The following are Terms of Purchase between buyers (USOC Medical) and all Sellers of Goods and Services.
ACCEPTANCE OF AGREEMENT:
It is hereby agreed to, understood, and acknowledged that these USOC Terms and Conditions of Purchase are incorporated by reference into any Vendor and/or Seller Agreement (Hereinafter the term “Vendor and or “Seller” shall by referred to and referenced collectively herein as “Seller”), by and between USOC Medical (Hereinafter referred to and referenced herein as “USOC”) and the Seller of any Goods, Merchandise or Services. It is understood and agreed to that any Purchase Order by and between USOC and Seller shall expressly include these USOC Terms & Conditions of Purchase, as if fully set forth in, and is hereby fully incorporated by reference herein. Whether a Purchase Order is defined as an offer, an acceptance or a confirmation, USOC specifically conditions its purchase of the Goods on Seller’s express consent to these terms, despite any difference, additions or conflicting terms contained in any terms proposed by Seller, whether before or after acceptance of a Purchase Order, and USOC specifically objects to and rejects all other terms unless they are explicitly communicated and approved of in writing by an authorized Purchasing Manager of USOC. The Purchase Order contains the entire agreement between the Buyer and Seller with respect to the purchase and sale of Goods and Services. No modifications or additions to the terms set out in the Purchase Order will be valid without the express written consent of an authorized Purchasing Manager of USOC.
RECEIPT OF SHIPMENT:
If delivery is not made by the date indicated in the subject Purchase Order, USOC may, in addition to its other rights, cancel the order, without any liability whatsoever. If in order to comply with USOC’s required delivery date, it becomes necessary for Seller to ship by a more expensive way than specified in the subject Purchase Order, any increased transportation costs resulting therefrom, shall be paid for exclusively by Seller, unless the necessity for such rerouting or expedited handling has been caused by USOC.
All Goods delivered by the terms of this agreement are subject to final inspection and acceptance by Buyer. Acceptance shall not alter or affect the warranties of Seller specified in this agreement. Buyer may hold rejected Goods for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s expense and require their correction or replacement. Seller shall promptly reimburse Buyer for damages sustained by Buyer, including freight costs, as a result of failure of Goods to conform to the provisions and specifications set forth in the Purchase Order.
RIGHT TO INSPECTION BY USOC:
All Goods delivered by the terms of this agreement are subject to final inspection and acceptance by USOC. Acceptance shall not alter or affect the warranties of Seller specified in this agreement. USOC may hold rejected Goods for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s sole expense and require their correction or replacement. Seller shall promptly reimburse USOC for damages sustained by USOC, including freight costs, as a result of failure of Goods to conform to the provisions and specifications set forth in the subject Purchase Order.
UNFORESEEN EVENT/FORCED MAJEURE:
USOC may delay delivery or acceptance due to causes beyond its control. Seller shall hold such goods at the direction of USOC and shall deliver them when the cause affecting the delay has been removed. USOC shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at USOC’s request. Causes beyond USOC’s control shall include, but are not limited to, government action or failure of the government to act where such action is required, strike or other labor trouble, fire, unusually severe weather or any other unforeseen act of God.
CANCELLATION OF PURCHASE ORDER:
USOC shall have the right to modify or cancel the Purchase Order or any part thereof, to refuse delivery of any Goods, and to return to, or hold for the account of Seller, any Goods already received by USOC, upon Seller’s failure to make any delivery in accordance with the terms of the Purchase Order, or failure to comply with shipping and instructions of USOC which include:
- The event that any Goods supplied by Seller do not meet specifications
- Any Goods are defective
- Any Goods are not satisfactory to USOC
- Goods or Services not delivered by agreed upon time
- On account of any unforeseeable cause beyond the control of USOC, including any act or demand of the United States or any act of God or of the public enemy, terrorists, fire, flood, strike, embargo, failure of usual means of transportation and any other case which in the judgment of USOC may adversely affect the sale of any Goods by USOC. USOC, in its discretion and without cause, reserves the right to cancel the Purchase Order or any part of that Purchase Order, and USOC’s maximum liability on account of such cancellation, to the Seller, shall be to pay only the agreed price for Goods that have been delivered as of the time the cancellation is effective. USOC shall reimburse Seller its actual costs of materials and direct labor expended by its attempt to fulfill the Purchase Order prior to the cancellation in reasonable anticipation of fulfillment of the Purchase Order. Such costs are only considered that are absolutely not recoverable by Seller, provided that no allowance shall be made to Seller for any overhead or anticipated profit for undelivered Goods. Seller shall deliver to USOC any inventory paid for by USOC pursuant to the preceding
USOC shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery.
Seller agrees to protect, indemnify, defend and forever hold USOC, its assigns, and its affiliates harmless from and against any and all claims or liabilities and expenses (including attorneys’ fees) arising from (a) Seller’s design, defect, manufacture, assembly, use, handling, sale, recall or distribution of Goods or services purchased within the subject Purchase Order; (b) the performance of the subject Purchase Order by Seller, its employees or agents, whether on or off Seller’s premises; (c) Seller’s breach of any representation, warranty or obligation hereunder; (d) the infringement or violation of any third party’s patents, intellectual property or other rights arising out of or in connection with Seller’s use of Specifications, materials or other items provided to Seller by USOC and/or (e) Seller’s acts or omissions in the performance of its obligations under this Purchase Order, except to the extent that any Claim or Claims are caused solely by the gross negligence or willful misconduct of USOC. Without limiting USOC’s other lawful remedies, if any Goods or Services infringe third party rights, Seller shall, at its expense, promptly procure all rights for USOC’s continued use of such Goods and/or benefit of such Services or replace such Goods and/or Services with equivalent Goods and/or Services which do not infringe upon third party right.
Seller expressly warrants: (a) all Goods and Services furnished (i) to be free from defects in materials or workmanship, (ii) to be of merchantable quality, (iii) to conform to all Specifications (Seller agrees that in the event of a conflict between Specifications provided by USOC and Specifications provided by Seller, Specifications provided by USOC shall control) and (iv) to be fit for the intended purposes (as indicated on the Purchase Order or if it is not so indicated, as indicated by USOC to Seller by means of any communication, written or oral); (b) all Goods delivered and/or Services performed hereunder, not of USOC’s design, will not infringe any patents. Seller hereby grants USOC and its customers an irrevocable, non-exclusive, royalty-free license under any patent owned by Seller, or under which Seller has license rights (i) to use and sell any equipment delivered hereunder and (ii) to use and sell any process carried out with the use of such equipment. All warranties herein: (a) shall survive USOC’s acceptance and payment, (b) shall insure to the benefit of USOC, its successors, assigns and customers, (c) shall be construed as conditions as well as warranties and (d) shall be in addition to, and not in lieu of, any warranties of Seller arising under Applicable Laws. Without limiting the foregoing and in addition to any other remedy available to USOC, if two percent (2%) or more of any Goods furnished hereunder is found defective, USOC may, at its option, reject the entire quantity of Goods or require Seller to replace such entire quantity at no extra cost to USOC, and in either case Seller shall pay for the reshipment of such Goods to Seller. Without limiting the foregoing and in addition to any other remedy available to USOC, if Services are performed not in compliance with the warranties herein, Seller shall, at USOC’s option, either (a) subsequently perform the Services in compliance with the warranties herein at no additional cost to USOC or (b) pay for performance of the Services by a third party of USOC’s choosing. Notice of any Claim or defect may be given at any time within one (1) year after receipt by USOC. Seller shall promptly pay on USOC’s behalf, or if USOC pays, shall reimburse USOC for, any and all damages, costs or expenses, including transportation charges, sustained or incurred by USOC as a result of breach of warranty. Seller hereby assigns to USOC all of its rights under warranties made to Seller by any of its suppliers in connection with any Goods or ingredients or components thereof specifically acquired by Seller for use in furnishing the Goods. Seller shall have an obligation to immediately inform USOC if Seller becomes aware of any material fault in Goods accepted by USOC, Goods that could have been materially affected by a fault in Seller’s related products, or Services that were or may have been performed in compliance with industry best standards. This obligation includes Seller being notified by its suppliers of faulty incorporated supplies, tools or equipment.
The Parties agree that this Agreement was formed and executed in the State of California and/or with the intent of doing so, and with the express intent that this Agreement shall be governed by the laws of the State of California regardless of the location of either Party at the time of formation and signing, and any dispute arising from or related to this Agreement, including but not limited to any interpretation or challenge to this provision regarding choice of law, jurisdiction and venue, shall be governed solely by the laws of the State of California and heard exclusively before the courts of competent jurisdiction in Orange County, California, which shall have sole and exclusive jurisdiction and venue, without reference to the conflict of law principles therein, except that parole evidence shall not be admissible to alter, vary or supplement the terms of this Agreement.
ATTORNEYS FEES & COSTS:
In the event of any arbitration or action at law or in equity between the Parties to enforce or interpret this Agreement, the non-prevailing Party to such litigation shall pay to the prevailing Party all costs and expenses, including reasonable attorneys’ fees and disbursements, incurred therein by such prevailing Party and, if such prevailing Party shall recover judgment in any such action or proceedings, such costs, expenses and attorneys’ fees and disbursements may be included in and as a part of such judgment. The prevailing Party shall be the Party who is entitled to recover his costs of suit, whether or not the suit proceeds to final judgment. If no costs of suit are awarded, then the prevailing Party shall be determined by the court or the arbitrator, as applicable.
Failure by USOC to strictly enforce any provision of this Acknowledgment shall not be deemed a waiver of such provision or create a course of dealing between the Parties pursuant to which performance is not required.
Any action arising out of the agreement between the Parties, except as otherwise provided herein, shall be resolved by binding arbitration in Orange County, California in accordance with the rules of the American Arbitration Association.
Should any portion of this Agreement be declared or determined by any court or arbitrator to be illegal, invalid or unenforceable, the illegal, invalid, or unenforceable portion of this Agreement shall be interpreted as narrowly as possible and shall be deemed stricken and severed from this Agreement, and all other parts, terms, provisions and portions of this Agreement shall remain unaffected and shall be given full force and effect.
The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any Party, and shall be construed without any consideration as to which Party drafted it.
The titles of the various sections in this Agreement are intended solely for convenience
of reference, and are not intended and shall not be deemed for any purpose whatsoever to modify, explain or place construction upon any of the provisions of this Agreement and shall not affect the meaning or interpretation of this Agreement.