Terms and Conditions of Purchase 10142016 (rev2)
Entire Agreement. Any purchase order (“Purchase Order”) is between Technimark or its affiliate (“Technimark”) and the seller identified as Vendor, each as named on the face of this Purchase Order (“Vendor”). “Goods or Services” shall mean any materials, merchandise, equipment, supplies, services, or other products or services ordered. Vendor acknowledges that certain Goods purchased hereunder may be incorporated into products regulated under the U.S. Food, Drug and Cosmetic Act (“Act”). Notwithstanding any other dealing or actual performance, except as otherwise explicitly agreed upon by Technimark in writing, any conflicting, different or additional terms are expressly rejected. Any of the following acts by Vendor shall constitute acceptance of this Purchase Order and the terms and conditions herein, regardless of any addition of terms and conditions by Vendor: a.) written acceptance, which shall include email transmission, or b.) commencement of performance. Acceptance of this offer is expressly limited to the terms stated herein.
Price, payment terms and invoicing. This is a firm price order. Vendor shall not charge Technimark at a price higher than the price listed or a differing quantity from that which is listed on the Purchase Order without Technimark’s written consent, except that should Vendor during the term of this Purchase Order reduce its market price for such Goods or Services, Technimark shall be charged at that lower price while that price is in effect. Unless otherwise stipulated on the Purchase Order, payment terms shall be 60 days from the date of related invoice. All related documents shall clearly reference the Purchase Order number. Failure to include this information may cause payment delays. Invoices shall separately state the applicable amount of sales, use, VAT or any other applicable tax.
Risk of Loss/Regulatory requirements. Unless otherwise specified in the Purchase Order, delivery of Goods or Services is to be F.O.B Technimark’s plant. All shipments shall include any necessary signed certification documents. For healthcare related products, Goods should be stored and shipped on heat treated pallets per ISPM 15. For lot tracked raw materials, a Certificate of Compliance must be provided. Furthermore, Vendor agrees to comply with all applicable regulations, standards, directives and mandates including but not limited to RoHS, REACH, Conflict Minerals and Technimark’s Internal Sustainability Policy. If required by law, an applicable Material Safety Data Sheet (“MSDS”) and labeling will precede or accompany each shipment by Vendor. Vendor shall further provide Technimark with updated MSDS’s and labeling as required by law. Vendor must supply documentation showing such compliance within thirty (30) days of receipt of request. Vendor agrees that it shall comply and has complied with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, the Act. Vendor shall provide, in a timely manner, such assistance and information as Technimark reasonably requests to fulfill its reporting obligations for the Goods and Services and each product into which the Goods and Services may be incorporated. Vendor quality management procedures, device history records and all batch and validation records related to the Goods and Services shall be maintained by Vendor in accordance with the requirements of applicable laws and shall be made available for inspection by Technimark, its representatives and/or any relevant regulatory authorities. If at any time after acceptance of the Purchase Order by Vendor or delivery and/or acceptance of the Goods and Services by Technimark, all or any part of the Goods and Services become subject to a voluntary or involuntary recall by any government agency or corrective action by Vendor, Vendor shall assume responsibility and costs for implementing and complying with such recall according to applicable laws, regulations, and government order, including costs arising from the return and/or replacement of such Goods and Services, to the extent that the Goods and Services do not conform to Technimark specifications or contain latent defects that resulted in the recall. Vendor shall be responsible for all communications necessary to such recall.
Warranties. Vendor warrants that the Goods or Services described in the Purchase Order shall conform to the specifications, drawings and or/revision described in the Purchase Order (“Specifications”), be free from defects in materials and workmanship and fit for its intended use, if known, the Goods will be manufactured in accordance with applicable current Good Manufacturing Practices and regulatory standards and that Vendor will supply good title to the Goods and Services, free and clear from all liens, claims and encumbrances. This warranty shall survive acceptance, inspection, testing and payment. Vendor shall undertake to promptly perform all activities necessary to correct any breach of warranty in a manner acceptable to Technimark, at the cost of Vendor. If Vendor is unable to repair or replace such defective Goods and Services, Technimark reserves the right to contract or otherwise repair or replace such defective Goods and Services, at Vendor’s cost.
Change Control Requirements. Vendor shall not make any change or deviation to the Goods or Services covered specifically by this Purchase Order without Technimark’s written consent. Change (“Change”) includes changes to i) design or formulation, ii) raw materials used, iii) measurement, testing and/or acceptance criteria, iv) manufacturing location, or v) methods of manufacturing. Additionally, Vendor must notify Technimark if Vendor does not have the current drawing. Prior to shipment, Vendor must have notification in writing of any Change and such Change must be acknowledged.
Indemnification. Vendor shall indemnify, defend, and hold Technimark and Technimark’s affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives harmless from all losses and claims based upon, relating to or arising out of i.) breach of warranty, failure to meet specifications or failure to comply with the change control provisions herein ,ii.) negligent or willful acts or omissions of Vendor or its officers, employees, subcontractors or agents, and/or iii.) any actual or alleged infringement or misappropriation of any patent, trademark, copyright, trade secret or any actual or alleged violation of any other intellectual property rights arising from or in connection with the Goods or Services.
Termination. Technimark may immediately terminate, upon written notice to Vendor, all or any of this Purchase Order without obligation to Vendor if Vendor materially breaches any term of this Purchase Order or if Vendor becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors. Additionally, Technimark may terminate all or any part of this Purchase Order for its convenience at any time, upon written notice to Vendor. Vendor shall promptly take any necessary action to terminate the work as provided in the notice to minimize any associated costs for the terminated work. If Technimark terminates for convenience, Technimark will negotiate with Vendor payment for Vendor’s completed finished goods, work in process, or raw materials which have been expended to fulfill and are allocable to this Purchase Order. Such amount shall not exceed the value of this Purchase Order, and shall be further limited to a maximum of 30 days of previous supply.
Force Majeure and Right to Audit. If Vendor is prevented from performing any of its obligations hereunder due to any cause outside of its control, including but not limited to fire, explosion, flood or other acts of God, acts, regulations or laws of any government, war or civil commotion, strike, lock-out or any type of labor disturbances or disruption of public utilities or transportation services, Vendor shall as promptly as possible, but in no case later than 24 hours, notify Technimark of such an occurrence and exercise all reasonable efforts to eliminate the disruption and to resume performance of its obligations as soon as possible. At its option, upon a minimum of ten days’ notice, Technimark shall have the right to inspect and audit Vendor’s facilities being used in performance of the Goods and Services to ensure compliance with all specifications, regulations and the provisions in this agreement. In the event the federal government requests an inspection of the manufacturing facilities and records relative to the Goods and Services purchased hereunder, Vendor hereby agrees that said inspection shall be permitted.
Insurance. Unless otherwise stipulated on any Purchase Order, the Vendor shall maintain, at their own expense, general liability insurance which includes product liability coverage of at least $1,000,000 per occurrence, worker’s compensation/employer’s liability coverage as required by law of at least $500,000 per accident, a business automobile policy with minimum coverage of $1,000,000 combined single limit, and umbrella coverage with a limit of at least $2,000,000. In addition, this insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to Technimark. There shall be no endorsement or modification to make it excess over other available insurance; alternatively, if the policy states that it is excess or pro rata, the policy shall be endorsed to be primary with respect to Technimark as additional insured. Vendor waives all rights against Technimark and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the insurance maintained pursuant to these terms and conditions. Vendor shall provide Technimark with a certificate confirming this coverage prior to beginning work, and provide that Technimark be named as an additional insured on such policies, except that the failure of Vendor to do so shall not relieve Vendor of the obligations herein.
Confidentiality. Any and all drawing, data, specifications, tools, materials and other information supplied by Technimark to Vendor shall remain Technimark’s property and shall not be disclosed to any third party, other than to a government or judiciary body. This Purchase Order and its details are confidential between Technimark and Vendor and none of the details shall be published or disclosed to any third party without Technimark’s written permission.
Assignment. No provision or obligation under this Purchase Order shall be delegated or assigned by Vendor without the prior written consent of Technimark.
Invalidity, Waivers and Remedies. The invalidity in whole or part of any term of this Purchase Order 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 or breach of any terms of this Purchase Order by Technimark shall constitute a waiver of any other breach of such term.
Governing Law. This Purchase Order shall be construed in accordance with the laws of the state of North Carolina.