STANDARD PURCHASE ORDER ACCEPTANCE TERMS AND CONDITIONS (Rev 4) 03312016
In the case of any conflict between these terms and conditions and a separate signed supply agreement by authorized representatives of any affiliate of CI Medical Technologies, Inc., dba Technimark(“Technimark”) and the customer party hereto (“Customer”), the terms of such supply agreement shall govern.
PAYMENTS: Unless otherwise specified by Technimark, payment terms will be net 30 days.
RISK OF LOSS: Unless otherwise specified by Technimark, delivery of goods is to be F.O.B. Technimark’s plant.
WARRANTIES: Technimark warrants that the products described in the purchase order (the “Products”) shall conform in all material respects to the specifications described in the purchase order (the “Specifications”) except to the extent that such non-conformity in the Products is caused by or results from (i) Customer’s negligence or willful misconduct, (ii) the tools supplied by Customer, unless such errors are due solely to Technimark’s failure to perform ordinary maintenance on the tools, (iii) any defect in the raw materials not caused by an act or omission of Technimark, or (iii) the further manufacture, packaging or other processing thereof by Customer (collectively, the “Warranties”).
The Warranties are only extended to, and may only be enforced by Customer. For the avoidance of doubt, the Warranties do not include Products that have defects or failures resulting from (a) Customer’s design of Products, including but not limited to, design functionality failures and Specification inadequacies, (b) accident or disaster, or (c) neglect, abuse, misuse, improper handling, testing, storage or installation of Products by Customer or third parties.NOTWITHSTANDING THE FOREGOING, TECHNIMARK MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE QUALITY OR SUITABILITY OF RAW MATERIALS SPECIFIED BY CUSTOMER WITHOUT INPUT FROM Technimark. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
ACCEPTANCE OF PRODUCTS;
Non-conforming Products: Any Products supplied hereunder that do not conform to the Specifications or Warranties shall be deemed “Non-Conforming Products.” Customer shall notify Technimark of its rejection of any Non-Conforming Products within 45 days after shipment of such Non-Conforming Products. If notified of the rejection within 45 days, Technimark shall, at Customer’s election, either repair or replace the Non-Conforming Products within a reasonable time, or provide Customer a refund for the purchase price of the Non-Conforming Products. Products not rejected by Customer within 45 days of shipment shall be deemed “Accepted.” Technimark shall have no responsibility to repair or replace Accepted Products, and shall have no further liability whatsoever, whether arising from breach of warranty or otherwise, for Accepted Products. For the avoidance of doubt, Technimark will only be liable for Non-Conforming Products if such products are rejected by Customer within 45 days of shipment, and Technimark’s sole liability for Non-Conforming Products will be limited to repair, replacement or refund of the purchase price of the Non-Conforming Products.
RAW MATERIALS:The Customer acknowledges that raw material price fluctuations may occur, and Technimark reserves the right upon notification to change prices for not-yet-delivered Products due to any increased costs related to the purchase of resin, packaging materials, other raw materials or shipping.
TOOLS: Technimark shall maintain all equipment, tooling and molds utilized in the manufacture, packaging and supply of the Products hereunder in good operating condition. Technimark shall perform routine maintenance and repair but Customer shall be responsible for obtaining or performing all non-routine maintenance, repair, refurbishment or replacement of tools, and all costs incurred by Technimark in relation thereto. Technimark shall exercise reasonable care in safeguarding all tools but shall have no liability to Customer with respect to the tools absent Technimark’ gross negligence or willful misconduct.
INDEMNIFICATION: Customer shall indemnify, defend, and hold Technimark and Technimark’ affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives (the “Technimark-Indemnified Parties”) harmless from all losses and claims based upon, relating to or arising out of (i) a defective Product design, (ii) errors caused by tools supplied by Customer, unless such errors are due solely to Technimark’ failure to perform ordinary maintenance on the tools, (iii) negligent or willful acts or omissions of Customer or its officers, employees, subcontractors or agents and/or (iv) any actual or alleged infringement or misappropriation of any patent, trademark, mask work, copyright, trade secret or any actual or alleged violation of any other intellectual property rights arising from or in connection with the Products, except to the extent that such infringement exists solely as a result of Technimark’s manufacturing processes. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL TECHNIMARK OR ITS AFFILIATES BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PENAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, RECALL OR ANY OTHER PECUNIARY LOSS) WHETHER FORESEEABLE OR UNFORESEEABLE, arising out of or relating to any of its obligations or duties under this Agreement OR OTHERWISE, EVEN IF TECHNIMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TECHNIMARK’S TOTAL LIABILITY FOR DAMAGES WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO Technimark for THE SPECIFIC product or products THAT GAVE RISE TO SUCH DAMAGES OR LOSSES UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE AMOUNTS PAYABLE HEREUNDER REFLECT THIS ALLOCATION OF RISK BETWEEN THE PARTIES.
INVALIDITY, WAIVERS, REMEDIES: The invalidity in whole or in part of any term of this purchase order acceptance terms and conditions shall not affect the validity of the remaining terms. All remedies herein reserved to Technimark shall be cumulative and in addition to any other remedies in law or equity. No waiver of breach of any term of this purchase order shall constitute a waiver of any other breach of such term.
Arbitration: Any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration before a panel of three (3) arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The parties hereby consent to the jurisdiction of the Federal District Courts in the State of Pennsylvania for the enforcement of these provisions unless such court is lacking jurisdiction, in which case any court with such jurisdiction shall enforce. TERMINATION: Technimark reserves the right to cancel this purchase order acceptance or any part thereof if Customer (i) breaches any of the provisions of this purchase order, (ii) becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors, or (iii) is delinquent in the payment of past due invoices. If the purchase order is changed, cancelled or terminated, in whole or in part, for any reason, Customer shall reimburse Technimark for the cost of any outstanding non-cancellable raw materials orders, raw material inventory, work in progress and finished goods inventory.
GOVERNING LAW: This purchase order shall be constructed in accordance with the laws of the state of Pennsylvania.