These terms and conditions of purchase (“Agreement”) constitute a final, complete and exclusive agreement regarding the terms and conditions of sale and purchase between Symmetry Surgical, Inc. (“Buyer”) and the recipient (the “Seller”) of this purchase order (the “PO”). Seller’s order confirmation or supply of any products (the “Products”) or services pursuant to this PO constitute irrevocable acceptance of all terms in this Agreement. Buyer objects to and is not bound by any term on Seller’s invoice, acceptance, or any other document which is inconsistent with these terms and conditions, and such are only valid if signed by an officer of Buyer. This Agreement supersedes any prior agreements, terms, conditions or other agreements between the Parties that are inconsistent herewith.
1.INSPECTION, ACCEPTANCE, AND APPROVALS – All items ordered from Seller by Buyer (the “Products”) shall be subject to inspection by Buyer, and Buyer shall not be deemed to have accepted the Products unless it has not given notice of rejection within 60 days of its receipt. Buyer may access Seller’s premises during normal work hours to audit compliance with this Agreement and applicable law.Buyer may, at its option, handle any Product that is nonconforming or delivered beyond a due date with any (or any combination) of the following: i) return the Product for credit; ii) require prompt replacement of any or all rejected Products by Seller at Seller’s expense; iii) require prompt repair of any or all Products by Seller at Seller’s expense; iv) correct any or all rejected Products by the means most suitable to Buyer at Seller’s expense, v) acquire substitute Products from a third party, with Seller compensating Buyer for any cost incurred in excess of the cost Buyer would have paid Seller for the Products; or vi) accept any of the rejected Products as delivered with an equitable reduction in the price. Return to Seller of any rejected Products shall be at Seller’s expense. No partial shipments of Products shall be made to Buyer without Buyer’s express written consent.
2.WARRANTY – The Products are hereby guaranteed, as of the date of receipt by Buyer, to be not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act (the “Act”). Seller warrants that the Products will conform to specifications provided by Buyer, as well as any drawings, samples, or other description furnished by Buyer and that all Products will be merchantable, of good material and workmanship, and free from any defect for a period equal to the life of the Product. Such warranties, together with Seller’s service warranties, if any, shall survive inspection, acceptance of, and payment for the Products, and shall run to Buyer, its successors, assigns, customers and ultimate user or purchaser of each such Product (or any product or item into which a Product is incorporated).
3.ASSIGNMENTS – Seller may not assign its obligations hereunder without Buyer’s written approval. Buyer may assign this Agreement to a corporate affiliate.
4.PAYMENT – Buyer shall pay the undisputed portions of Seller’s invoices within forty five (45) days of its receipt of each valid invoice.
5.CHANGES – Buyer may at any time, by a written notice, make changes to this PO. If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of Seller’s work or supply of Products, or affects any other provisions thereof, the parties shall meet to reach an equitable adjustment to the price and/or delivery schedule, as well as to such other provisions as may be affected. Any claim by Seller for adjustment under this clause shall be shared with Buyer within 3 days from the date of receipt of the written order directing the change and no change shall be effective without Buyer’s express written consent. Where the cost of raw materials made obsolete or excess as a result of a change is included in the equitable adjustment, Buyer shall have the right to prescribe the manner of disposition of such raw materials. Any action taken by the Seller which affects any provisions of any PO shall not be effective or entitle the Seller to an equitable adjustment unless such action has been specifically accepted by written confirmation by a duly authorized Buyer representative.
6.DELIVERIES – Deliveries shall be made strictly in accordance with the delivery terms set forth in this PO, and except as otherwise provided in the PO, in the exact quantities ordered. Failure to comply with delivery terms shall entitle Buyer to terminate the PO, in whole or in part, and return any Products that are not delivered in compliance herewith to Seller at Seller’s sole cost and expense. If it appears that Seller will not meet delivery date(s) set forth on the PO then Seller shall promptly notify Buyer in writing and, if requested by Buyer, ship via air or expedited routing to avoid or minimize delay to the maximum extent possible, the added cost to be borne by the Seller. Buyer expressly retains all other rights or remedies provided by law for any violation of the clause, and no action by Buyer shall constitute a waiver of any such right or remedy.
7.PACKAGING – Seller shall sufficiently package all Products to afford adequate protection against corrosion, deterioration, and physical damage during shipment. Products shall be packed in containers acceptable to the common carrier and which will insure safe delivery at destination.
8.LABELING – Seller shall label all Product according to specifications provided by Buyer, as well as any drawings, samples, templates or other description furnished by Buyer.
9.CONFIDENTIAL INFORMATION – The Buyer retains all rights in designs, equipment, drawings, specifications, financial information, pricing information, marketing plans, production plans, manufacturing processes, reports, and other information furnished to Seller (“Confidential Information”), and they shall remain the sole property of Buyer. Seller agrees not to use and/or disclose Confidential Information except as permitted herein. Seller shall use all reasonable care, but in no event less than the same degree of care that it uses to protect its own confidential information of similar importance, to prevent the unauthorized use, disclosure, publication or dissemination of the Confidential Information. Seller shall restrict access to the Confidential Information (and any concepts, invention or other information derived therefrom) to only those of its employees, employees of subsidiaries or related corporate entities, and representatives or advisors to whom such access is reasonably necessary or appropriate for carrying out the permitted use of such confidential information.Seller shall return all Confidential Information to Buyer upon Buyer’s request or upon completion of all work performed by Seller for Buyer.
10.WAIVERS – Failure by Buyer to insist on performance of any terms and conditions or requirements of this Agreement shall not be construed as a waiver of such terms, conditions, or requirements and shall not affect the right of Buyer thereafter to enforce each and every term and condition or requirement.
11.CHOICE OF LAW – It has been agreed that this Agreement has been made and entered into within Tennessee, USA and shall be construed and interpreted according to Tennessee laws. Any action arising from or connected with this PO shall be taken in the courts covering Davidson County, Tennessee and Seller irrevocably submits to such jurisdiction for any dispute between the parties.
12.GRANT OF LICENSE – Seller hereby grants Buyer an irrevocable, royalty free, fully paid, nonexclusive license to use any and all of Seller’s Confidential Information including but not limited to patents, copyrights and trademarks, for the purpose of receiving, storing, marketing or selling any Products.
13.TERMINATION – Buyer may terminate or modify any PO, in whole or in part, by a notice to Seller. In the event of termination or modification without cause, Buyer shall be liable to Seller for no more than the following amounts, without duplication: (1) the PO price for all Products which have been delivered in accordance with the PO and for which payment has not previously been made; and (2) the actual cost incurred by Seller in accordance with the PO which is properly allocable or apportionable under generally accepted accounting practices to the terminated portion of the PO, including the cost of discharging liabilities which are also allocable or apportionable. Buyer’s liability hereunder shall not exceed the aggregate price specified in the PO for the Products terminated, less payments otherwise made or to be made. In the event of the institution of any bankruptcy proceedings by or against Seller, or the appointment of a receiver or trustees or a general assignment for the benefit of creditors of Seller, which actions are not dismissed within thirty (30) days, in addition to other rights, Buyer may remove from Seller’s premises all material, tooling, or equipment which is the property of Buyer. In the event of termination, for Seller’s breach or negligence, Buyer shall have the right to procure or manufacture, on such terms and in such manner as Buyer may deem appropriate, products similar to those Products contained in any terminated PO and to recover from Seller the excess cost for such similar products, provided, however, Seller, except with respect to defaults of subcontractors, shall not be liable for such excess costs where the failure upon which the termination is based has arisen out of causes beyond the control of Seller and without the fault or negligence of Seller.
14.COMPLIANCE – Seller shall comply with all applicable laws and regulations in performing hereunder.
15.INDEMNITY AND LIMITATION OF LIABILITY. Seller shall indemnify and hold harmless Buyer and its related corporate entities from and against any and all losses, damages, liabilities, claims, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any breach of representation, warranty and/or agreement hereunder or negligence by the Seller or for any claims of injury or death related to any Product or Service provided hereunder. This section shall survive expiration or termination of this Agreement.
16.EQUAL OPPORTUNITY. When applicable, Seller shall comply with the EO Clause in Section 202 of Executive Order 11246. When applicable, Seller shall abide by the requirements of 41 C.F.R. § 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. When applicable, Seller shall abide by the requirements of 41 C.F.R. § 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
17.MARKING. All products are to be marked according to the requirements of Symmetry Surgical’s, WI 12875 Rev B, Supplier Marking Requirements Rev D.
18.MATERIAL AND PROCESS CERTIFICATIONS. Material and process certifications are required for all components for traceability. Certification include but are not limited to raw materials which includes the country of origin and the melt source, purchased components, heat treat, passivation, electro polish, and certificate of conformance. All certifications must be identified by component part number from Symmetry Surgical, or customer drawing(s) to assure traceability and ease of proper verification and review. Manufacturing lot number has to be clearly stated with each delivery on either a packlist, invoice or certificate of conformance.
19.FIRST ARTICLE. Seller will provide a separate drawing, shipment, export document, delivery note and invoice for first article production units with a note “first article inspection” on the delivery note and invoice.