FRESENIUS KABI USA, LLC GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

Transcription

1 FRESENIUS KABI USA, LLC GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES 1. General Terms: These General Terms and Conditions shall apply to and be incorporated by this reference in all Purchase Orders issued by Fresenius Kabi USA, LLC, or any of its affiliated entities (collectively, Buyer ), to any Supplier of Goods or Services to Buyer (the Supplier or Vendor ). Supplier s acceptance of any Purchase Order shall also be deemed acceptance of the General Terms and Conditions provided below. 2. Definitions: (a) (b) Agreement shall mean any agreement between Buyer and Supplier consisting of a Purchase Order and these General Terms and Conditions; Delivery Date shall mean: (i) (ii) in relation to Goods, the date for delivery of the Goods as specified in the Purchase Order; in relation to Services, the date for completion of the Services as specified in the Purchase Order; (c) Goods shall mean the items, materials, products, personal property, inventory, or any other tangible property to be supplied by Supplier as described in the Purchase Order; (d) (e) (f) (g) Purchase Order shall mean any written or electronically issued request for Goods or Services by Buyer to Supplier, including SOWs and Change Orders;; Services shall mean the services, labor, or tasks to be performed by Supplier described in the Purchase Order; Supplier shall mean any vendor identified in the Purchase Order; Supply shall mean the delivery of Goods to be supplied or the performance of Services, as described in the Purchase Orders and each in accordance with these General Terms and Conditions. 3. Compliance: Supplier shall supply the Goods in accordance with the terms of the Purchase Order and the General Terms and Conditions and satisfy the obligations as required by the Agreement. (a) Delivery Time: The Goods shall be delivered as follows, unless designated otherwise in the Purchase Order: 1

2 (i) For Domestic Orders, deliveries are F.O.B. Destination to the location designated on the Purchase Order. For International Orders, deliveries are Delivered Duty Paid as defined by Incoterms from time to time. Delivery shall not be deemed complete until Goods have actually been received and accepted by Buyer according to the Agreement. All risk of loss shall remain with Supplier until the Goods have actually been received and accepted by Buyer at the applicable destination according to the Agreement. (ii) Goods shall be delivered to Buyer not later than the Delivery Date(s) specified in the Purchase Order and in compliance with the General Terms and Conditions. If Supplier is required to use a means of transportation more costly than the means designated in the Purchase Order to meet the Delivery Date, Supplier shall bear any additional cost, unless modified in a prior writing executed by Buyer and Supplier. Buyer shall have the right to reject without liability any Goods received later than the Delivery Date, by written notice to Supplier. Buyer may choose, at Supplier s risk and expense, to either hold any such rejected Goods pending Supplier s written reasonable direction or ship them at Supplier s expense to Supplier s address shown on the face of the Purchase Order. Any rejected Goods held by Buyer shall be held at Supplier s risk and expense for a period not to exceed thirty (30) days pending Buyer s receipt of Supplier s written reasonable direction and if Supplier so instructs Buyer, such goods shall be returned to Supplier at Suppliers risk and expense. Any such Goods remaining in Buyer s possession without Buyer s receipt of Supplier s written reasonable direction after the expiration of such thirty (30) day period may be destroyed or otherwise disposed of by Buyer at Supplier s risk and expense. Supplier shall within ten (10) business days of receipt of Buyer s notice of rejection remit to Buyer that portion of the price paid by Buyer for any rejected Goods together with any and all expenses, costs and charges incurred by Buyer relating to said rejection, including without limitation destruction and transportation costs. (b) Inspection: Buyer shall have the right to inspect and test the Goods prior to delivery, or at the time and place of receipt, before accepting and paying for the Goods. Defective Goods or Goods not in compliance with Buyer s Purchase Order, drawings, specifications, or standards shall, at Buyer s election, and at Supplier s sole risk and expense, be held pending Buyer s receipt of Supplier s written reasonable instructions or shipped to Supplier at Supplier s address on the face of this Agreement. Any Goods which Buyer elects to hold, shall be held at Supplier s risk and expense for a period not exceeding thirty (30) days pending Supplier s written reasonable instructions. If Supplier so instructs Buyer within said thirty (30) day period, such Goods shall be returned to Supplier at Supplier s risk and expense. Any such Goods remaining in Buyer s possession without Buyer s receipt of Supplier s written reasonable instructions after the expiration of such thirty (30) day period may be destroyed or otherwise disposed of by Buyer at Supplier s risk and expense. If inspection or test discloses that any part of the Goods received are defective or not in compliance with Buyer s Purchase Order, drawings, specifications or standards, Buyer shall have the right to cancel any unshipped portion of the Goods identified in the Purchase Order in addition to any other rights or remedies it may have at 2

3 law or in equity. Buyer s full or partial payment for Goods prior to inspection shall not constitute acceptance thereof and shall be made without prejudice to any and all claims Buyer may have against Supplier or any other party. Supplier shall remit to Buyer that portion, if any, of the price paid by Buyer for any defective or non-compliant Goods together with any and all costs, expenses and charges relating thereto, including without limitation destruction and transportation costs. Buyer shall also be entitled to receive credit for any Goods later rejected by Buyer as not being in compliance with this Agreement or damaged goods that are later returned. Buyer shall also have the right to send one or more of its authorized representatives to inspect Supplier s business operations (including without limitation manufacturing and warehouse facilities) at any time during regular business hours. If for any reason Supplier s business operations do not comply with applicable laws, ordinances, rules and regulations, Supplier shall remedy any such deficiency immediately and at its own cost and expense or be deemed to be in default of this Agreement. (c) Warranties: Supplier represents and warrants to and for the benefit of Buyer, its successors, assigns, customers and ultimate users of Buyer s products the following: (i) General: (1) The Goods delivered pursuant to the Agreement and all packaging materials will: (a) conform to all written proposals, descriptions, drawings, specifications, samples or models furnished by Supplier, and to the standards of Buyer; (b) pass without objection in the trade; (c) be fit for the ordinary purposes for which goods are used; (d) be fit for their intended purposes and shall be new, not refurbished or reconditioned and that all services shall be rendered in a good and workmanlike manner by skilled personnel; (e) run without variation and be of even kind, quality and quantity within each unit and among all units of the Goods; (f) be free from defects of workmanship and/or material under proper and normal use; (g) not be and do not constitute articles prohibited or misbranded within the meaning of the Federal Food Drug and Cosmetics Act ( the Act ) and that the Goods will not be an article which may not under Sections 404 and 505 of the Act be introduced into interstate commerce; and (h) be manufactured in a facility approved by the Federal Food and Drug Administration in accordance with current good manufacturing practices ( cgmp ); (2) Supplier shall maintain, at its sole cost and expense, all licenses, permits, approvals and the like necessary to conduct its business and perform its obligations under this Agreement; (3) Supplier shall hold in strict confidence the terms and existence of this Agreement and Supplier shall not publicly announce or disclose the existence or the terms of this Agreement or any Purchase Order without Buyer s prior written consent; (4) Supplier shall not use Buyer s name in any way, including without limitation, a general or sample listing of Supplier s customers without Buyer s prior written consent. (ii) Title: Title conveyed to Buyer shall be good and merchantable and its transfer rightful and that the Goods shall be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever. All materials and any inventions (whether or not patentable), works of authorship, trade secrets, ideas, concepts, trade names and trade or service marks (collectively Inventions ) created or prepared for Buyer, shall belong exclusively to Buyer. Supplier hereby 3

4 assigns all such Inventions to Buyer and its assigns, except for any works for hire which do not require an assignment to vest ownership in Buyer. Supplier agrees, at no charge, to execute, and to cause its employees to execute any and all documents to effectuate such assignments as requested by Buyer, in order to permit Buyer to protect, perfect, register, record and maintain its rights in the Inventions and effective ownership of them throughout the world. (iii) Title Infringement: Goods delivered shall be free of any claim of any person for infringement, misuse and/or disparagement, of any patent, copyright, trademark, trade name or the like. Supplier further warrants that all Goods shall not infringe on any third party patent, copyright, trade secret, trade name, trademark or service mark, or other proprietary right. At its own expense Supplier shall defend, indemnify and hold harmless Buyer, its customers, officers, directors, shareholders, affiliates, divisions, subsidiaries, employees, agents, representatives, successors and assigns against any loss, damage, expense (including reasonable attorney s fees), decree, and/or costs arising directly or indirectly from and/or relative to any claimed infringement of patents, copyrights, trade secrets, trade names, trademarks, service marks, or other proprietary right in connection with Goods supplied. The covenants, representations and warranties made herein shall survive the termination or expiration of this Agreement for a period of ten (10) years. 4. Provision of Services: Supplier shall supply the Services in compliance with the Purchase Order and the General Terms and Conditions and satisfy any and all obligations required by the Agreement. (a) (b) (c) Standard of Performance. Supplier shall use reasonable care and due diligence in performing the Services in accordance with all industry standards and shall comply with all applicable federal and state laws, regulations, guidance, ethical standards and Buyer s internal policies, including Buyer s then-current Suppliers Code of Conduct, which is available upon request and also available at Use of Subcontractors. Buyer is contracting with Supplier because of Supplier s special and unique qualifications. Supplier may engage subcontractors for the provision of Goods and/or Services only upon the prior written consent of Buyer. In the event that Buyer consents to Supplier s use of subcontractors, such subcontractors shall be bound to the same provisions of the Agreement as are applicable to Supplier. The Supplier shall be liable for the acts and omissions of its personnel, affiliates, sub-contractors, suppliers, and each of their personnel, as if such acts and omissions were those of Supplier itself. Time for Performance: The Services shall be performed by the Delivery Date set forth, or in accordance with, the dates specified in the Purchase Order. Supplier will promptly notify Buyer in writing of any and all events which could affect the obligation of Supplier 4

5 to make deliveries of services at specified times and of corrective measures that Supplier will implement to comply with Supplier s obligations under the Order. Any change to the Services set forth in the Agreement shall be approved in writing by Buyer before the Supplier implements any such change in the performance of Services provided. Should Supplier change the performance of Services without prior written approval from Buyer, Buyer shall not be liable for charges related to such changes. Should an unapproved change to the performance of Services delay Delivery Date or otherwise harm Buyer, Buyer, within its sole discretion, shall have the right to reject the continued performance of any Services set forth in the Agreement without further liability of Buyer. (d) Inspection: Acceptance by Buyer of services shall occur when the Service has been satisfactorily performed and meets all applicable performance criteria set forth in the Purchase Order. Buyer shall inspect and notify Supplier in writing within a reasonable time from the date Services have been received, whether Buyer has rejected Services. Buyer s payment of any invoice shall not be deemed to be an acceptance of Services, and its acceptance of Services shall not be construed as evidence that the Services do, in fact, conform in all respects with Services requirements set forth in the Purchase Order, or as a waiver of Supplier s warranty obligations as set forth below. (e) Warranties for Services: Buyer is entering into this Agreement with Supplier in reliance on Supplier s special and unique abilities with respect to performing the Services set forth in the Purchase Order. Supplier represents and warrants to and for the benefit of Buyer in relation to the performance of Services that: (i) Services will be performed in strict accordance with the Agreement and in a professional and workmanlike manner consistent with industry standards; (ii) Supplier will use parts, material and other goods which are new, of good and merchantable quality and are fit for their intended purpose; (iii) Supplier is a qualified expert and is familiar with the nature of the Services and the materials necessary for the performance of the Services; (vi) Supplier has the skill and staff necessary to perform the Services in a timely, efficient and professional manner; (vii) Supplier will familiarize itself with, and shall comply with, Buyer s internal Standard Operating Procedures in the course of performing the Services, copies of which Buyer shall provide to Supplier; (viii) Supplier shall maintain, at its sole cost and expense, all licenses, permits, approvals and the like necessary to conduct its business and perform its obligations under this Agreement; (ix) Supplier will familiarize itself with, and shall comply with Buyer s security instructions and procedures, copies of which Buyer shall provide to Supplier; 5

6 (x) (xi) (xii) the Services to be performed shall not infringe, misappropriate or violate any patent, copyright, trade secret or other intellectual property right of any third party; Supplier has no conflict of interest with respect to the Services; Supplier shall not enter into a contract or agreement which will create a conflict of interest or which will prevent Supplier from freely performing any of the provisions of this Agreement; 5. Price: The price payable for Goods or Services shall not exceed the lower of the price(s) stated on the Purchase Order or the price(s) charged by Supplier to its most favored customers at time of shipment for Goods of the same kind and quality, taking into account any quantity discount, and at the time of Service completion for Services similarly performed. Pricing for Goods on the Purchase Order is inclusive of applicable taxes, freight, packaging, transportation, packing, crating, insurance handling and all other charges, whether similar or dissimilar, unless otherwise indicated on the face of the Purchase Order. No change to the price of Goods or Services will be allowed against Buyer unless Buyer has agreed to such change in writing. In the event Supplier breaches this clause 5, the prices of the Goods and/or Services shall be reduced accordingly retroactive to the date of such breach. 6. Payment terms: Payment terms for Goods are 2% 15 net 60 unless otherwise agreed to in writing by both Buyer and Supplier. Payment terms for Services are 2% 15 net 30 unless otherwise agreed to in writing by both Buyer and Supplier. Buyer shall receive the 2% 15 standard or negotiated discount regardless of whether the discount is shown on Supplier s invoice. Unless freight and other charges, where applicable, are itemized, discount will be taken on the full invoice amount. Payment is required to be made via ACH Electronic payment. The Supplier will be required to provide their banking information to accommodate payment 7. Invoices: Supplier shall issue a separate invoice (in duplicate) for each shipment made against this Purchase Order. For Goods, each invoice must contain this Purchase Order number, Buyer s part number(s), if any, and quantities shipped. Unless otherwise specified, no invoice for Goods shall be issued prior to shipment of goods and no payment will be made prior to receipt and acceptance of Goods and a correct invoice. For Services, each invoice must contain a Purchase Order number and shall provide a detailed description of the Services performed, including the date and time spent on such Services. Unless otherwise specified, no invoice for Goods or Services shall be issued prior to Buyer s acceptance of the Goods and/or Services. Any Supplier s delay in delivering an invoice or invoicing for Goods shipped or Services performed ahead of the specified schedule or sending invoices with errors or omissions may be considered just cause for Buyer to withhold payment, without impacting Buyer s discount pursuant to 6

7 Section 6 above. Payment terms shall apply from the date of the receipt of the Good(s) for Goods invoices, the completion of the Service(s) for Services invoices, or the correct invoice, whichever is later. 8. Supplier Indemnities: Supplier shall defend, indemnify and hold harmless Buyer, its customers, officers, directors, shareholders, affiliates, divisions, subsidiaries, employees, agents, representatives, successors and assigns and users of the Goods or Services with respect to all claims, liability, damage or expenses incurred: (a) on account of death or injury to any person or damage to any property arising from or in connection with any Goods and Services supplied; and/or (b) arising from, relating to and/or in connection with: (i) Seller s breach of any of its agreements hereunder; (ii) any actual or alleged defects in the goods; (iii) any actual or alleged breach of warranty; or (iv) any failure of Seller to deliver the Goods on a timely basis or perform the Services in a timely manner. The indemnity under this Clause 8 shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnity shall survive delivery and acceptance of Goods and Services and termination or expiration of this Purchase Order or Agreement, if any, for a period of five (5) years. 9. Compliance with Laws: By the acceptance of this Agreement, Supplier represents and warrants that the Goods provided pursuant to this Agreement shall be manufactured, shipped, stored and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders and industry standards, including without limitation: the Federal Food, Drug and Cosmetic Act; cgmp; the Federal Occupational Safety and Health Act of 1970; the Fair Labor Standards Act; Executive order 11246, as amended, Consumer Product Safety Act; Executive Order 11247, as amended by Executive Order 11375, customs laws along with any and all regulations, amendments and standards promulgated or adopted under any of the foregoing, all of which are incorporated by reference. Supplier further represents and warrants to Buyer that it shall comply and cause each of its employees, agents and representatives to comply with all such laws, codes, ordinances, regulations and orders. Supplier shall promptly furnish, upon Buyer s request, all certifications required under any such laws, codes, ordinances, regulations and orders. In providing either Goods or Services, Supplier shall comply with all applicable federal and state laws, regulations, guidance, ethical industry standards and Buyer s internal policies. 10 Insurance Required by Supplier: Seller shall obtain and keep in force for five (5) years after the date of this Agreement, General Comprehensive Liability Insurance covering each occurrence of bodily injury and property damage in the amount of not less than $1 Million Dollars (or such other amount as Buyer may indicate) combined single limit with special endorsements providing coverage for: 7

8 (a) (b) (c) (d) (e) Products and Completed Operations Liability; Blanket Broad Form Vendor s Liability; Blanket Contractual Liability including an additional endorsement deleting the Contractual Liability exclusion for products and completed Operation Liability; Workers Compensation Insurance, including Employer s Liability in accordance with applicable Statutory Requirements; Seller shall provide a Certificate of Insurance acknowledging the coverages specified herein and providing Buyer within thirty (30) days advance notice of cancellation, material change or non-renewal of such policies. 11. Choice of Law: These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware and their interpretation, construction and enforcement shall be determined pursuant to the laws of such state without giving effect to conflict of law principles. 12. Remedies: Buyer shall have all rights and remedies specified in the Agreement. All such rights and remedies are cumulative. No delay or failure by Buyer to exercise any right or remedy shall impair, in any manner whatsoever, any of such rights or remedies or be construed to be a waiver of any breach or acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude other or further exercise thereof or the exercise of any other right or remedy. Supplier agrees to pay all costs and expenses paid or incurred by Buyer in enforcing its rights under this Agreement, including, without limitation reasonable attorney s fees and costs. 13. Default and Termination: Buyer reserves the right to terminate this Agreement in whole or in part with immediate effect by providing written notice to Supplier if: (a) (b) (c) (d) (e) Goods are not shipped as specified in this Agreement; Supplier is in breach of this Agreement and Buyer determines, in its sole discretion, that such breach is incapable of being remedied; Supplier is in breach of this Agreement and such breach is, in Buyer s sole discretion, capable of being remedied, but Supplier fails to remedy the breach within seven (7) days of its receipt of a written notice requiring the remedy; Supplier advises Buyer in writing that it is unable or unwilling to complete performance of the Agreement; Supplier becomes bankrupt or insolvent; 8

9 14. Termination for Convenience: Buyer may cancel a Purchase Order and terminate this Agreement for convenience and without cause at any time upon fifteen (15) days advance written notice to Supplier prior to the Delivery Date shown on the Purchase Order. 15. Procedure Upon Termination: Should Buyer terminate this Agreement pursuant to Clause 14 Buyer may, without payment or compensation to Supplier: (a) (b) Take possession of all documents in Supplier s possession which are connected to the Supplier and reasonably required in order for Buyer to facilitate completion of the Supply; Take an assignment of Supplier s rights and benefits under any contracts with subsuppliers, including any warranties or guarantees and Supplier agrees to cooperate in facilitating such assignment. 16. UCC Applicability: This Agreement shall be governed by any applicable provision of Article 2 of the Uniform Commercial Code in effect in the State of Delaware, except to the extent that any provision of these Terms and Conditions are clearly inconsistent thereto. To the extent that this Agreement entails delivery of Goods or provision of Services, such Services shall deemed goods within the meaning of the Uniform Commercial Code, except where to deem such services as goods would result in an absurdity. 17. Confidentiality: Supplier shall sign a Confidentiality Agreement with Buyer, which will require updating and renewal on an annual basis. 18. Force Majeure: Supplier shall be excused from any delay or failure in performance hereunder arising out of cause beyond its reasonable control, including without limitation, fires, labor strikes, embargoes, acts of God, production or delivery problems, acts of government, war, sabotage, inability to secure transportation. Upon occurrence of a Force Majeure event, Supplier shall promptly notify Buyer of the Force Majeure event, its effect on performance, and how long Supplier expects it to last. During the Force Majeure event, Supplier shall use its best efforts to reduce the effects of such events on Supplier s performance of its obligations. 19. Governmental Sanction: Buyer will immediately cease conducting business if Supplier s name or identification number appears on any government sanction list and will not resume until rectified to the satisfaction of Buyer, with no penalty to Buyer. 9

10 ACCEPTED BY: [Name of Supplier] Signature: Print Name: Title: Date: 10