J.T. Posey Company Purchase Order Terms and Conditions

 

1. Orders, Acceptance, Entire Agreement and Modification: The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between J.T. Posey Company, or any of its affiliated companies (“Posey”), and the supplier (the “Supplier”) identified in the Purchase Order. All sales of products by Supplier to Posey are subject to these terms and conditions, and Posey’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on Posey’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. No change to or modification of the Purchase Order shall be binding upon Posey unless signed by an authorized representative of Posey’s procurement or purchasing office. This writing does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the products or work described in the Purchase Order exists between Supplier and Posey, the terms of such master agreement shall prevail over any inconsistent terms herein.

 

2. Packing, Shipment and Delivery: All products shall be prepared and packed for shipment in a manner that will protect it from loss or damage in transit and in accordance with best commercial practices in the absence of any specifications Posey may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous products, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Posey is not liable for extra charges for packing, cartage or any other expense related thereto unless stated in this Purchase Order. Supplier shall mark this Purchase Order number on each container. Deliveries shall be strictly in accordance with the schedule set out or referred to in this Purchase Order and in exact quantities ordered and made to Posey at its designated delivery location set forth in the Purchase Order. Time is of the essence for this Purchase Order. Shipments in excess of quantities or in advance of schedule delivery dates as shown herein are not to be made without Posey’s written approval. Posey reserves the right to return at Supplier’s expense any shipments received contrary to this instruction. Unless otherwise noted on the Purchase Order, supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Title and risk of loss passes to Posey upon acceptance in accordance with paragraph 6.

 

3. Cancellation: Posey reserves the right to cancel this Purchase Order, or any part thereof, at any time, even though Supplier is not in default hereunder, by giving written notice to the Supplier in the event of such cancellation. Posey shall pay for all products and services delivered and completed and an equitable settlement shall be arrived at for the costs incurred by Supplier for products and materials in-process not to exceed the aggregate committed quantity and/or price specified in this Purchase Order. Upon receipt of any notice of cancellation hereunder, Supplier, unless otherwise directed, will immediately discontinue all work in progress and immediately cancel all orders or subcontracts given or made pursuant to this Purchase Order. Exercise by Posey of the rights of cancellation reserved in this paragraph shall give rise to no liability on the part of Posey except as specified in this paragraph and shall not have the effect of waiving damages Posey might otherwise be entitled to.

 

4. Specifications and Changes: If drawings, blueprints or specifications are furnished by Posey, this Purchase Order shall be based upon such drawings, blueprints or specifications, and approval of samples by Posey shall not relieve the Supplier from strict and full compliance with such drawings, blueprints or specifications. Posey may make changes in the drawings, blueprints and specifications on any item at any time. If such changes result in delay or additional expense to Supplier, an equitable adjustment of price and delivery schedule will be made. Supplier shall not change the material, the source of the material, the process or components used in producing the material, the specifications, inspection and/or tests used, or any contractors/sub-contractors without advance notification to, and written approval by, Posey

 

5. Pricing and Payment: All products and services will be invoiced at pricing set forth on the Purchase Order. Unless otherwise specified in the Purchase Order, the pricing includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at Posey’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist Posey in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order. Unless otherwise stated on the Purchase Order, Posey will pay Supplier the price set forth in the Purchase Order within 30 days following the later of: (i) the delivery date; (ii) the date of Posey’s acceptance of the products/services; or (iii) Posey’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the products to the requirements/specifications. Payment will be in U.S. dollars. Posey may, at any time, set-off any amounts Supplier owes Posey against any amounts Posey owes to Supplier or any of its affiliated companies.

 

6. Inspection, Acceptance: Supplier agrees to permit Posey’s inspectors to have access to Supplier’s plant at all reasonable times for the purpose of inspecting the items set forth in the Purchase Order and work-in-process for production of such items. All items are subject to final inspection and approval at Posey’s plant or other plant or other place designated by Posey. Such inspection shall be made within a reasonable time after delivery irrespective of the date of payment and the date of payment and/or the payment for any item purchased hereunder shall not constitute approval or acceptance of such material by Posey and Posey’s right of inspection shall survive payment. Posey may reject any or all of the products or services which do not conform to the applicable requirements/specifications for same. At Posey’s option, Posey may (i) return the non-conforming work to Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming work; or (iii) repair the non-conforming work, at Supplier’s expense, so that it meets the requirements. As an alternative to (i) through (iii), Posey may accept the non-conforming work conditioned on Supplier providing a refund or credit in an amount Posey reasonably determines to represent the diminished value of the non-conforming work.

 

7. Process Monitoring: Suppliers are responsible for monitoring their manufacturing processes performance and conducting sufficient process control, inspection, testing, proactive and preventative measures to assure that all items delivered to Posey are in full compliance with their specifications. Statistical sampling is strongly encouraged to insure that the manufacturing processes are in statistical control. Related information must be available and could be requested by Posey at any time. ISO 9001:2000 or ISO 13485 certification is preferred or strongly recommended for all suppliers and audited compliance with Title 21, Part 820 of the Code of Federal Regulations is mandatory for all suppliers of finished medical devices, as applicable. Regardless, Supplier is responsible for each part conforming to specifications. Posey does not plan to inspect or test beyond what is required to verify quality by suppliers.

 

8. Returns: Posey shall have the right to return to Supplier any unused products consistent with Supplier’s return policy for either full credit or a refund of the purchase price at Posey’s election.

 

9. Warranties: Supplier warrants that all products and/or services provided by it: (i) shall be of good quality and workmanship and free of defects, latent or patent; (ii) shall conform to all applicable specifications, drawings or descriptions; (iii) shall be manufactured and labeled in compliance with applicable laws, rules and regulations, including without limitation the requirements of the Federal Food, Drug and Cosmetic Act and the regulations promulgated thereunder; (iv) shall be merchantable and suitable and sufficient by their intended purpose; (v) shall be free from any and all liens and encumbrances; and (vi) and Posey’s use of same, does not and will not infringe upon any third party’s intellectual property rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law. Supplier further represents and warrants that it has and will maintain all federal, state, local and foreign registrations necessary for the lawful handling and distribution of the product(s). Supplier may not negate, exclude, limit or modify any warranty otherwise available to Posey. Any attempt by Supplier to do so is ineffective and shall not in any way bind Posey. Posey’s inspection or acceptance of any goods or services, or Posey’s payment for goods or services shall not constitute a waiver by it of any warranty. None of the remedies available to Posey for breach of any of the forgoing warranties may be limited except to the extent and in the manner agreed upon by Posey in a separate agreement specifically designating such limitation and signed by an authorized representative of Posey.

 

10. Confidentiality: The information contained in the Purchase Order including, without limitation, these terms and conditions, the ideas, information and designs contained in, shown upon, or incorporated by reference into the Purchase Order, and the drawings, specifications, photographs and other engineering and manufacturing information supplied by Posey shall remain Posey’s property, shall be retained in confidence by Supplier and not be disclosed to any other person or entity, and shall not be used nor incorporated into any product or item later manufactured or assembled by Supplier for anyone other than Posey. Any unpatented knowledge or information concerning Supplier’s processes, present or contemplated products or their uses, which Supplier may disclose to employees of Posey in connection with the ordering, acquisition and use by Posey of the products or services covered by this Purchase Order shall, unless otherwise specifically agreed in writing, be deemed to have been disclosed as part of the consideration for this order and Supplier agrees not to assert any claim (other than the claim for patent infringement) against Posey by reason of any case or alleged use to which any such information or knowledge may be put by Posey. If Posey and Supplier have entered into a confidentiality agreement (“CDA”) which covers disclosure of confidential information under the Purchase Order, the parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the CDA. If the term of the CDA expires before the expiration or termination of the Purchase Order, then the term of the CDA shall be automatically extended to match the term of the Purchase Order.

 

11. Intellectual Property Indemnity: Supplier agrees to indemnify Posey and hold it harmless from and against all claims, liability, loss, damage or expense, including counsel’s fees, arising from or by reason of any suit, claim or demand relating to trademark, patent or copyright infringement or litigation based hereon with respect to the products or any part thereof covered by this Purchase Order and such obligations shall survive acceptance of the products and payment therefor by Posey. Supplier agrees that it will, when so requested, provided that it is given reasonable notice of the pendency of any such suit, claim, or demand, assume the defense of Posey and/or its successors, assigns and customers and users of its products against any such aforementioned suit, claim, or demand, pendency of any such suit, claim or demand.

 

12. Assignment, Subcontracting: Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without Posey’s prior written consent, which Posey will not unreasonably withhold. Supplier may not subcontract any of its rights or obligations under the Purchase Order without Posey’s prior written consent. If Posey consents to the use of a subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Posey for all damages and costs of any kind incurred by Posey or any third party and caused by the acts and omissions of Supplier’s subcontractors’, and (iii) make all payments to its subcontractors. Supplier will defend, indemnify and hold Posey harmless for all damages and costs of any kind, without limitation, incurred by Posey and caused by Supplier’s failure to pay a Subcontractor.

 

13. Waiver, Remedies: Failure of Posey or Supplier to insist on performance of any of these items and conditions or requisitions of this Purchase Order shall not be construed as a waiver of such items, conditions or requirements and shall not affect the right of either party thereafter to enforce each and every term, condition or requirement hereof. All remedies, whether provided by law, contract or contained elsewhere shall be deemed to be cumulative.

 

14. Compliance With Laws: Supplier represents and warrants that the performance of this Purchase Order shall be in accordance with the applicable standards, provisions and stipulations of all pertinent federal, state, or local laws, rules, regulations, executive orders or other ordinances, including, but not limited to, the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under Section XIV thereof, the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act, and the provisions of Executive Order 11246, including all amendments thereto relative to Equal Employment Opportunity and the implementing rules and regulations of the Department of Labor on Equal Opportunity Employment; each as amended and in connection therein Supplier shall, on Posey’s request, so certify.

 

15. Governing Law: The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of California. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods.

 

16. Liability: NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, POSEY WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT POSEY PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL POSEY BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT POSEY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

 

17. Insurance: Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Posey in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.

© 2014 Posey Company1.800.447.6739 (U.S. Only)5635 Peck Rd. Arcadia, CA 91006-0020 USA