any alternative terms in any other document connected with the applicable transaction except in the case of a direct conflict with these Terms and Conditions, in which case these Terms and Conditions shall prevail unless the parties have expressly and specifically agreed in writing that the conflicting Purchase Order terms are intended to override these Terms and Conditions in the event of a conflict. A Purchase Order shall not constitute an acceptance by Buyer of any offer to sell, any quotation, or any proposal by Seller. Reference in a Purchase Order to any such offer to sell, quotation or proposal shall in no way constitute a modification of any of the terms of the Agreement or such Purchase Order. ANY ATTEMPTED CONFIRMATION OR ACKNOWLEDGMENT BY SELLER THAT CONTAINS TERMS INCONSISTENT WITH OR IN ADDITION TO THE TERMS OF THE APPLICABLE PURCHASE ORDER OR BUYER’S TERMS AND CONDITIONS IS NOT BINDING UNLESS SPECIFICALLY ACCEPTED BY BUYER IN WRITING. THE AGREEMENT EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS OF THE APPLICABLE PURCHASE ORDER AND BUYER’S TERMS AND CONDITIONS, AND BUYER HEREBY OBJECTS TO AND REJECTS ANY DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY RESPONSE TO ANY OF ITS PURCHASE ORDERS. EACH PURCHASE ORDER EXPRESSLY INCLUDES ALL IMPLIED WARRANTIES AND ALL OF BUYER’S REMEDIES SET FORTH IN THE UNIFORM COMMERCIAL CODE. EXCEPT AS STATED ABOVE, THE TERMS OF THE AGREEMENT ARE THE SOLE AND EXCLUSIVE TERMS ON WHICH BUYER AGREES TO BE BOUND.
- PRICES AND PAYMENTS.
(a) Buyer shall pay all invoices in accordance with the payment terms set forth in the applicable Purchase Order. Unless the face of such Purchase Order states to the contrary, all prices are (a) firm and not subject to increase or additional charges; (b) in U.S. dollars; and (c) inclusive of all duty and taxes other than sales or use taxes Seller is required by law to collect from Buyer. Such sales or use taxes shall not be included in Seller’s invoice if Buyer indicates that the goods are exempt from such taxes. Applicable taxes shall be separately stated on Seller’s invoice. Seller warrants the pricing for any goods or services shall not exceed the pricing for the same or comparable goods offered by Seller to third parties. Seller shall promptly inform Buyer of any lower pricing levels for same or comparable goods or services, and the parties shall promptly make the appropriate price adjustment.
(b) Unless otherwise stated on the face of a Purchase Order, payment terms are due net thirty (30) days from the later of the required date identified on such Purchase Order, the received date of the goods in Buyer’s receiving system or the date of receipt of valid invoice by Buyer. Buyer shall be entitled to reject Seller’s invoice if it fails to include Buyer’s applicable Purchase Order number or is otherwise inaccurate, and any resulting delay in payment shall be Seller’s responsibility. No extra charges of any kind will be allowed unless specifically agreed in writing by Buyer. Buyer reserves the right to deduct from any amount due Seller for any goods ordered any amount Seller owes Buyer with respect to any claims of any nature whatsoever in favor of Buyer against Seller, whether or not related to the applicable Purchase Order and whether now existing or hereafter arising. Buyer reserves the right to withhold any payments due Seller, without penalty or forfeiture, until all disputes (whether or not related to a Purchase Order and whether or not existing or arising in the future) between Buyer and Seller, are settled. Any assignee of Seller’s rights to payment hereunder shall be subject to Buyer’s rights under this paragraph.
- WARRANTIES. Seller covenants, represents and warrants to Buyer, in addition to all warranties expressed or implied at law, that all goods supplied by Seller and the use, design, construction, assembly, production, shipment, sale, packaging, labeling, packing, advertising, instructions and warnings or lack thereof and other printed matter furnished or authorized by Seller, shall (a) be un-used (except for such goods which are clearly described on the face of the Purchase Order to be used) and of merchantable quality, free from defects in design, workmanship and/or materials, including, without limitation, such defects as could create a risk of injury or damage to persons or property; (b) be fit and suitable for their intended end use; (c) not violate or breach any agreement that Seller may have with any other person or entity, including any other manufacturer, distributor or end user; (d) conform to all specifications and other descriptions set forth or incorporated in each Purchase Order; (e) be properly stamped, tagged, labeled, or marked with such information as may be required by any applicable law, regulation or order or by Buyer; (f) be within any expiration date indicated on the packaging of the goods; (g) have been stored under proper conditions to preserve the quality of the goods; (h) meet all applicable requirements of all applicable United States federal, state and local laws and regulations; (i) have clear title, free of all liens and encumbrances; and (j) be free of claims of third parties of any nature whatsoever arising out of or related to the goods or the Purchase Order. Seller also covenants to use commercially reasonable efforts to pass-through, or arrange for assignment of, any representations and warranties applicable to the goods covered by the applicable Purchase Order and made to Seller by any manufacturer, distributor or other third-party with respect to such goods. Seller’s representations and warranties herein shall survive the delivery, inspection and acceptance of goods to or by Buyer and any resale of goods by Buyer, and any attempt by Seller to limit, disclaim or restrict any such warranties or remedies by acknowledgment or otherwise shall be null, void and ineffective. The above warranties shall apply for twenty-four (24) months from delivery of goods, or such longer period of time as customarily provided by Seller or as provided under the Uniform Commercial Code, as extended for delays such as those due to non-conforming goods and services. The warranties shall apply to Buyer, its successors, assigns and the end users of goods and services covered by each Purchase Order. If any of the goods are found to be defective or otherwise not in conformity with the warranties in this Section during the warranty period, then, Buyer, in addition to any other rights, remedies and choices it may have by law, contract or at equity, and in addition to seeking recovery of any and all damages and costs emanating therefrom, at its option and sole discretion and at Seller’s expense may: (a) require Seller to replace nonconforming goods with goods and/or services that conform to all requirements of the applicable Purchase Order; (b) take such actions as may be required to cure all defects and/or bring the goods into conformity with all requirements of the applicable Purchase Order, in which event all related costs and expenses (including, but not limited to, material, labor and handling costs) and other reasonable charges shall be for Seller’s account; and/or (c) reject and return all or any portion of such goods. Any repaired or replaced goods shall carry warranties on the same terms as set forth above, with the warranty period being the greater of the original unexpired warranty or twenty-four (24) months after repair or replacement.
- CHANGES. Buyer may at any time make changes in written, electronic or facsimile form to any Purchase Order, including changes in the quantity, delivery time or place, methods of shipment, warranties, packing, or time or place of delivery at any time. Any Seller claim for adjustment will be deemed waived unless asserted within ten (10) days from Seller’s receipt of the change or suspension notification, and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change.
- COMPLIANCE WITH LAWS. Seller represents, warrants, certifies and covenants (collectively “Covenants”) that it will comply with all laws applicable to the goods and/or the activities contemplated or provided under each Purchase Order, including, but not limited to, any national, international, federal, state, provincial or local law, treaty, convention, protocol, common law, regulation, directive or ordinance and all lawful orders, including judicial orders, rules and regulations issued thereunder, including without limitation those dealing with the health and safety, records retention and the transportation or storage of hazardous materials. Seller shall also comply with good industry practices, including the exercise of that degree of skill, diligence, prudence and foresight which can reasonably be expected from a competent Seller of the goods. Seller further agrees at Buyer’s request to provide certificates relating to any applicable legal requirements or to update any and all of the certifications, representations and warranties under the Agreement in form and substance satisfactory to Buyer. With respect to all goods or other materials sold or otherwise transferred to Buyer hereunder, Seller shall provide all relevant information, including without limitation, material safety data sheets in the language and the legally required format of the location to which the goods will be shipped and mandated labeling information required pursuant to applicable requirements.
- DELIVERY AND PASSAGE OF TITLE.
(a) Time is of the essence of each Purchase Order. Buyer shall be entitled to recover damages that it incurs as a result of Seller’s failure to perform as scheduled. Unless expressly stated to the contrary, Buyer’s remedies are cumulative and Buyer shall be entitled to pursue any and all remedies available at law or equity. If delivery of goods is not completed by the date set forth in a Purchase Order, Buyer reserves the right, without liability and in addition to its other rights and remedies at law, in equity or under the terms of the Agreement and/or such Purchase Order, to purchase elsewhere and hold Seller liable for any additional loss, cost, damage or expense incurred thereby. Seller shall pay any loss, cost, damage or expense resulting from the untimely receipt of the goods ordered. Seller shall notify Buyer immediately if it is unable to ship timely. Buyer shall have the right to refuse any goods with untimely delivery and to cancel the balance of a Purchase Order for any part of the goods due after untimely delivery of any installments. By accepting the untimely delivery of any installment, Buyer shall not be bound to accept future shipments nor be deprived of its right to return goods already accepted nor to claim damages for untimely delivery. If Buyer accepts any advance shipment (other than requested by it) under any Purchase Order, payment terms on such shipment shall be computed from the required shipping date.
(b) Unless otherwise stated on the face of a Purchase Order, goods shall be delivered FOB Buyer’s designated facility.
- ORDER POSTPONEMENT. Buyer shall have the right to require Seller to postpone shipment of goods covered by one or more Purchase Orders, and Seller shall take all reasonable steps to minimize costs during such suspension.
- ORDER TERMINATION WITHOUT CAUSE. In addition to Buyer’s right to terminate a Purchase Order for cause as provided below, Buyer may terminate the Agreement in whole or in part at any time upon notice to Seller. Any termination by Buyer whether for cause or otherwise, shall be without prejudice to any claims for damages or other rights of Buyer against Seller, and Seller shall continue performance of any outstanding Purchase Order(s) to the extent not terminated.
- RIGHT OF INSPECTION. Goods will be subject to Buyer’s inspection on arrival, notwithstanding prior payment to obtain discount. Defective goods will be returned at Seller’s expense and credit taken on settlements. Seller agrees to immediately replace defective goods so returned if the Buyer shall require, but the Buyer shall not be required to order or take replacements.
- RIGHT TO REFUSE GOODS. Without limiting any other right of Buyer herein, Buyer shall have the right to reject and refuse goods that are not in strict accordance with the terms of a Purchase Order, the specifications or industry standard, or which are different in quality or quantity from that ordered, or which are shipped other than as specified under such Purchase Order or which are believed by Buyer to violate a third party’s rights. Buyer may, at its sole discretion, either return rejected goods or hold the same at Seller’s risk and expense and may, in either event, charge the Seller with the cost of transportation, shipping, unpacking, examining, repacking, storing, reshipping and other like expenses. If Seller fails to accept goods returned by Buyer, then Buyer shall have the right to dispose of such goods by any means. If within thirty (30) days after a request by Buyer for direction regarding disposition of rejected goods, Seller does not respond to Buyer, then Buyer shall have the right to dispose of the goods by any means. Acceptance of any prior shipments contrary to a Purchase Order shall not be considered a waiver of Buyer’s right to return any or all of the goods and receive full credit therefore. Authorization for substitution of style, color, size, quantity or other departure from the terms of a Purchase Order, is permitted only upon the written, signed and dated consent of Buyer. Any claims made by Buyer for defective goods, shortages, returns, damages, or other claim of set off asserted as a result of Seller’s failure to comply with a Purchase Order will be charged back to Seller and the amount thereof deducted from payments to be made to Seller or, at Buyer’s option, will be promptly refunded to Buyer.
- RIGHT TO REJECT AND RETURN GOODS. Without limiting any other right of Buyer herein, Buyer may at any time after delivery of the goods (and whether or not the same have been accepted by Buyer) reject and return all or part of the goods if any part is found to be in a damaged or defective condition or if believed by Buyer to violate a third party’s rights. Seller shall refund to Buyer in full the price paid by Buyer for such returned goods. Any goods so returned shall be at Seller’s risk and expense, and Seller shall be responsible for all freight and handling charges.
- CONFIDENTIAL OR PROPRIETARY INFORMATION AND PUBLICITY. Seller shall keep confidential any technical, process, proprietary or economic information, including the terms of the applicable Purchase Order, furnished by Buyer in connection with the Agreement (the “Confidential Information”) and shall not divulge, directly or indirectly, the Confidential Information for the benefit of any other party without Buyer’s prior written consent. Except as required for the efficient performance of a Purchase Order, Seller shall not use or permit copies to be made of the Confidential Information without Buyer’s prior written consent. The restrictions in this Section regarding the Confidential Information shall be inoperative as to particular portions of the Confidential Information disclosed by Buyer to Seller if such information: (i) is or becomes generally available to the public other than as a result of disclosure by Seller; (ii) was available on a non-confidential basis prior to its disclosure to Seller; (iii) is or becomes available to Seller on a non-confidential basis from a source other than Buyer when such source is not, to the best of Seller’s knowledge, subject to a confidentiality obligation with Buyer, or (iv) was independently developed by Seller, without reference to the Confidential Information, and Seller can verify the development of such information by written documentation. Upon completion or termination of a Purchase Order, Seller shall promptly return to Buyer all Confidential Information received in connection with such Purchase Order, including any copies thereof. Any knowledge or information, which Seller shall have disclosed or may hereafter disclose to Buyer and which in any way relates to the goods purchased under a Purchase Order, or otherwise relates to the Agreement, shall not be deemed to be confidential or proprietary and shall be acquired by Buyer free from any restrictions (other than a claim for infringement) as part of the consideration for the Agreement and notwithstanding any copyright or other notice thereon, Buyer shall have the right to use, copy, modify and disclose the same as it sees fit.
(a) Termination for Default. Except for delay due to causes beyond the control and without the fault or negligence of Seller (lasting not more than 60 days), Buyer, without liability, may by written notice of default, terminate the Agreement or the whole or any part a Purchase Order: (a) if Seller fails to perform within the time specified in such Purchase Order or in any written extension granted by Buyer; (b) if Buyer receives notice of an allegation of proprietary rights infringement or believes that there may be an infringement of proprietary rights regarding the goods that are the subject matter of such Purchase Order; or (c) if Seller fails to comply with any of the other terms of such Purchase Order. Such termination shall become effective if Seller does not cure such failure within ten (10) days of receiving notice of default. Seller shall continue performance of any other outstanding Purchase Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar goods or services. As an alternate remedy and in lieu of termination for default, Buyer, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, making Seller liable for any costs, expenses or damages arising from any failure of Seller’s performance. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of a Purchase Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with Buyer’s delivery schedule, Buyer may require delivery by fastest method and charges resulting from the premium transportation must be fully prepaid by Seller. Buyer’s rights and remedies in this clause are in addition to any other rights and remedies provided by law, equity or under the Agreement.
(b) Termination for Insolvency/Prolonged Delay. If Seller ceases to conduct its operations in the normal course of business or fails to meet its obligations as they mature or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, a receiver for Seller is appointed or applied for, an assignment for the benefit of creditors is made or an excused delay (or the aggregate time of multiple excused delays) lasts more than 60 days, Buyer may immediately terminate this Agreement without liability, except for goods delivered and accepted within a reasonable period after termination (which will be paid for at the applicable Purchase Order price).
- INDEMNITY. Seller shall defend, indemnify, release and hold harmless Buyer, its directors, officers, employees, agents representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims (including without limitation claims of negligent or willful misconduct or breaches of warranty), demands, losses, judgments, fines, penalties, damages, costs, expenses, or liabilities (including without limitation claims for personal injury or property or environmental damage, claims or damages payable to customers of Buyer) arising from any act or omission of Seller, its agents, employees, or subcontractors, except to the extent attributable to the sole and direct gross negligence of Buyer. Seller further agrees to indemnify Buyer for any attorneys’ fees or other costs that Buyer incurs in the event that Buyer has to file a lawsuit to enforce any indemnity or additional insured provision of the Agreement.
- LIMITATION OF LIABILITY. Buyer shall not be liable for any special, incidental, punitive or consequential damages arising out of or related to the Agreement, including any termination, rejection, or revocation of acceptance of all or any part of the applicable Purchase Order or any goods. In no event shall Buyer’s liability hereunder exceed the purchase price of the applicable Purchase Order giving rise to the claim or action.
- GOVERNING LAW. The Agreement (and each Purchase Order contained therein) shall in all respects be governed by and interpreted in accordance with the substantive law of the Commonwealth of Pennsylvania, excluding its conflicts of law provisions.
- DISPUTE RESOLUTION. Except for claims seeking equitable relief, the parties shall attempt to amicably resolve any controversy, dispute or difference arising out of the Agreement and/or a Purchase Order. Except for claims seeking equitable relief, any unresolved dispute shall be referred to a qualified independent arbitrator acceptable to both parties. Any arbitration under the Agreement shall take place in Pittsburgh, Pennsylvania. The arbitrator will have no authority to award any damages that are excluded by the terms of the Agreement. In the event that a suitable independent arbitrator cannot be identified and agreed on by both parties within twenty (20) days of the first demand by a party for arbitration, then the parties agree that a single arbitrator will be appointed by the American Arbitration Association (AAA). All arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA, but shall be administered by AAA only if AAA appoints the arbitrator. The arbitrator may award attorney’s fees and costs as part of the award. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. All proceedings shall be conducted in the English language, unless otherwise stated in the applicable Purchase Order. The award shall be final and binding on both Buyer and Seller, and the parties hereby waive the right of appeal to any court for amendment or modification of the arbitrator’s award.
- WAIVER. No claim or right arising out of a breach of the Agreement or a Purchase Order can be discharged in whole or in part by a waiver or renunciation unless supported by consideration and made in writing signed by the aggrieved party. Either party’s failure to enforce any provisions hereof shall not be construed a waiver of a party’s right thereafter to enforce each and every such provision.
- ENTIRE AGREEMENT. The Agreement, with documents as are expressly incorporated by reference, is intended as a complete, exclusive and final expression of the parties’ agreement with respect to the subject matter herein and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. No course of prior dealings and no usage of the trade shall be relevant to determine the meaning of the Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. The term “including” shall mean and be construed as “including, but not limited to”, unless expressly stated to the contrary. The invalidity, in whole or in part, of any of the foregoing articles or paragraphs of the Terms and Conditions shall not affect the remainder of such articles or paragraphs or any other article or paragraph of the Agreement, which shall continue in full force and effect. Further, the parties agree to give any such article or provision deemed invalid, in whole or in part, a lawful interpretation that most closely reflects the original intention of Buyer and Seller. All provisions or obligations contained in the Agreement, which by their nature or effect are required or intended to be observed, kept or performed after termination or expiration will survive and remain binding upon and for the benefit of the parties, their successors (including without limitation successors by merger) and permitted assigns.