Purchase Order Terms and Conditions
GENERAL
This purchase order is an offer by Kestra Medical Technologies, Inc., (“Kestra”) for the purchase of the goods or services specified on the face of this purchase order (the “Goods and/or Services”) from the party identified as supplier on the face of this purchase order (“Supplier”) in accordance with and subject to these terms and conditions (together with the terms and conditions on the face of the purchase order, the “Purchase Order”). This Purchase Order contains the complete and final agreement between Kestra and the Supplier regarding Goods and/or Services and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Purchase Order. Except as otherwise explicitly agreed by Kestra in writing, within two business days of the issuance of this Purchase Order, Supplier shall provide written confirmation/acknowledgement of this Purchase Order, otherwise, Supplier is deemed to have received, read and accepted all terms in this Purchase Order. Kestra may withdraw the Purchase Order at any time before it is accepted by Supplier. Kestra is not obligated to any minimum purchase or future purchase obligations under this Purchase Order.
CONFLICTING TERMS
All conflicting, different or additional Supplier terms are expressly rejected and acceptance of this offer is expressly limited to the terms stated in this Purchase Order. No course of dealing or usage of trade or actual course of performance shall be relevant to explain or supplement any terms used herein. Any shipment or delivery of Goods (including licenses for software, copyrighted items, etc.) or performance of Services shall also constitute acceptance of the terms and conditions of this Purchase Order regardless of any purported substitution or addition of terms and conditions by Supplier. Acceptance by Kestra of any shipment from Supplier shall not constitute acceptance of any such different or additional terms and conditions.
INDEPENDENT AGREEMENT
The terms and conditions set forth herein shall not apply in any respect if a separate and complete agreement between Kestra and Supplier regarding the Goods and/or Services is in effect.
QUANTITY
The specific quantity ordered must be delivered in full and not be changed without Kestra’s prior written consent. Any different quantity without such consent is subject to Kestra’s rejection and return at Supplier’s expense.
PRICE
The price for each Good and/or Service shall be the price as shown for such Good and/or Service indicated on the face of this Purchase Order. Any change in price without Kestra’s prior written consent is expressly rejected. No additional charges of any kind, including charges for boxing, packing, cartage or other extras will be allowed except with Kestra’s prior written consent. Except for state sales and use taxes, the price for the Goods and/or Services includes all taxes, fees and charges that may be imposed with respect to the purchase of the Goods and/or Services.
PAYMENT
Except as otherwise specified in this Purchase Order, payment terms shall be 2%, fifteen (15) days, net sixty (60) after the date of invoice or the date of delivery, whichever is longer. Kestra may pay invoices electronically via a means that is in reasonably common commercial use or such other means as designated by Kestra. Following request by Kestra, Supplier shall submit invoices electronically via a means specified by Kestra.
SHIPPING TERMS
Time is of the essence in the performance of this Purchase Order, and any delay in delivery is a material breach. Unless otherwise specified in an applicable order, delivery of Goods within the United States shall be Ex-Works Supplier’s facility; delivery of Goods from outside the United States shall be DDP Destination. Shipment of Goods will be accomplished pursuant to Kestra or Kestra’s Transport and Routing Guide. If Supplier fails to comply with Kestra or Kestra’s Transport and Routing Guide, shipment shall be DDP Destination. Supplier shall provide Kestra or Kestra electronic notice of each shipment on the shipment date.
INSPECTION AND REJECTION OF NONCONFORMING GOODS
Kestra is entitled to inspect the Goods and/or Services (including the performance of tests) before or after receipt and reject them for failure to conform to this Purchase Order, regardless of whether any payment has been made by Kestra, whether the nonconformity substantially impairs the value of the Goods and/or Services, or whether the nonconformity may be cured by Supplier. Kestra has the right upon reasonable notice to enter Supplier’s facilities to inspect the production of Goods and/or performance of Services, without precluding subsequent inspection and rejection of Goods and/or Services. If the inspection discloses, in Kestra’s good faith opinion, that Supplier’s ability to meet the requirements of this Purchase Order is questionable, Kestra may treat such circumstance as a material breach and terminate this Purchase Order without liability to Supplier. If Goods tendered pursuant to this Purchase Order are nonconforming, Kestra may return all of the Goods to Supplier, at Supplier’s expenses, for first priority repair, replacement or a refund at the election of Kestra.
INSURANCE
Any insurance purchased by Supplier to cover loss or damage to the Goods in transit to Kestra shall be solely at Supplier’s expense. If Supplier is performing Services, Supplier shall maintain an adequate and reasonable amount of liability and other insurance covering the risks and any claims associated with such Services, and upon request name Kestra as an additional insured and provide evidence of the same to Kestra upon request.
CHANGES
Kestra is entitled, at any time, to change the specifications for the Goods and/or Services or any other matters relating to performance of this Purchase Order; provided that the price and/or delivery schedule may be equitably adjusted with Kestra’s prior written consent to reflect additional costs and/or schedule adjustments required by the changes. Any claim for adjustment is waived unless made in writing within thirty (30) days after receipt of Kestra’s written change order. Supplier shall not make any change or deviation to Goods and/or Services covered specifically by this Purchase Order, except with Kestra’s prior written consent. Upon approval by Kestra, Inc. of the initial design, any process changes, design changes or deviations considered by Supplier must be submitted to Kestra, Inc. in writing for review through Supplier Initiated Change Request (SIR). If changes are submitted for approval, the information submitted must include a complete description of the change and the effect the change will have on all characteristics of the product. Upon request, Supplier shall submit samples of the proposed product for evaluation and approval by Kestra.
WARRANTIES AND REPRESENTATIONS
Supplier warrants that the Goods and/or Services will be in exact accordance with the specifications, drawings and other instructions attached to this Purchase Order or to which Kestra and Supplier subsequently agree in writing. In the case where the specifications, drawings and other instructions are not attached to the Purchase Order, it is Supplier’s responsibility to acquire the required documents, with current revisions, from the Kestra representative that issued the Purchase Order. Supplier warrants that the Goods and/or Services will be free from defects in materials, workmanship and design (except to the extent such defective design is attributable to Kestra). This warranty shall not be deemed waived by Kestra’s acceptance of or payment for the Goods and/or Services. Supplier warrants and represents that the prices on the Goods and/or Services are not less favorable than the prices Supplier offers to other similarly situated customers under similar terms and conditions. Supplier warrants that materials incorporated into the product comply with the laws regarding slavery and human trafficking of the country or countries in which Supplier is doing business.
REMEDIES
In the event that Kestra rejects any Goods or Services in accordance with this Agreement and has notified Supplier, Supplier shall replace such Goods or Services free of charge and Supplier shall cover expenses (including freight and customs clearance, if any) incurred by Kestra in connection with (a) shipment of replacement Goods or Services to the same location and (b) shipment of the nonconforming Goods back to Supplier (if so requested by Supplier). In the event of a rejection of nonconforming Goods, Supplier shall ship replacement Goods as soon as practical, but in any event within thirty (30) days of its receipt of a proper rejection notice from Kestra. Failure to meet such deadline shall result in a 5% decrease in price associated with the replacement Goods. Supplier shall also reimburse Kestra up to an amount equal to scrap and/or rework costs as a result of using the nonconforming Goods in production.
COMPLIANCE WITH LAWS
Supplier represents and warrants that the Goods and/or Services were not manufactured or performed, and are not being sold or priced, in violation of any federal, state, or local law, executive order or administrative ruling. Without limiting the generality of the foregoing, Supplier represents and warrants that it complies with the following provisions of federal law which are hereby incorporated by reference into this Purchase Order: (1) the Federal Food, Drug and Cosmetic Act, as amended, and all applicable regulations and Executive Orders issued thereunder; (2) the Civil Rights Act of 1964, as amended, and all applicable regulations and Executive Orders issued thereunder; (3) the Fair Labor Standards Act, as amended, and all applicable regulations and Executive Orders issued thereunder; (4) FAR 52.222- 26 and 41 C.F.R. 60-1.4, relating to Equal Opportunity; (5) FAR 52.222-35 and 41 C.F.R. 60-250.5, relating to Affirmative Action for Disabled Veterans and Vietnam Veterans; (6) FAR 52.222-36 and 41 C.F.R. 60-741.5, relating to Workers with Disabilities; (7) FAR 52.222-41, relating to the Service Contract Act, as amended; (8) FAR 52.222-50, relating to Combatting Trafficking in Persons; and (9) the Foreign Corrupt Practices Act, as amended, and all applicable regulations and Executive Orders issued thereunder. Supplier represents and warrants that neither Supplier nor any Supplier personnel who will perform services under this Agreement, is included in or listed: (i) on the List of Excluded Individuals/Entities maintained by the HHS Office of Inspector General pursuant to 42 U.S.C. Sections 1320a-7, 13955ccc, 1320c-5 and regulations promulgated thereunder, which, as of the Effective Date, can be searched at http://exclusions.oig.hhs.gov (“OIG List”); (ii) on the Excluded Parties List System maintained by the United States General Services Administration which, as of the Effective Date, can be searched at https://www.epls.gov (“GSA List”); or (iii) as a Specially Designated National or Blocked Person on the U.S Treasury’s Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons which, as of the Effective Date, is located at http://www.ustreas.gov/offices/enforcement/ofac/sdn (“SDN List”). Supplier will promptly inform Kestra if it or Personnel providing Services should come to be included on the OIG List, the GSA List or SDN List. Supplier represents and warrants that it undertakes periodic self-audits and audits of any Supplier subcontractor involved in the provision of Products hereunder to ensure compliance with the foregoing.
ACCESS TO BOOKS AND RECORDS
Pursuant to 42 U.S.C. 1395x(1)(I)and 42 C.F.R.§ 420.302, if the value or cost of Goods and/or Services rendered to Kestra by Supplier or by an organization related to Supplier is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Supplier and Kestra agree that until the expiration of four (4) years after the furnishing of such Goods and/or Services, Supplier and Kestra shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the "Secretary"), the Secretary's duly authorized representative, the Comptroller General, or the Comptroller General's duly authorized representative, such books, documents and records as may be necessary to certify the nature and extent of the costs of such Goods and/or Services.
INTELLECTUAL PROPERTY PROTECTION AND RIGHTS
Supplier warrants that the Goods (including but not limited to software) do not infringe upon any third party’s intellectual property, including patents, copyrights, trademarks or trade secrets, and that Supplier has all necessary rights to sell or license the Goods.
OWNERSHIP AND USE
All ideas, inventions, copyrightable subject matter (including computer or other electronic data files, drawings and other materials), and other items prepared by Supplier or arising specifically in connection with this Purchase Order (including tooling), and all items furnished by Kestra, shall be the property of Kestra and no reproductions or property interest shall be retained by Supplier. To the extent allowed by law, copyrightable subject matter created by Supplier shall be deemed “work made for hire.” In all cases, Supplier agrees to assign and hereby assigns its rights in all such ideas, inventions, copyrightable subject matter and items to Kestra. Such items shall only be used for the benefit of Kestra and shall not be disclosed to any other party. Such property while in Supplier’s custody shall be at Supplier’s risk and shall be returned to Kestra in the same condition as received, ordinary wear and tear accepted.
INDEMNIFICATION ON INTELLECTUAL PROPERTY CLAIMS
Supplier shall defend, indemnify and hold harmless Kestra and its subsidiaries or affiliates, and their trustees, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Kestra’s use or possession of the Goods and/or Services pursuant to and for the purposes set forth in this Agreement infringes or violates the copyright, trade secret, trademark, United States patent, or other proprietary right of any third party; unless infringement occurs solely as a result of the incorporation of specifications provided by Kestra. No settlement that prevents Kestra from continuing to use the Goods and/or Services, as provided herein, shall be made without Kestra’s prior written consent. Kestra shall, at its own cost and expense, has the right to participate in the defense of any suit or proceeding through counsel of its own choosing. In the event the Goods and/or Services, or any part thereof, are held to constitute such an infringement and its use enjoined, then Supplier shall, at Kestra’s option, and at Supplier’s expense, either procure for Kestra the right to continue using the Goods and/or Services, replace or modify the Goods and/or Services with a non-infringing version, or remove the Goods and/or Services and refund the purchase price.
GENERAL INDEMNIFICATION
Supplier shall defend, indemnify and hold Kestra, and its subsidiaries or affiliates, and their trustees, officers, employees and agents, harmless from any and all loss, lawsuit, liability, damage, cost and expense (including legal fees) which may arise out of or result from: (i) claims by third persons against Kestra that the Goods and/or Services provided hereunder caused damage to property or bodily injury (including death); (ii) the willful misconduct or any acts or omissions of Supplier, its agents or employees in connection with this Agreement; (iii) any defect in the Goods and/or Services, or (iv) any breach or default in the performance of Supplier's obligations.
CONFIDENTIALITY
Supplier may gain information about Kestra's operations, plans, equipment, finances, products, processes and customers ("Kestra Information"). Supplier shall cause all Kestra Information to be kept confidential and not to be disclosed to others except with Kestra's prior written consent. Nothing in this paragraph shall prevent Supplier from disclosing information which it can show: (a) is published and in the public domain other than through acts or omissions of Supplier, its employees or agents; (b) was rightfully made known to Supplier by third parties (other than those acting directly or indirectly for Kestra), without restriction on disclosure; or (c) was known at the time of entering into this Contract, and was not acquired from Kestra. Supplier shall deliver to Kestra, upon request, all drawings, specifications, memoranda, notes, materials and all copies containing Kestra Information.
LICENSE TO SOFTWARE
Supplier grants to Kestra a limited, nonexclusive, royalty-free license and/or sublicense to use any software and its accompanying documentation delivered with or embedded in the Goods and/or Services. Any charge for the license is included in the purchase price set forth on the Purchase Order.
TERMINATION
Kestra may terminate all or any part of this Purchase Order without cause by providing Supplier at least ten (10) calendar days’ notice in advance of the effective termination date. In the event of termination by Kestra without cause, Kestra’s liability shall be limited to the price of, and Supplier shall deliver to Kestra, Goods and/or Services scheduled for delivery and/or performance during the period ending on the effective termination date. Kestra shall not be liable to Supplier for any damages, costs or charges in respect of such termination without cause. Supplier hereby waives any right that it may have to specific performance under this Purchase Order.
Kestra may immediately terminate upon notice all or any part of this Purchase Order without obligation to Supplier upon the occurrence of any of the following causes: (a) a material breach of any term of this Purchase Order by Supplier, including, but not limited to, untimely shipment of Goods, or shipments of Goods which do not conform to this Purchase Order, (b) the filing by or against Supplier of any insolvency of bankruptcy proceedings or proceedings for reorganization, receivership or dissolution; or (c) any material adverse change in the condition of Supplier, which Kestra in good faith believes to impair the likelihood that Kestra will receive timely and full performance of this Purchase Order. All of Supplier’s confidentiality and indemnification obligations survive termination.
RELATIONSHIP OF PARTIES
Nothing contained in this Agreement creates a joint venture, partnership, agency or similar endeavor between the parties. Each party is acting solely as an independent contractor and neither party has any power or authority to directly or indirectly bind or act on behalf of the other. It is understood that except as expressly provided in this Agreement, nothing prevents Kestra from developing products similar to the Goods or from sourcing from another vendor. Agents, employees, or other persons selected or directed by Supplier to perform this Purchase Order shall not be agents or employees of Kestra, whether or not a separate charge is made for their services.
LIMITATIONS
Any actions or claims by Supplier under this Purchase Order for breach, nonperformance or otherwise shall be commenced within twelve (12) months after the occurrence giving rise to the action or claim.
WAIVER
Kestra’s rights hereunder may not be waived except by written instrument signed by an authorized agent. Kestra’s waiver of a breach of this Purchase Order in one instance shall not be deemed a waiver with respect to any other breach.
ASSIGNMENT
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Purchase Order without the prior written consent of Kestra. Any purported assignment or delegation in violation of this provision shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
APPLICABLE LAW; JURISDICTION
The terms and conditions of this Purchase Order and the resolution of any disputes arising out of it shall be governed by and interpreted in accordance with the laws (without giving effect to conflicts of law principles) of the State of Washington. The parties agree to submit to the jurisdiction of the courts of Washington for all matters relating to this Agreement.
FORCE MAJEURE
Force Majeure means riots, war, terrorism, invasion, acts of God, fire, explosion, floods, and orders of a Governmental Authority that prevent a party’s performance under this Agreement. A party’s obligations hereunder, including any delays in deliveries, will be excused by a Force Majeure event only to the degree affected, provided that the party affected by the Force Majeure event makes reasonable efforts to avoid being so affected and promptly delivers written notice to the other party upon learning of the Force Majeure event, which notice must include a detailed description of the event and its anticipated effect on the party’s ability to perform its obligations. Upon giving notice to the other party, the affected party is excused from the performance of its obligations under this Agreement only to the extent and only for the period that its performance of such obligations is prevented by the Force Majeure event, except that this clause does not apply to a party’s obligation to perform its disaster recovery plan. During the period that the performance by a party has been suspended by reason of a Force Majeure event, the other party may suspend the performance of all or part of its obligations to the extent that such suspension is commercially reasonable.
NO THIRD-PARTY BENEFICIARIES
This Purchase Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.