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1. TERMS OF PURCHASE
These terms and conditions of purchase (this "Purchase Order" or this
"Agreement") exclusively governs the purchase of all components, parts,
accessories, products and/or services (the "Products") sold by Seller to
CardioPulmonary Technologies, Inc. ("Buyer"). Whether this form is deemed an
offer, an acceptance or a confirmation, Buyer expressly conditions its
purchase of Products on Seller’s assent to these terms, notwithstanding any
difference, additions or conflicting terms contained in the terms proposed
by Seller. This Purchase Order contains the entire agreement between the
Buyer and the Seller. No modifications or additions to the terms set out in
this Purchase Order shall be valid unless in writing and signed by an
authorized representative of Buyer and Seller. Seller is an independent
contractor and under no circumstances may Seller represent itself as an
agent for Buyer.
2. ACCEPTANCE OF TERMS AND CONDITIONS OF PURCHASE ORDER
2.1 This Purchase Order constitutes Buyer’s offer to
Seller to buy Products and shall become a binding agreement subject to the
descriptions, terms and conditions set forth on both sides of this document
upon acceptance by Seller. Seller’s acceptance shall be indicated
either: (i) Seller’s signing and returning the acknowledgment copy of this
order; or (ii) Seller’s commencement of services or delivery of materials,
either in whole or in part.
2.2 Buyer shall have no obligation or liability with
respect to any and all Products delivered in excess of the amount or
otherwise not in conformity with this Purchase Order. At Buyer’s
option, such Products may be returned to Seller at Seller’s sole expense.
2.3
Seller shall provide Buyer with written notice prior to making any change in
the services or Products furnished pursuant to this Purchase Order,
particularly any modifications in any design specifications, assembly
procedures, or changes in any raw materials or component parts of any of
Seller’s Products, to allow Buyer, at its sole discretion, to determine
whether to accept such changes, based on any adverse effect on the quality
of Buyer’s own final products, processes or services.
3. BUYER DESIGNED ARTICLES; QUALITY
3.1 Seller shall not furnish or deliver to any person,
other than Buyer, or a person designated by Buyer, any article, which is
manufactured to the design or specification of Buyer. In the event
Seller shall produce any quantity of any such Products in excess of the
quantity specified in this Purchase Order, Seller shall destroy all such
Products in excess of the quantity specified unless Buyer shall deliver to
Seller written authorization for a different disposition.
3.2 All materials used in the Products delivered under
this Purchase Order shall be in conformity with applicable drawings,
specifications and requirements with respect thereto. Seller shall
maintain test data to substantiate compliance with the foregoing, and
Seller’s manufacturing processes and inspection system shall be subject to
on site review and verification by Buyer’s representatives.
4.
CANCELLATION
OF PURCHASE ORDER
4.1 Buyer shall have the right, at its option, to modify
or cancel this Purchase Order or any part thereof, to refuse delivery of any
Product(s) and to return to, or hold for the account of, Seller any
Product(s) already received by Buyer: (i) upon Seller’s failure to make any
delivery in accordance with the terms of this Purchase Order or to comply
with shipping and instructions of Buyer; (ii) in the event that any Products
supplied by Seller: (a) do not meet the Specifications; (b) are defective;
(c) are not satisfactory to Buyer; or (iii) on account of any unforeseeable
cause beyond the control of Buyer, including any act or demand of the United
States or any state or local government body, act of God or of the public
enemy, fire, flood, epidemic, quarantine restriction, strike, embargo,
failure of usual means of transportation and any other case which in the
judgment of Buyer may adversely affect the manufacture or sale of any
product by Buyer.
4.2 In the event any institution of proceedings by or
against Seller in bankruptcy or insolvency, or under any provision of the
United States Bankruptcy Act, or for the appointment of a receiver or
trustee or an assigned for the benefit of creditors of Seller, Buyer may
cancel this Purchase Order forthwith, without waiving any of its remedies.
5.
SHIPMENTS
5.1 All risk of loss shall be upon Seller until such time
as the Products ordered shall be delivered to the final destination
specified in this Purchase Order and are accepted by Buyer. This shall
be so without regard to the FOB point. All shipments of Products shall
be made via United Parcel Service with transportation charges to be charged
to Buyer’s account.
5.2 No charge will be allowed for packing, crating,
drayage or storage unless agreed upon in writing at time of purchase.
Shipments must be packed to conform with the requirements of the carriers.
5.3 All shipments must be forwarded to Buyer at the time
and place and in the manner indicated on this Purchase Order. Time is
of the essence. In the event of any variance, all additional expenses to
which Buyer may be subjected shall be borne by the Seller.
5.4
All Products shipped to Buyer from abroad shall be securely packed for
export as light as possible and the smallest cubical bulk consistent with
safe carriage by ocean vessel, railroad or craft (as the case may be).
All packaging and boxing costs shall be borne by the Seller.
5.5 An itemized packing slip bearing Buyer’s Purchase
Order number as shown herein must accompany each delivery; and each
container must be marked to show Buyer’s Purchase Order number.
Buyer’s count will be accepted as conclusive on shipments not accompanied by
a packing slip.
5.6 After shipment of the Products, Seller shall submit a
separate invoice to Buyer at the address indicated under the "Bill To"
section on the front side of this Purchase Order.
6.
PRICE;
DISCOUNTS; PAYMENT; TAXES
6.1 Products not priced on this Purchase Order will be
supplied at the lowest price last charged by Seller for equal quantity, and
shall not exceed current prices quoted or charged to any other customer of
Seller for similar items and quantity. Seller will refund to Buyer any
amounts in excess of such price.
6.2 Seller agrees that Buyer shall receive the benefit of
any reduction in the price for any Products or services described herein
which shall be made or in effect at the time of the shipment or delivery or
furnishing thereof to Buyer and that in any such case the price therefore
provided in this Purchase Order shall be reduced accordingly.
6.3 It is understood that the cash discount period will
date from the receipt of the Products or from the date of the invoice,
whichever is later.
6.4 The price of the Products sold hereunder shall not be
due and payable until delivery and acceptance of the Products.
6.5 Seller shall separately state on all invoices and
confirmations the applicable sales taxes imposed by federal, state or local
governments, unless an exemption is available.
7. WARRANTIES AND COMPLIANCE WITH LAWS
7.1 Seller expressly warrants that all Products provided
pursuant to this Purchase Order shall be: (i) merchantable; (ii) fit and
safe for the purpose for which it is manufactured; (iii) free from defects
in material and workmanship; (iv) in conformance with applicable
specifications, drawings, samples and descriptions; and (v) that if of
Seller’s design, shall be free from design defects. Additionally,
Seller warrants that it has good title to the Products supplied and that
they are free and clear from all liens and encumbrances. These
warranties shall survive acceptance and payment by Buyer. Products not
in accordance with these warranties may be returned to Seller and Seller
shall pay for transportation both ways. Buyer shall have the option of
returning such Products to Seller at any time after delivery for credit or
replacement at the price charged. The foregoing shall not be in
limitation of any rights which Buyer may have at law or in equity by reason
of any breach of warranties.
7.2 Seller hereby guarantees that the Products sold
hereunder are not and will not be, on the date of shipment or delivery,
either adulterated or misbranded within the meaning of the U.S. Food, Drug,
and Cosmetic Act, as amended, or within the meaning of any applicable state
or local law in which the definitions of adulteration and misbranding are
substantially identical with those contained in the Federal Food, Drug, and
Cosmetic Act, as said act and such laws are constituted and effective at the
time of such shipment or delivery, and that such Products are not and will
not be, on the date of such shipment or delivery, Products which may not,
under the provisions of Section 404 or 505 of said Act, to be introduced
into interstate commerce.
7.3 Seller warrants that the Products purchased or
provided hereunder have been produced and/or have been designed to and will
comply fully with all applicable federal, state and local standards in
effect on the date of shipment, including, without limitation, the
appropriate sections of the Occupational Safety and Health Standards Act and
the Fair Labor Standards Act, as amended.
7.4
If this Purchase Order is issued pursuant to a contract with the United
States Government, or any agency thereof, and such fact is communicated to
Seller on this Purchase Order form or otherwise, then: (i) Seller
agrees to allow access to any representative of the United States
Government, or any agency thereof, to Seller’s plants, materials and
process, and relevant books and records; (ii) all materials and workmanship
is subject to inspection by the Government, and the Government, as well as
Buyer, has the right to reject any Products found to be non-conforming or
defective; and (iii) Seller performing work under this Purchase Order shall
not discriminate against any employee or applicant because of race, creed,
color, national origin or sex and shall include a similar clause in its
subcontracts.
7.5 The following are hereby incorporated by reference
and made a part of this Purchase Order as is fully set forth herein: (i)
the provisions of the Equal Opportunity clause set forth in 41 CFR 60-1.4(a)
pursuant to the requirements of Executive Order 11246; (ii) applicable
contractual requirements of the Rehabilitation Act of 1973 as set forth in
41 CFR 60-741.4; (iii) applicable contractual requirements of the Vietnam
Era Veterans Readjustment Assistance Act of 1974 as set forth in 41 CFR
60-250.4; (iv) applicable contractual provisions of Public Law 95-507
concerning the utilization and employment of Small Business, Small
Disadvantaged Business and Women-Owned Business Concerns; and (v) any law,
order or regulatory provision issued in addition, supplement or replacement
of the foregoing concerning federal contractors.
8. INDEMNIFICATION
Seller agrees to
indemnify, defend and hold harmless Buyer, its parent, subsidiaries and
affiliated companies, and its officers, directors, agents and employees,
from and against any and all loss, cost, liability, damage and expense
(including without limitation, and reasonable attorneys’ fees and other
costs of litigation) arising out of or in connection with any Products
provided by Seller or Seller’s performance hereunder, for or on account of:
(i) any injury, death or damage to person or property, or any claim thereof;
(ii) with respect to any Product sold hereunder or its use, any
infringement, or claim or infringement, of any patent, copyright, design,
process, trademark, trade name or other intellectual property rights; and
(iii) any litigation based on or as a result of any of the foregoing.
9. CONFIDENTIAL INFORMATION AND
PUBLICITY
Seller agrees to hold in
strict confidence any confidential information disclosed by Buyer to Seller
and to make no use of such information other than that authorized by Buyer.
Advertising and promotional material (including the use of Buyer’s name as a
customer of Seller) must be approved by Buyer in writing prior to release.
10. OWNERSHIP
Seller agrees that any
work created as a result of this Purchase Order shall be considered a "work
made for hire" and any copyright and other ownership of such work shall be
owned solely, completely and exclusively by Buyer. Buyer shall have the
right to publish such work and/or register such copyright in the name of
Buyer as sole and exclusive author and owner thereof. In the event
such work is determined by a court of competent jurisdiction not to be a
work for hire under the federal copyright laws, this Purchase Order shall
operate as an irrevocable assignment by Seller to Buyer of the copyright and
other exclusive ownership rights to the work, including all rights
thereunder in perpetuity.
11. MATERIALS FURNISHED BY BUYER
11.1 Any artwork, negatives, positives, proofs,
engravings, dies, tools, molds, and any other material or equipment
furnished by Buyer, which shall be used for or in connection with the
production of any Products pursuant to this Purchase Order: (i) shall be and
remain the sole and exclusive property of Buyer; and (ii) shall only be used
in connection with Buyer’s work and shall be held by Seller and promptly
returned to Buyer by Seller in accordance with the instructions of Buyer.
11.2 Seller shall replace or restore to original,
usable condition, free of any cost or expense to Buyer, any art work or any
material described in Section 11.1 which shall be destroyed or become
deteriorated or otherwise unusable for or on account of any act or omission
of Seller contrary to the provisions thereof.
12. DELAYS
Whenever Seller has
knowledge that any actual or potential labor dispute or other problem is
delaying or threatens to delay the timely performance of this Purchase
Order, Seller shall immediately give notice thereof to Buyer, including all
relevant information with respect thereto.
13. WAIVER
Any waiver of strict
compliance with any provision of this Purchase Order shall not be deemed a
waiver of any subsequent breach or failure, nor of Buyer’s right to insist
on strict compliance thereafter.
14. SEVERABILITY
In the event
that any provision of this Purchase Order is for any reason held to be
invalid or unenforceable or contrary to public policy, such provision shall
be treated as severable, leaving valid the remainder of this Purchase Order.
15.
ASSIGNMENT
Seller shall not assign this Purchase
Order, or any part thereof, without written consent of Buyer. Such
consent shall not release Seller from its obligations and liabilities.
Any and all rights, benefits and privileges under this Purchase Order
including, without limitation the benefit of any and all warranties, shall
insure to the benefit of any parent, subsidiary or other affiliated
corporation of Buyer to whom the Products or services described herein, or
any part thereof, shall be delivered or furnished or transferred, whether
such delivery, furnishing or transferal shall be accomplished by Seller or
Buyer or otherwise.
16. ENFORCEMENT
In the event Buyer
takes or maintains any action to enforce its rights hereunder and prevails
and/or obtains a successful result thereafter, Seller shall reimburse Buyer
for its reasonable costs and expenses incurred, including, without
limitation, reasonable attorneys’ fees.
17. GOVERNING LAW
This Purchase Order and
the contract resulting from Seller’s acceptance hereof shall be construed in
accordance with and governed by the laws of the State of Wisconsin and the
Uniform Commercial Code as enacted therein. Seller and Buyer hereby
further consent to the personal jurisdiction of the state and federal courts
located in the State of Wisconsin in connection with the disposition of any
controversy or action relating to or in any manner arising out of this
Purchase Order, waive any argument that personal jurisdiction and venue in
such forums is not proper or convenient for any reason, and agree that any
litigation initiated either by Seller or Buyer shall be venued in either the
District Court of Waukesha County, Wisconsin, or the United States District
Court for the Eastern District of Wisconsin.
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