WELLNOW URGENT CARE PURCHASE ORDER FOR PRODUCTS AND/OR SERVICES STANDARD TERMS AND CONDITIONS
General Terms and Conditions for Purchase of Goods
(a) These Terms and Conditions (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) by ASP UC Support, LLC, a Delaware corporation with an address at 281 Sanders Creek Parkway, East Syracuse, NY 13057, and its affiliates (collectively, “Buyer”),from the Seller identified in the Purchase Order
(b) Any written contract signed by any Buyer and Seller is in existence covering the sale of the Goods covered hereby (an “Existing Agreement”), any purchase order which from time to time maybe issued by Buyer (each, a “Purchase Order”), and these Terms comprise the entire agreement between the parties (collectively, this “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. In the event of any conflict between any provisions of this Agreement, the provisions of this Agreement will control in the following priority order: (i) the terms of the Existing Agreement; then (ii)these Terms; and then (iii) the Purchase Order.
(c) These Terms prevail over any of Seller’s general terms and conditions of sale and Seller’s other commercial documents (including without limitation any proposal, offer to sell, quotation, order confirmation, acknowledgment, bill of lading, or invoice) regardless whether or when Seller has submitted such documents. Reference in any Purchase Order to any such commercial document will in no way constitute a modification of any of the terms of this Agreement. Any terms contained in any commercial document of Seller or proposed at any time by Seller in any manner, written or oral, which add to, vary from or conflict with the terms and conditions in this Agreement are deemed to be material alterations, and notwithstanding any acceptance of Goods by Buyer or other course of conduct, such terms will be deemed to be objected to and rejected by Buyer without need of further notice thereof and will be of no effect or in any circumstance binding upon Buyer unless expressly accepted by Buyer in writing. Written acceptance or rejection by Buyer of any particular additional term or condition will not constitute an acceptance by Buyer of any other additional term or condition.
(d) The shipment of any Goods will constitute acceptance by Seller of any Purchase Order in connection therewith as well as acceptance by Seller of the terms and conditions contained in this Agreement. Buyer may withdraw any Purchase Order at any time.
2. Delivery of Goods.
(a) Seller must deliver the Goods in the quantities and on the date(s)specified in any Purchase Order or as otherwise directed in writing by Buyer (the “Delivery Date”).If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement or any Purchase Order immediately by providing written notice to Seller and Seller will indemnify, defend, and hold harmless Buyer and the Indemnitees (as defined below) against any losses, claims, damages and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller must redeliver such Goods on the Delivery Date.
(b) Seller will deliver all Goods to the address specified in the applicable Purchase Order or as otherwise directed in writing by Buyer (the “Delivery Point”) during the normal business hours of such location or as otherwise instructed by Buyer. Seller will pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if Seller requires Buyer to return any packaging material. Any return of such packaging material will be made at Seller’s risk of loss and expense.
(c) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods, including without limitation all performance dates, timetables, project milestones and other requirements in this Agreement.
(d) These Terms apply to any repaired or replacement Goods.
(a) Buyer is not obligated to purchase any quantity of Goods except for such quantity(ies) as may be specified either: (i) in a Purchase Order; or (ii)on a separate written release issued by Buyer pursuant to a Purchase Order (“Order Quantity”).
(b) If Seller delivers more or less than the Order Quantity and/or in advance of or after the Delivery Date, Buyer may reject all or any excess Goods. Any such rejected Goods will be returned to Seller at Seller’s sole risk and expense, including without limitation any cost incurred by Buyer related to storage and handling of such Goods.
(c) If Buyer elects to accept rather than reject Goods delivered above or below the Order Quantity, the Price (as defined below) for the Goods will be adjusted on a pro-rata basis to reflect the amount actually delivered.
(d) Unless otherwise agreed to in writing by Buyer, Seller will not make material commitments or production arrangements in excess of the quantities specified in a Purchase Order or release and/or in advance of the time necessary to meet Buyer’s Delivery Date. Should Seller enter into such commitments or engage in such production, any resulting exposure will be at Seller’s sole risk.
4. Shipping Terms
Unless otherwise stated on a Purchase Order, all Goods will be delivered DDP (Incoterms® 2010) Delivery Location. Buyer may specify contract of carriage in all cases. Failure of Seller to comply with any such Buyer specification will cause all resulting transportation charges to be for the account of Seller and give rise to any other remedies available at law or equity. Seller will give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller will provide Buyer all shipping documents, including without limitation the commercial invoice, packing list and any other documents necessary to release the Goods to Buyer within two business days after Seller delivers the Goods to the transportation carrier. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Purchase Order.
5. Title and Risk of Loss
Title passes to Buyer upon the earlier of delivery of the Goods to the Delivery Location or payment of the Price for such Goods. Seller will bear all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point.
6. Inspection and Rejection of Non-conforming Goods
(a) Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods. Buyer may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective.
(b) If Buyer rejects any portion of the Goods, Buyer has the right at its option and sole discretion, at Seller’s expense, and effective upon written notice to Seller, in addition to any other rights and remedies it may have by law, contract, or at equity, including but not limited to seeking recovery of any and all damages and costs emanating therefrom, to:(i) terminate or rescind this Agreement and/or any Purchase Order in whole or in part without liability; (ii) accept the Goods at a reasonably reduced price; (iii) reject and return the Goods; or, (iv) require immediate repair and/or replacement of the rejected Goods.
(c) If Buyer requires replacement of the Goods, Seller will, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including without limitation transportation charges for the return of the defective Goods and the delivery of replacement Goods. For any repairs or replacements, Seller, at its sole cost and expense, will perform any tests requested by Buyer to verify conformance to the applicable Purchase Order. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party, charge Seller the cost thereof, and terminate this Agreement for cause pursuant to Section15(a).
(d) Any inspection or other action by Buyer under this Section will not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer will have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods will be the price stated in the Existing Agreement (the “Price”). If no price is included in the Existing Agreement, or if there is no Existing Agreement, the Price will be the price set out in the applicable Purchase Order. If no price is included in the applicable Purchase Order, the Price will be the price set out in Seller’s published price list in force as of the date of the Purchase Order.
Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including without limitation all sales, use or excise taxes. If Seller is obligated by law to charge any value added and/or similar tax to Buyer, Seller will ensure that it is invoiced to Buyer in accordance with applicable rules so as to allow Buyer to reclaim such value added and/or similar tax from the appropriate government authority.
No increase in the Price will be effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion.
8. Payment Terms
(a) Seller will issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms.
(b) Buyer will pay all properly invoiced amounts due to Seller within 60days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. In the event of a payment dispute, Buyer will deliver a written statement to Seller listing all disputed items and providing a reasonably detailed description of each disputed item. The parties will seek to resolve all such disputes expeditiously and in good faith. Seller will continue performing its obligations under this Agreement not withstanding any such dispute.
(c) Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to Buyer by Seller against any amount payable by Buyer to Seller.
(d) All payments hereunder must be in US dollars and made by check, wire transfer, credit card, or ACH.
(a) Seller warrants to Buyer that for a period of twenty-four (24) months from the Delivery Date, all Goods will:
(i) be free from any defects in workmanship, material, and design;
(ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer or otherwise mutually agreed upon;
(iii) be fit for their intended purpose and operate as intended;
(iv) be merchantable;
(v) be free and clear of all liens, security interests, or other encumbrances; and
(vi) not infringe or misappropriate any third party’s patent, trademark, copyright, trade secret, or other intellectual property rights.
(vii) These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer.
(b) The warranties set forth in this Section 9 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller will, at its own cost and expense, promptly: (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including without limitation transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, and (ii) re-perform the applicable Services.
If any governmental authority seizes or orders recall of any of the Goods or if Seller deems it necessary to recall any Goods for any reason, Seller will reimburse Buyer for all direct and consequential damages incurred by Buyer in connection with such seizure or recall and, at Buyer’s option, either: (a) replace, at no cost to Buyer, the seized or recalled Goods with an equal quantity of complying Goods; or (b) refund the purchase price paid by Buyer for such Goods.
11. General Indemnification
Seller will defend, indemnify, and hold harmless Buyer, its subsidiaries and parent companies, their respective affiliates, successors, and assigns, all of their respective directors, managers, officers, members, partners, shareholders, owners and employees, and Buyer’s customers,(collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including without limitation reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods or Seller’s negligence, willful misconduct, or breach of any of the Terms. Seller will not enter into any settlement with a third party for which Buyer is subject to indemnification hereunder without Buyer’s prior written consent.
12. Intellectual Property Indemnification
Seller will, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitees’ use or possession of the Goods infringes or misappropriates the patent, trademark, copyright, trade secret, or other intellectual property right of any third-party. In no event will Seller enter into any settlement regarding such claims without Buyer’s or Indemnitees ’prior written consent.
During the term of this Agreement and for a period of ten (10)years thereafter, Seller will, at its own expense, maintain and carry insurance in full force and effect which includes, without limitation, commercial general liability insurance (including product liability insurance) providing combined limits of liability of no less than Five Million Dollars ($5,000,000.00), with financially sound and reputable insurers. Upon Buyer’s request, Seller will provide Buyer with certificate(s) of insurance from Seller’s insurer(s) evidencing the insurance coverage specified in these Terms. The certificate(s) of insurance must name Buyer as an additional insured on all required policies. Seller will provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller will require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
14. Compliance with Law
(a) Seller represents, warrants, and covenants that Seller is in compliance with and will at all times comply with: (i) all laws and regulations applicable to the Goods and otherwise in connection with the activities contemplated or provided under this Agreement, including without limitation any national, international, federal, state, provincial or local law, treaty, convention, protocol, common law, regulation, directive, or ordinance and all lawful orders, including judicial orders, rules, and regulations issued thereunder, including without limitation those dealing with the environment, health and safety, employment, records retention, personal data protection, and the transportation or storage of hazardous materials; and (ii) standard industry practices, including without limitation the exercise of that degree of skill, diligence, prudence, and foresight, which can reasonably be expected from a competent seller who is engaged in the same type of service or manufacture under similar circumstances. Without limiting the fore going, Seller will comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.
(b) Seller will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
(c) Seller has not offered or used, and Seller will not at any time offer or use, directly or indirectly, any money, property or thing of value under or in connection with this Agreement or otherwise to influence improperly or unlawfully any decision, judgment, action, or inaction of any official, employee, or representative of any government or agency or instrumentality thereof, any government owned or partially government owned entity, or any other person or entity, in connection with or relating to the subject matter of this Agreement or otherwise. Seller represents, warrants, and covenants that no payment will be made nor will any transaction be entered into in connection with this Agreement or otherwise that is illegal, improper, or is intended to unduly or improperly influence any third party, including without limitation by means of extortion, or any kickback or bribery. If Seller breaches any term of this provision, Buyer may immediately terminate this Agreement without any liability.
(d) Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties, any retaliatory duties, or any other penalties on Goods.
(a) In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part.
(b) If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Buyer may terminate this Agreement upon written notice to Seller.
(c) If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
16. Limitation of Liability
Nothing in this Agreement will exclude or limit: (a)Seller’s liability under Sections 9, 10, 11, 12, 14 and 18; or (b) Seller’s liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
No waiver by Buyer of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege, hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18. Confidential Information
All non-public, confidential, or proprietary information of Buyer or its affiliates, including without limitation specifications, samples, patterns, designs, plans, drawings, documents, data, trade secrets, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer, any of its affiliates, or any of their respective employees, agents, or representatives to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement, shall be deemed confidential, disclosed solely for the purpose of performing this Agreement, and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller will promptly return all documents and other materials received from Buyer and its affiliates. This Section does not apply to information that: (a) was in the public domain at the time of Seller’s receipt of such information; (b)Seller can prove, by appropriate documentation, was lawfully known by Seller at the time of disclosure; or (c) Seller can prove, by appropriate documentation, was rightfully obtained by Seller on a non-confidential basis from a third party. Seller:(i) acknowledges that failure to comply with this Section 18 will cause Buyer irrevocable harm and that a remedy at law for such a failure would be an inadequate remedy for Buyer; and (ii) consents to Buyer’s obtaining from a court having jurisdiction specific performance, an injunction, restraining order, or any other equitable relief in order to enforce this Section 18. The right of Buyer to obtain such equitable relief is in addition to, and not in lieu of, any other remedy (including without limitation monetary damages) to which Buyer is entitled under applicable law.
Seller will maintain complete and accurate records relating to the provision of the Goods under this Agreement, including without limitation records of the time spent and materials used by Seller, in such form as Buyer approves. During the term of this Agreement and for a period of two (2) years thereafter. Upon Buyer's written request, Seller will allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Goods.
20. Force Majeure
Neither party will be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable(“Force Majeure Event”). Force Majeure Events include acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike or embargoes. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller will use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than ten (10) business days, Buyer may terminate this Agreement immediately by giving written notice to Seller without any liability.
Seller will not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve Seller of any of its obligations hereunder. Buyer may at any time assign, delegate, subcontract, or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent.
22. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity will be construed from this Agreement.
23. Governing Law
All matters arising out of or relating to this Agreement are governed by and will be construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction, except that the United Nations Convention on the International Sale of Goods does not apply to this Agreement or to any transactions between Buyer and Seller in connection herewith.
24. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Illinois, in each case located in Cook County, Illinois, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding.
25. Cumulative Remedies
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth in the first paragraph of these Terms or to such other address that may be designated by the receiving party in writing in accordance with this Section. All Notices must be delivered by personal delivery, internationally recognized overnight courier (with all fees pre-paid) or facsimile (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt of the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
29. Amendment and Modification
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. No change to any Purchase Order will be binding upon Buyer unless it is in writing, specifically states that it amends the Purchase Order, and is signed by an authorized representative of Buyer.