1. APPLICABILITY; OFFER
These General Terms and Conditions (“Terms”) apply to all purchase orders (“Orders”) issued by JUNE MEDICAL USA, Inc. or its affiliates (the entity issuing the Order is called the “Buyer”) to the seller specified in each Order (the “Seller”). Each Order is an offer by the Buyer to purchase the goods or services specified in the Order, only on the terms and conditions set out in the Order and these Terms. No Order is binding on the Buyer until it is accepted by the Seller, and the Buyer may freely withdraw any Order, without cost or penalty, before it is accepted by the Seller.
Time, rate and place of deliveries are the essence of each Order and all deliveries shall be made strictly in accordance with the time schedule set out in the Order. Unless otherwise specified in an Order, the Seller shall ship all goods ordered in that Order via a common carrier selected by the Buyer, or, if the Buyer does not select a carrier, a reasonable common carrier selected by the Seller, for delivery DDP (Incoterms 2010) the Buyer’s location specified in that Order. The Seller shall pack all goods for shipment according to the Buyer’s instructions, or, if the Buyer does not provide instructions, in a manner reasonably sufficient to ensure that the goods are delivered in undamaged condition.
The Seller shall invoice the Buyer (each, an “Invoice”) for the goods or services specified in each Order upon delivery of those goods or services, at the prices specified in the Order and under the payment terms specified in the Order. Unless otherwise specified in the Order, all prices are inclusive of all packing, shipping and handling charges. The Seller shall show any applicable taxes separately on each Invoice, and, whenever any discount is applicable, show any applicable freight and similar charges separately to avoid discount being taken thereon. A bill of lading or express receipt must accompany each Invoice.
4. INSPECTION AND ACCEPTANCE
All supplies and services shall be subject to inspection and test by the Buyer and its customers at such times and places as they may require, including at the Buyer’s, or its customer’s, facility upon delivery. The Seller shall provide, without additional charge, all assistance reasonably requested by the Buyer in connection with the performance of those tests. The Seller shall also provide and maintain an inspection system acceptable to the Buyer. Records of all inspection work by the Seller shall be kept complete and available to the Buyer during the performance of each Order and for such longer periods as the Buyer determines. The Seller shall, at the Buyer’s request, promptly certify that the good or services furnished under an Order conform to all applicable drawings and specifications. Strict performance of the terms of each Order is required, and shall be deemed to be the essence of the contract. Substantial performance of the terms of an Order in good faith and without willful failure shall not be deemed sufficient performance.
If any goods or services supplied under an Order are defective in material or workmanship or otherwise not in conformity with the requirements of the Order, the Buyer shall, in addition to and without limiting its rights and applicable law, have the right to (a) reject the goods or services in whole or in part and rescind the Order as to the rejected goods or services, without any cost or penalty to the Buyer, (b) reject the goods or services in whole or in part and require the Seller to promptly deliver conforming goods or services in accordance with the Buyer’s instructions, without additional cost to the Buyer, (c) accept the goods or services in whole or in part and deduct from the amount due the Seller, or otherwise recover from the Seller, the cost of remedying the defects and any other costs incurred by the Buyer as a result of the defects or (d) any combination of those alternatives. The Seller shall submit to the Buyer, together with any replacement goods or services, notification that those goods or services are to replace previously rejected goods or services.
No inspection, testing, approval or acceptance shall relieve the Seller from responsibility for any defects or other failure to meet the requirements of any Order or from any warranties. The Buyer’s rights under these Terms are cumulative and in addition to any other rights or remedies provided in any Order or by law or equity. No payment made under any Order shall be construed to be an acceptance of defective or otherwise improper goods or services, nor shall any such payment otherwise limit the Buyer’s rights.
5. WARRANTIES; INDEMNIFICATION
In addition to and without prejudice to all other warranties both express and implied, including the implied warranties of merchantability and fitness for a particular purpose, the Seller warrants that the goods or services furnished hereunder will be (a) free from defects in workmanship and material, (b) free from defects in design to the extent that the Seller is not supplying those goods or services based on detailed designs provided by the Buyer, (c) suitable for the purposes intended, (d) in compliance with all requirements of the relevant Order and all applicable drawings, specifications, samples, representations or other descriptions, (e) delivered free of the rightful claim of any third person by way of infringement or the like and (f) delivered free from any security interest or other lien or encumbrance.
All warranties, both express and implied, including those set out above, shall constitute conditions to the Seller’s proper performance of an Order and right to payment for goods and services delivered, shall survive inspection, acceptance and payment and shall inure to the benefit of the Buyer and its customers and users. Without limitation of any rights by reason of any breach of warranty or otherwise, any goods or services that are not as warranted, may at any time be returned to the Seller at the Seller’s expense for credit, refund, correction or replacement, as the Buyer may direct.
The Seller shall indemnify, defend and hold harmless the Buyer and its affiliates, employees, representatives and customers from and against any claims, liabilities, injuries, losses, damages, judgments, penalties, fines, costs or expenses, including the reasonable fees of attorneys, accountants and other professionals (“Losses”), to the extent arising from or related to any breach of the warranties set out above or the Seller’s negligence, willful misconduct or breach of these Terms or any Order.
6. DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION
Drawings, specifications, photographs and other engineering and manufacturing information supplied by the Buyer shall remain the Buyer’s property, shall not be copied or otherwise duplicated without the Buyer’s written consent and shall be returned to the Buyer upon completion of the relevant Order or upon demand.
Any intellectual property rights of the Seller, including patent rights and unpatented knowledge or information concerning the Seller’s products, methods, or manufacturing processes, that may be incorporated into any goods or services delivered under an Order or that the Seller discloses to the Buyer in connection with an Order shall, unless the Buyer and the Seller otherwise agree in writing, be part of the consideration delivered by the Seller under the Order, and the Seller shall not assert any claim against the Buyer by reason of the Buyer’s use or alleged use thereof.
7. PROPRIETARY INFORMATION
Nothing in these Terms shall limit any confidentiality or non-disclosure agreement between the Buyer and the Seller.
8. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
In performance under each Order and in every related or connected activity, the Seller shall comply fully with all applicable laws, ordinances, rules and regulations.
9. RELATIONSHIP OF THE PARTIES
The relationship between the Buyer and the Seller is that of independent contractors. Nothing contained in these Terms or in any Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Buyer and the Seller, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Except as otherwise explicitly agreed between the Buyer and the Seller in writing, no exclusive relationship shall arise from these Terms or any Order.
10. NO ASSIGNMENT; NO SUBCONTRACTING
The Seller shall not assign these Terms, or any Order, or any rights hereunder or thereunder, including any monies due or to become due, without the Buyer’s prior written consent, and any purported assignment without the Buyer’s written consent shall be void and of no effect. The Seller shall not subcontract or otherwise delegate any aspect of the Seller’s performance under any Order without the Buyer’s prior written consent.
11. EQUAL OPPORTUNITY
During the performance of each Order, the Seller shall comply with Executive Order 11246 as amended from time to time and all rules, regulations and orders issued pursuant thereto.
12. ANTI-CORRUPTION LAWS
The Seller shall, and shall cause its employees and other representatives to, comply with all applicable Anti-Corruption Laws. Without limiting the immediately preceding sentence, except for the payment of fees required by applicable law to be paid to governmental entities, the Seller shall not, and shall cause its representatives not to, in connection with goods or services provided under any Order or any other transaction or matter involving the Buyer, make, offer to make or promise to make any payment or transfer of anything of value, directly or indirectly, to (a) anyone working in an official capacity for any governmental entity, including any employee of any government-owned or controlled entity or public international organization, (b) any political party, official of a political party or candidate for political office or (c) any other person if that payment, offer of payment or promise of payment is made in order to obtain or retain business or secure any improper business advantage. “Anti-Corruption Laws” means all applicable anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act, and any laws having a similar purpose.
Without limiting any other right or remedy the Buyer may have, the Buyer may at any time set off any amount that the Seller owes the Buyer against any amount that the Buyer owes the Seller.
The Seller may amend these Terms from time to time in its sole discretion by posting an updated version of these Terms on its website. Any such amendment shall be effective with respect to all Orders issued by the Buyer on or after the date on which it posts that amendment.
If any provision of any Order or these Terms would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, that provision, as to that jurisdiction, shall be ineffective, without invalidating the remaining provisions of that Order or these Terms or affecting the validity or enforceability of that provision in any other jurisdiction. Notwithstanding the foregoing, if that provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in that jurisdiction, it shall, as to that jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
16. GOVERNING LAW
The validity, construction and interpretation of these Terms and any Orders, and the rights and duties of the parties hereto and thereto shall be governed by the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule, whether in the State of Delaware or any other jurisdiction, that would cause the laws of any jurisdiction other than the State of Delaware to apply. Without limiting the generality of the immediately preceding sentence, the U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms, any Orders or the rights and duties of the parties hereto and thereto.
17. JURISDICTION AND VENUE
THE DELAWARE COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO ANY ORDER OR THESE TERMS OR THE SUBJECT MATTER OF ANY ORDER OR THESE TERMS, AND EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION OR PROCEEDING OR FOR RECOGNITION OF ANY JUDGMENT AND (B) WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF, AND ANY DEFENSE BASED ON AN INCONVENIENT FORUM IN, ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
18. COMPLETE AGREEMENT
These Terms, together with any Orders issued under these Terms, contain the complete and entire agreement between the parties related to the subject matter hereof and thereof, and supersede any previous communications, representations or agreements, whether verbal or written, with respect to that subject matter. The Seller’s acceptance of any Order is strictly limited to the terms of that Order and these Terms. No terms and conditions contained in the Seller’s standard terms and conditions of sale, or any invoice or other document issued by the Seller, that are additional to or different from the terms and conditions contained in these Terms or any Order shall be of any force or effect, and the Buyer hereby objects to, and rejects, any such terms and conditions.