PURCHASE ORDER NOTICE:
The Terms and Conditions of Purchase (“Terms”) are available at [https://www.sonichealthcareusa.com], and are incorporated into and govern this Purchase Order. Both parties agree and intend to be bound to the Terms. With respect to future orders, Customer reserves the right to amend or modify the Terms at any time in its sole discretion by posting to its website or otherwise making such amended or modified terms available, in which case such amendments or modifications will apply to all subsequent orders accepted by Seller.
TERMS AND CONDITIONS
Sonic Healthcare USA, Inc. Terms and Conditions of Purchase
as of December 1, 2021
These Terms and Conditions of Purchase (“Terms”), available at [https://www.sonichealthcareusa.com], govern any Purchase Order (“PO”) indicating these Terms apply, issued by Sonic Healthcare USA, Inc. or any of its affiliates located in the United States (“Customer”), pursuant to which Customer is purchasing from the seller identified on the PO (“Seller”) the goods/products (“Products”) or Services (“Services”) specified in the PO.
THE PURCHASE OF ANY PRODUCTS OR SERVICES BASED ON A PO ISSUED BY CUSTOMER IS SUBJECT TO AND CONDITIONAL UPON SELLER’S ACCEPTANCE OF THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER (INCLUDING WITHOUT LIMITATION ANY TERMS CONTAINED IN OR ATTACHED TO SELLER’S QUOTE, ORDER CONFIRMATION, OR INVOICE) ARE EXPRESSLY OBJECTED TO BY AND WILL NOT BE BINDING UPON CUSTOMER, UNLESS SPECIFICALLY APPROVED IN WRITING BY CUSTOMER.
These Terms are deemed incorporated by reference into each PO, but to the extent there are any conflicts between the PO itself and these Terms, the PO itself shall control. Notwithstanding the foregoing, if an agreement covering procurement of the Products or Services described in the PO exists between Seller and Customer, the terms of such agreement shall prevail over any inconsistent terms herein.
1. PO Acceptance.
The PO shall be deemed accepted by Seller on the earlier of (a) shipment of Products or rendering of Services ordered, in total or in part, or (b) within 15 days of issuance by Customer, absent written notification to Customer of non-acceptance. Seller agrees to supply Products or Services to Customer in accordance with the terms of each accepted PO. Acceptance of the PO is expressly limited to and conditioned upon acceptance of the Terms, which cannot be altered or amended without Customer’s express written agreement. Acceptance of the PO is binding upon Seller and Seller’s successors, assigns, and delegatees.
By accepting the PO or any part of it, the Seller certifies that it, or its principals, are not debarred, suspended, or proposed for debarment by the Federal Government. Debarment, suspension, or proposed debarment by the Federal Government constitutes grounds for automatic termination of the PO.
Customer may cancel, revoke, change, amend, or modify all or any portion of a PO at any time prior to Seller’s acceptance by providing notice to Seller in writing. Customer may reschedule delivery of Products or Services under a PO in whole or in part at no additional charge, provided notice is given prior to the shipment date. Seller agrees to use reasonable efforts to accommodate any changes to a particular PO requested by Customer.
(a) Packing: Seller will preserve, pack, package, and handle the Products to protect the Products from loss or damage and in accordance with best commercial practices. Seller shall comply with all applicable laws and regulations relating to hazardous work, including without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal. Seller will include with each delivery of Products a packing list identifying the PO number, a description and quantity of each of the Products, and the date of shipment.
(b) Shipping: Seller shall ship Products to the Customer’s location indicated in the PO. Customer will notify Seller if Customer has any specific shipping requirements, and Seller agrees to comply with such shipping requirements. Seller assumes all responsibility for all shipping and delivery charges, including without limitation customs, duties, costs, and taxes, insurance, handling charges, and associated fees. No shipping or delivery charges will be charged to Customer unless expressly agreed to in writing by Customer.
(c) Delivery: Customer will notify Seller if Customer has any specific delivery requirements, and Seller agrees to comply with such delivery requirements. Seller acknowledges that time and place of delivery is of the essence with respect to performance of its obligations set forth in an accepted PO. Seller will immediately notify Customer if Seller’s timely performance under a PO is delayed or is likely to be delayed, and Customer may, in its sole discretion: revoke any acceptance; cancel the PO; receive a full refund of any amounts paid; purchase substitute Products or Services elsewhere; return at Seller’s risk and expense all or any part of a nonconforming delivery; and hold Seller accountable for any loss or additional costs incurred. Customer’s receipt of Seller’s notice or Customer’s receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right, or remedy Customer has under the PO or applicable law. Customer’s acceptance of Seller’s notice will not constitute Customer’s waiver of any of Seller’s obligations. Customer reserves the right to reject incomplete deliveries and to return them at Seller’s risk and expense.
(d) Title; Risk of Loss: Title shall pass to Customer upon Customer’s final acceptance of Products at Customer’s location. Risk of loss of all Products shall remain with Seller until receipt and final acceptance of the Products by Customer at Customer’s location.
(e) Required Shelf Life: At the time of delivery, all Products supplied under the PO shall have at least nine months remaining shelf life if the original shelf life indicated on the package or associated with the Product is one year or more, and at least six months remaining shelf life if the original shelf life of the package or associated with the Product is less than one year.
(f) Returns: Customer may return non-custom Products within thirty days for any reason for a full refund (other than shipping charges) and no restocking fees shall apply.
Customer shall have the right to inspect and test all Products and/or Services delivered under the PO at all reasonable times and places notwithstanding the terms of payment, and in any event, prior to final acceptance. Neither receipt nor payment for Products and/or Services shall constitute final acceptance. Customer may reject any or all items that are nonconforming, as determined by Customer’s sole reasonable judgment. Customer’s failure to inspect shall not relieve Seller of any of its responsibilities. Products rejected and Products shipped in quantities in excess of Customer’s PO may be returned at Seller’s expense. Payment, if any, made for any Products rejected hereunder shall be promptly refunded by Seller.
4. Payment Terms.
(a) Pricing: All prices shall be as stated in the PO and are firm and not subject to escalation. Customer is taxable based on the shipment destination and all applicable taxes are the responsibility of Customer. Seller represents and warrants that the prices set forth in the PO are at least as low as those currently being quoted by Seller to other customers for the same or similar Services or products, in like quantities, under similar circumstances. If no price is stated for any Product or Service, the price for that Product or Service shall be the lowest price currently quoted or charged by Seller for that Product or Service, but in no event higher than the price most recently quoted or charged to Customer by Seller for that Product or Service. If Seller reduces its prices for such Products or Services during the term of the PO, Seller shall correspondingly reduce the prices of Products or Services sold thereafter to Customer under the PO. Seller will promptly refund any amounts paid by Customer in excess of these pricing terms.
(b) Invoices: Invoices must be submitted to Customer within sixty days of the close of the applicable month in which Products were delivered or Services were rendered to Customer. Customer shall have no obligation to pay for invoices submitted beyond this sixty-day period. Invoices shall contain: name, address, and EIN of the Seller; invoice date; PO number; description, quantity, unit of measure, unit price, and extended price of Products delivered or Services performed; complete remittance address where payment is to be sent; name (where practicable), title, phone number, and mailing address of person to be notified in event of a defective invoice; and any other information or documentation required by the PO. To the extent applicable, all invoices must include tax amounts listed separately. Seller shall send all invoices to:
[As Stated on Purchase Order ]
(c) Payment: Customer shall make payment Net 45 days after receipt of a complete and correct invoice or final acceptance of Products or Services by Customer, whichever occurs later. Payment does not constitute final acceptance. Notwithstanding the foregoing, where any Product or Service on an invoice is disputed, Customer may withhold payment for the Product or Service so disputed until the dispute is resolved. Customer will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Customer or any of its affiliates against any amount payable at any time by Customer in connection with this PO. Customer will make every effort to pay invoices within these Terms and as prescribed in the PO, however, in no event will Customer be obligated to pay late fees or penalties for invoices paid outside of the PO Terms.
(d) Discounts: Discount periods shall be computed from either the date of actual delivery of the Products or Services or the date an acceptable invoice is received, whichever is later. Payment is made, for discount purposes, when the payment is mailed or transmitted.
Seller expressly warrants that the Products or Services provided under this PO will be performed in accordance with Customer’s specifications and instructions. Seller further warrants that the Products and Services will be merchantable, non-infringing, free from defects and fit and sufficient for the purpose intended, free of liens and encumbrances, new and not refurbished or reconditioned, and will not infringe upon any third party’s proprietary rights whether contractual, statutory, or common law. Further, the Services will be performed with the highest degree of skill and judgment exercised by recognized professionals performing the same or similar Services. Seller hereby represents and warrants that it shall, at all times, maintain all the consents necessary to carry out its obligations under these Terms and maintain adequate procedures designed to prevent the breach of any laws or regulations by its employees and agents. These warranties are be in addition to all other warranties, express, implied or statutory. Payment for, inspection of, receipt of, approval of, acceptance of, or use of the Products or Services does not constitute a waiver of any breach of these warranties whether or not a breach of warranty had become or should have become evident at the time. In the event of any breach of the foregoing warranty, Seller will, at its own expense and at Customer’s sole option either: (a) provide replacement Products satisfactory to Customer, (b) re-perform the nonconforming Services to the satisfaction of Customer, or (c) refund to Customer the total amount paid for such Products or Services. Seller will extend all warranties it receives from its suppliers to Customer and to Customer’s customers.
6. Product Recalls.
In the event any Products are recalled by Seller, the manufacturer, or any governmental agency, Seller shall reimburse Customer for all costs associated with such recall, including without limitation the cost to replace the recalled Products with equivalent products at the same price as the recalled Products, shipment costs, costs to validate any replacement products, reasonable associated labor costs and costs to re-run any tests performed using Products subject to a recall, and costs associated with generating and sending corrected reports. Seller shall promptly notify Customer in writing if Seller receives a warning letter from the Food and Drug Administration or other regulatory body during the period between its acceptance of the PO and two years after delivery of all Products under the PO, which relates to any Product sold under the PO.
Seller agrees to defend, indemnify, and hold Customer and its directors, officers, employees, and agents (collectively, the “Indemnitees”) wholly harmless from and against all damages, losses, liabilities, obligations, judgments, claims, settlements, costs, and expenses, including reasonable attorney fees, arising from any claim, demand, lawsuit, or other action made or brought against any of the Indemnitees by any third party that is directly or indirectly caused by or attributable to: (a) Seller’s breach of these Terms (including without limitation any of its representations or warranties in these Terms); (b) the failure of a Product to function in accordance with the Product’s written specifications; (c) any negligence or willful misconduct of Seller; (d) any infringement or violation of any third party patents or other intellectual property rights of any third parties based on the Products or Customer’s use of the Products (including without limitation the use of any process, patents, or technology described in the labeling, package insert, manufacturer’s specifications, or instructions); or (e) any other liability resulting from Customer’s use of the Products. The provisions of this paragraph “Indemnification” shall survive the termination of the PO for whatever reason.
Seller represents that it has obtained, and agrees to keep in force, until the delivery of all Products or Services under the PO, at its sole cost and expense, a commercial general liability insurance policy with bodily injury, death, and property damage limits of at least $1,000,000 per occurrence and $10,000,000 in the aggregate, including product and contractual liability coverage. In addition. Seller will maintain appropriate workers’ compensation insurance as will protect Seller from all claims under any applicable workers’ compensation and occupational disease acts, as well as any other insurance required by applicable law. Upon request from Customer, Seller shall provide Customer with a certificate of insurance as evidence that it has secured the insurance coverage required herein. Liability insurance limits shall not be construed to limit Customer’s right of indemnity hereunder.
9. Force Majeure.
Neither Seller nor Customer shall be liable for any delays in the performance of obligations under the PO due to any act or cause beyond the reasonable control and without the fault of such party, including without limitation acts of God such as flood, tornado, earthquake; acts of government (i.e., civil injunctions or enacted statutes and regulations); or acts or events caused by third parties such as riot, strike, power outage or explosion; or the inability due to any of the aforementioned causes to obtain necessary labor or materials (a “Force Majeure Event”). A party experiencing a Force Majeure Event shall provide the other party with prompt written notice of such Force Majeure Event, and use commercially reasonable efforts to resolve any delay caused by such Force Majeure Event.
(a) Definition: For the purpose of this section, “Confidential Information” means the terms of each PO, any amounts payable under the PO, and all information (whether oral, written or in electronic or any other form) belonging to or relating to Customer, its business affairs or activities (including information concerning any trade secrets, intentions or business plans of Customer) which is marked or stated to be confidential or which due to its character or nature, a reasonable person in a like position and under like circumstances would treat as and/or reasonably believe to be confidential.
(b) Restrictions: Seller agrees that Seller will not use any Confidential Information for any purpose other than for performance of its obligations under the PO, and Seller will not disclose or otherwise make available any Confidential Information to any third party without the written consent of Customer. Seller will treat Customer’s Confidential Information with the same degree of care as if it were its own proprietary information. All persons receiving Confidential Information on behalf of Seller under the PO shall be subject to written obligations of confidentiality and non-use consistent with the obligations set forth herein. The restrictions on use and disclosure of Confidential Information set forth in this section shall become effective upon Seller’s acceptance of the PO and remain in effect thereafter (1) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for so long as such Confidential Information retains its status as a trade secret, and (2) with respect to Confidential Information that does not rise to the level of a trade secret under applicable law, for a period of five (5) years following the delivery of all Products and Services under the PO.
(c) Exceptions: The obligations set out in this Section shall not apply to Confidential Information that Seller can reasonably demonstrate: (i) is or has become publicly known other than through breach of this section; (ii) was in the possession of Seller prior to disclosure by Customer; or (iii) was received by Seller from an independent third party who is not subject to an obligation of confidentiality to Customer. The restrictions on disclosure also shall not apply to the extent the Confidential Information is required to be disclosed by a governmental authority, provided that Seller gives Customer prompt written notice of the requirement and cooperates with any efforts of Customer to limit such disclosure.
(d) Duty to Report: Seller shall immediately notify Customer of any breach of its obligations under this section, regardless of whether Seller deems such breach immaterial.
(e) Equitable and Injunctive Relief: Seller acknowledges that its breach of this section may cause irreparable damage, and, therefore, Customer shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with any breach hereof.
(f) HIPAA: Customer is a Covered Entity under the Health Insurance Portability and Accountability Act of 1996, as amended, and its accompanying regulations (“HIPAA”). As such, Customer is required to make reasonable efforts to limit as necessary the disclosure of Protected Health Information (“PHI”) as defined by HIPAA. To the extent that Seller has access to such PHI while supplying Products or Services or otherwise performing under the PO or complying with these Terms, Seller will treat such PHI in accordance with the applicable Business Associate Agreement between the parties, including but not limited to the use of commercially reasonable safeguards to prevent the use or disclosure of PHI except as provided under the PO. Furthermore, Seller will ensure that any subcontractor or third party that has access to PHI agrees to restrictions and conditions no less restrictive than apply to Seller with respect to PHI.
Customer shall not be precluded from making purchases of the same or similar Products or Services from any other Seller.
(a) Termination for Convenience: Customer may, by written notice to Seller, terminate the PO, or any part thereof, for any or no reason, for Customer’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the PO. If Customer terminates for convenience, Customer shall pay Seller for Products and Services accepted as of the date of termination. Customer shall have no responsibility for work performed after Seller’s receipt of notice of termination.
(b) Termination for Cause: Customer may, by written notice to Seller, terminate the PO, or any part thereof, if Seller breaches any of these Terms. This PO shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors. If the PO terminates for cause, Customer shall have no payment obligations to Seller. Should a court of competent jurisdiction subsequently determine that Customer’s termination for cause was wrongful or unjustified, then such termination shall be automatically considered a termination for convenience and Seller shall have all rights under that provision, but no other rights or claims for damages.
13. Limitation of Liability.
Customer’s aggregate liability arising from or relating to this PO is limited to the amount paid by Customer for the Products and/or Services. To the maximum extent allowable under applicable law, Customer shall not be liable under this PO for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues, even if Customer has been advised of the possibility of such damages.
14. Relationship of the Parties.
None of the provisions of the PO or these Terms is intended to create, nor shall be deemed or construed to create, any relationship between Seller and Customer other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of the PO. Neither of the parties, nor any of their respective employees, shall be construed to be the agent, employer, or representative of the other.
Seller may not assign, transfer, or subcontract any part of the PO without the prior written consent of Customer, and any assignment in violation of this provision shall be null and void. Seller shall ensure that any assignee, transferee, or subcontractor (“Subcontractor”) executes an agreement in which Subcontractor agrees to be bound to all of the obligations described in the PO to the extent of the work to be performed by Subcontractor for the benefit of Customer, and naming Customer as a third party beneficiary of such agreement. Seller shall provide Customer with copies of such agreement(s) upon request by Customer. Notwithstanding the foregoing, Seller shall remain responsible for the provision of Products and Services in accordance with the PO.
16. Compliance with Laws.
These Terms are intended to be in compliance with all federal, state and local statutes, regulations and ordinances applicable on the date of the acceptance of the PO, including but not limited to HIPAA, the Program Fraud Civil Remedies Act of 1986, the Deficit Reduction Act of 2005, the related federal False Claims Act, state False Claims Acts, the federal Anti-Kickback Statute, the federal Stark Law and state kickback and healthcare referral laws, and whistleblower protections associated with any of the foregoing. Seller shall also comply with the Occupational Safety and Health Act, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and Executive Order 11246, as amended by Executive Order 11375, along with the implementing rules and regulations of the Office of Federal Contracts Compliance. Seller has written policies and procedures for detecting and preventing fraud, waste, and abuse and will ensure that Products and Services provided to Customer under the PO are in accordance with the requirements of the applicable federal and state laws.
Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment, and installation of the Products ordered hereby.
If in connection with the Products to be delivered under this PO, Seller is required to comply with the Occupational Safety and Health Act’s hazardous communications standard (48 Fed. Reg. 53280 (1983)), Seller agrees to provide Customer with copies of the applicable Material Data Safety Sheets at the time of delivery to Customer of the Products ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to us under such laws and regulations.
17. Non-Waiver of Rights.
Each of the rights and remedies reserved to Customer in this PO shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Customer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Customer shall be deemed to be a waiver of any such right or remedy.
If any term contained in this PO is finally determined to be invalid, illegal, or unenforceable, the remaining terms of this PO will continue in full force and effect.
19. Use of Name.
Seller shall not make or publish any notice, advertisement, press release, or other communication with respect to the PO, its Terms, or its subject matter without Customer’s prior written consent. Seller shall not use Customer’s name or logo in any of its advertising, client list, or sales promotional material without Customer’s prior written consent.
The headings in these Terms are for convenience and reference only and shall not affect the meaning or construction of any provision of the PO.
21. Governing Law.
This PO shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts-of-law principles.
Both parties agree that any term or condition of this PO which by its sense or nature should be deemed to survive the expiration or termination of this PO will so survive.
Any notice or communication required or permitted under this PO shall be in writing and shall be deemed received when personally delivered or three days after being sent via first-class mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
24. Entire Agreement.
The PO represents the entire agreement between Seller and Customer with respect to the Products and Services described in the PO. Notwithstanding the foregoing, if a valid agreement covering procurement of the Products or Services described in the PO exists between Seller and Customer, the terms of such agreement shall prevail over any inconsistent terms herein.