Purchase order Terms and Conditions
1. Applicability. This purchase order is an offer by Globus Medical, Inc. or its listed affiliate (the “Buyer”) for the purchase of goods specified on the face of this order (the “Goods”) from the party to whom the order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the order, the “Order”). In the event of any conflict between the Terms herein and the terms and conditions of any Supplier Quality Agreement or other agreement for the purchase and supply of the Goods (“Other Agreement”) between the parties, the terms and conditions of the Other Agreement shall take precedence. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Acceptance. This Order is not binding on Buyer until Seller’s acceptance, which shall be deemed given if Seller: (a) accepts the Order in writing; or (b) does not reject the Order in writing within five (5) business days of receipt.
3. Shipping & Delivery. All Goods shall be shipped F.O.B. Buyer’s designated destination in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties. Seller shall have the risk of loss, damage and/or delay in shipment until the Goods are properly delivered to Buyer’s destination. Seller shall maintain adequate controls to ensure that packaging and shipping requirements of the Order are met and that Goods are shipped to Buyer in an acceptable condition. Goods must be separated by lot and identified by part number and lot number during shipment.
4. Product Inspection and Acceptance. Goods delivered by Seller are subject to inspection by Buyer. In the event any Good is found to be defective in materials or workmanship, Buyer shall have the right to reject such Good (“Defective Good”) within thirty (30) days after delivery and return it to Seller, at Seller’s expense, and Seller shall provide, at Buyer’s option, either a refund, a credit or a replacement within thirty (30) days after receipt of such Defective Good at no additional cost to Buyer.
5. Title. Seller warrants that title to the Goods and all parts thereof will pass to Buyer upon receipt, F.O.B. Buyer’s designated destination, unless otherwise agreed to in writing by the parties. Seller further warrants that all Goods delivered hereunder shall be free and clear of liens, claims, security interests, or other encumbrances adverse to Buyer’s interests.
6. Price. The price of the Goods is as stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs, insurance, customs duties, fees, and applicable taxes. No increase in the Price is effective without the prior written consent of Buyer.
7. Payment Terms. Unless otherwise stated on this Order or agreed to in writing by the parties, Buyer agrees to pay Seller within thirty (30) days of Seller’s completion or satisfaction of this Order.
8. Warranties. Seller warrants that the Goods shall be manufactured in accordance with the specifications provided to Buyer and shall be free from defects in material and workmanship. All of the warranties referenced or set forth in this section shall be in addition to all other warranties which may be prescribed by law. Seller acknowledges that time is of the essence for all services provided hereunder. Seller warrants that neither the Goods nor any portion thereof will in any way infringe upon any copyright, trademark, patent, trade secret or other intellectual property or proprietary rights of Seller or any other person or entity. Seller further warrants that it will not bring or cause to be brought a copyright, trademark, patent, trade secret or other intellectual property or proprietary rights infringement suit against Buyer involving Buyer’s or its customers’ making, using, offering to sell, or selling the Goods.
9. Indemnification. Seller agrees to indemnify, defend and hold Buyer and its affiliates, officers, directors, employees and agents harmless from and against any and all loss, cost, liability, damage or expense of any kind or nature whatsoever (including court costs and reasonable attorneys’ fees) in connection with any claims arising out of (i) any actual or alleged breach by Seller of any representation, warranty or covenant made by it pursuant to this Order; (ii) any actual or alleged deviation from Buyer’s specifications relating to the Goods, or from any applicable rules, laws, regulations and FDA or other governmental requirements relating to the manufacture or supply of the Goods; or (iii) any actual or alleged willful malfeasance or negligent acts or omissions of Seller.
10. Intellectual Property. “IP” is defined as all patents, patent applications, copyrights, trademarks, trade secrets including know-how, drawings, designs, formulae, specifications, disclosures, process technology, plans, models, manufacturing methods and processes, and all other technology, worldwide. Buyer shall retain ownership of all IP associated with its products and other information and materials developed and/or created by Seller at any time with regard to Buyer’s products. All right, title and interest in any work performed by Seller or written or electronic documentation prepared by Seller with respect to Buyer’s products shall be considered “work made for hire” under the copyright laws of the United States or shall be and hereby is assigned to Buyer. Buyer authorizes Seller to use such proprietary information supplied by or developed for Buyer under this Order only for the purpose of manufacturing Goods for sale to Buyer. All IP associated with Buyer’s products is confidential and shall be promptly returned upon Buyer’s request. To the extent Seller owns rights, title and interest in any Goods provided to Buyer under this Order, Seller grants to Buyer a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sublicensable license to all IP used in the creation of Goods in order for Buyer to exercise its rights in the Goods as contemplated by this Order
11. Insurance. Seller shall obtain insurance described below with an insurance carrier that has an A.M. Best rating of A- or better. Seller shall maintain commercial general liability and, if necessary, commercial umbrella insurance with combined limits of not less than $3,000,000 each occurrence, and all risk coverage equal to the replacement cost of personal property, stock, or equipment in which Buyer maintains a financial interest while in the care, custody, or control of Seller. Buyer shall be included as an additional insured of such policies, and this insurance shall apply as primary with respect to any other insurance or self-insurance programs afforded by Buyer.
12. Compliance with Law. Seller warrants that Seller and Goods sold pursuant to this Order are in compliance with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all applicable licenses, permissions, authorizations, consents and permits it needs to fulfill its obligations under the Order, including maintenance of FDA Registered Facility Status if applicable.
12.1. Equal Opportunity. Seller and any of its subcontractors used shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
12.2. Anti-Corruption Laws. Seller represents and warrants all of the following: Seller agrees to comply with the United States Foreign Corrupt Practices Act, UK Bribery Act, or any other applicable laws and regulations with respect to (a) the effectiveness of existing compliance programs and codes of conduct; (b) the origin and legitimacy of any funds paid to Seller; (c) Seller’s books, records and accounts, and those of any of its subsidiaries, joint ventures or affiliates, related to work performed for or on behalf of Buyer; (d) all disbursements made for or on behalf of Buyer; and (e) all funds received from Buyer in connection with work performed for or products provided to Buyer. Seller represents that it is not an employee, officer, or representative of any government or any agency or other instrumentality of any government. Seller covenants and agrees promptly to notify Buyer of the occurrence of any event which would render such representation and warranty incorrect or misleading. Seller agrees not to use all or any portions of any monies paid under this Order, either directly or indirectly, to make or offer a direct or indirect payment or gift to any employee, officer or representative of any government, government agency or other instrumentality under circumstances where the payment or gift would constitute an illegal payment under the laws of the United States or the local territory. Seller shall permit Buyer to conduct periodic audits of all records related to work performed for or products provided to Buyer.
12.3. Conflict Minerals. Seller represents and warrants that it is in full compliance with all conflict minerals laws and other laws regarding the sourcing of minerals, including, without limitation, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 as it may be amended from time to time and any regulations, rules, decisions or orders relating thereto (collectively, “Dodd-Frank Section 1502”).
Seller agrees that it will not use minerals that are “conflict minerals” as defined in Dodd-Frank Section 1502 in the manufacture of any product for Buyer unless those conflict minerals were sourced from a smelter that is certified through the EICC/GeSI Conflict Free Smelter Program. “Conflict minerals” means columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives tantalum, tin and tungsten and any other mineral or derivative designated as a “conflict mineral”. Seller will not use any conflict minerals in the manufacture of any products for Buyer if Seller does not know the original source of the minerals.
Seller will provide all information and make all declarations requested by Buyer to determine the sources of and amount of all minerals contained in any product manufactured by Seller for Buyer, which may include requiring Seller to complete the EICC/GeSI Conflict Minerals Reporting Template or other comparable template. Seller will also require its direct and indirect suppliers (successively until the smelter is identified) to provide the same information to Seller to enable Seller to provide the information, make all declarations and complete any reporting template requested by Buyer. Seller shall provide such further cooperation as Buyer may reasonably require in order to meet any obligations it may have under conflict minerals laws, including, without limitation, under Dodd-Frank Section 1502.
12.4. Restriction of Hazardous Substances (RoHS). All parts including but not limited to raw materials, components, subassemblies, assemblies, and labels supplied to Buyer for use in electrical and electronic equipment (EEE), or combined with other products, as part of a Buyer EEE end product, must comply with the RoHS the current EU Directive of the Eurpoean Parliament. Evidence of compliance must be provided to Buyer as shown in the following table.
|Documentation Level||When to Use|
|From Sellers||From Buyer|
|1||No additional evidence from Sellers, since data sheets for out-of-catalogue parts include RoHS compliance statement||Not Applicable||Out-of- catalogue parts whose data sheets specify RoHS compliance.|
|2||Material Certification or Certificate of Analysis (CoA) or Certificate of Conformance (CoC)||Not Applicable||Used for sheet metal, weldments, plastics or machined parts that are bought directly from suppliers per custom Buyer drawings. Parts may have inserts or other small pieces attached.|
|3||SDoC1 (e.g., IPC 1752A Level A)||Self-Certification if assembly is built in-house.||Turnkey assemblies such as PCA, Cables and box builds. If assemblies are built in-house, then BUYER will self-certify.|
|4||SDoC1 (e.g., IPC 1752A Level A), and Material Declaration (e.g., IPC 1752A Level C or Level D)||Not Applicable||Similar to Level 3, but also need an independent lab to certify compliance and provide a test report.|
1 If a supplier does not have the capability of generating a SDoC per IPC-1752A (as this relies on third party solution providers to develop tools compatible with the standard in order to generate a PDF SDoC form); then a simple declaration letter from the supplier indicating that they meet the current RoHS requirements per EU Directive will suffice.
12.5 Additional restricted substances for medical devices and packaging. Seller shall ensure that products supplied to Buyer do not contain any of the following substances:
Dimethyl fumarate (DMF)
Ozone Depleting Substances (CFCs, HCFCs, HBFCs, Carbon tetrachloride, etc. Polychlorinated Biphenyls (PCBs)
Phthalates, including but not limited to:
Di-2-ethylhexyl phthalate (DEHP)
Dibutyl phthalate (DBP)
Diisobutyl phthalate (DIBP)
Benzylbutyl phthalate (BBP)
Diisononyl phthalate (DINP)
Di-n-octyl phthalate (DNOP)
Diisodecyl phthalate (DIDP)
Polycyclic aromatic hydrocarbons (PAHs), including but not limited to:
13. Termination. Timely delivery of the Goods is of the essence. Either party may terminate this Order immediately and without prior notice, in whole or in part, at any time with or without cause, for undelivered Goods (90 calendar days past order due date) by providing written notice to the other party. Upon termination of this Order by either party, Buyer may elect to have Seller cease performance for all undelivered Goods prior to the effective date of such termination (with payment to Seller of its direct, out-of-pocket expenses incurred prior to such termination in preparing to manufacture Goods requested in the Order) or may instead elect to have Seller manufacture such Goods, in which case the manufacture, delivery and payment terms related to such Goods shall be governed by this Order. In addition to any remedies under the Order or at law or equity, Buyer may terminate this Order with immediate effect upon written notice to Seller, without any payment obligation related to undelivered Goods or Defective Goods, 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.
14. Confidential Information. All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer 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 the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
15. Assignment. Seller may not assign or delegate this Order or any of its licenses, rights or duties under this Order without prior written consent of Buyer. Any prohibited assignment is void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.
16. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. Severability. If any provision of this Order shall be determined invalid or unenforceable to any extent or in any application, the remainder of this Order shall not be affected thereby, and such provision shall be deemed modified or deleted to the minimum extent necessary to make it consistent with applicable law, unless such modification or deletion of the provision would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable. Every provision of this Order as so modified if necessary shall be enforced to the fullest extent and in the broadest application permitted by law.