TERMS AND CONDITIONS OF SALE
1. Parties. CoorsTek Medical LLC, a Delaware limited liability company, will be referred to as "Seller," and the company purchasing as indicated on the preceding pages of this document will be referred to as "Purchaser". All materials, goods, or work described on the preceding pages of this document, regardless of type, will be referred to as "Products." 2. Terms and Conditions. Seller’s acceptance of Purchaser’s order is expressly conditioned on Purchaser’s
agreement to these terms and conditions (together with the preceding page(s) referred to as “Agreement”). Any term, condition and/or provision of Purchaser’s order or any other document issued by Purchaser, which is in any way
inconsistent with these terms shall not be applicable hereto or binding upon Seller. Purchaser, by accepting any Products covered by these terms, shall conclusively be deemed to accept these terms. Seller's failure to object to terms, conditions and/or provisions in any communication by Purchaser will not be a waiver of any terms contained herein. Deviation from these terms and conditions, including additional or different terms and conditions, can only take place by written
instrument signed by one of Seller’s officers. Seller hereby rejects all terms and conditions set forth under any prime or other contract to which Purchaser is a party.
3. Price Adjustments; Payments; Set-Off. The prices stated on the preceding pages of this document do not
include any sales, use, rental, personal property or other taxes unless so stated specifically. Taxes will be added to invoice prices in those instances in which Seller is required to collect them from Purchaser; provided, however, that if Seller does not collect any taxes and is later asked by or required to pay the same to any taxing authority, Purchaser will make such payment to Seller or, if requested by Seller, directly to the taxing authority. At Seller's option, prices may be adjusted to reflect any increase in Seller’s costs, including, without limitation, resulting from state, federal or local legislation, price increases from Seller’s suppliers, or any change in the rate, charge, or classification of any carrier, as determined solely by Seller.
Purchaser may make changes to its specifications upon reasonable advance notice to Seller. If such changes result in delay or additional expense to Seller, unusable raw materials, work in progress or finished goods, or in the obsolescence of any Products or materials, Seller reserves the right to make an equitable adjustment to the price and delivery schedule.
All orders are subject to management approval and periodic review of credit and payment terms, which may be modified by Seller on reasonable notice.Unless otherwise specified by Seller, all prices are F.O.B. Seller's manufacturing facility (Seller's Facility), and payment will be net thirty (30) days from date of invoice. Invoices unpaid and past due will be subject to a service charge on the unpaid balance at an interest rate equal to the lesser of eighteen percent (18%) per annum or the maximum allowable interest rate under applicable law.
When wire or ACH remittance is required or necessary, remittance shall be made as directed on the invoice. When check remittance is required or necessary, checks should be sent to the address indicated on the invoice.
All claims for money due or to become due from Seller to any division, subsidiary or affiliate of Purchaser shall be subject to deduction or setoff by Seller by reason of any counterclaim arising out of this or any other transaction with Purchaser or any division, subsidiary or affiliate of Purchaser.
4. Delivery Dates; Title and Risk; Shipment. All delivery dates are approximate, and Seller shall not be responsible
for any damages of any kind resulting from any delay. Regardless of the manner of shipment, title to any products and risk of loss or damage shall pass to Purchaser upon tender to the carrier at Seller's Facility (i.e., when it’s on the truck, it’s yours). Unless otherwise stated on the preceding pages of this document, Purchaser may exercise its judgment in choosing the carrier and means of delivery. All freight, insurance and other shipping expenses shall be borne by Purchaser. Purchaser shall inspect shipments for freight damage at time of receipt and immediately notify carrier of any freight damage, file its claim directly with the carrier, and notify Seller of the damage. Seller is not liable for freight damage or for losses incurred by
Purchaser as the result of freight damage or delays.No deferment of shipment at Purchasers' request beyond the respective dates indicated will be made except as agreed in writing by Seller and on terms that Purchaser will indemnify, defend and hold Seller harmless against all loss and additional expense, including, but not limited to demurrage, handling, storage and insurance charges. Any such changes may incur change fees.
Seller reserves the right to over or under ship by ten percent (10%) of the ordered quantity for any given shipment, until the order is complete, and bill Purchaser for the amount actually shipped. Nothing herein shall relieve either party from fulfilling the obligations set forth herein.
5. Purchaser’s Representations. Purchaser hereby represents and warrants that the Products purchased
hereunder shall not be considered finished medical devices. Purchaser agrees it shall not use the Products as a finished medical device without Seller’s prior written approval signed by an authorized representative.
Purchaser expressly warrants that it shall not introduce the Products in clinical trials or similar testing without Seller’s prior written approval signed by an authorized representative.
6. Warranty. Seller warrants that the Products are free from defects in material and workmanship and will meet Purchaser's specifications described or referenced in the preceding pages under normal and proper use in accordance with instructions of Seller, for a period of six (6) months from the date of delivery to Purchaser. This warranty is made only to
Seller’s original customer, and does not extend to anyone to whom the Product is sold after it is purchased from Seller. This warranty does not cover damage to Products caused by abuse, misuse, accident or neglect of Purchaser or its agents or customers. If within the warranty time period Purchaser discovers a failure of the Product to conform to this warranty, it must promptly notify Seller in writing. In no event shall notification be received by Seller later than seven (7) months from the date of delivery. Within a reasonable time after notification, Seller will inspect the Product and if such failure is confirmed, Seller will, at its option, repair or replace the Product, or refund the purchase price. These remedies are Purchaser’s exclusive remedies for breach of warranty. Seller’s exercise of one of these options shall not prejudice its exercise of other options in other circumstances. Products may not be returned to Seller without first obtaining a Return Authorization Number. The return to Seller of any nonconforming Products and delivery of any corrected or replaced Products shall be at Seller’s expense unless, after inspection by Seller, Seller determines, at its discretion, that the returned Products are conforming to Purchaser’s specifications. Purchaser shall retain title to returned Products until Seller verifies the Products do not meet specifications.These exclusive remedies shall not be deemed to fail of their essential purpose as long as Seller is willing to replace the defective Product or refund its purchase price. The prices charged for Seller's Products are based upon the exclusive limited warranty stated above, and upon the following disclaimer:
Disclaimer of Warranty. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR AS STATED IN ANY LITERATURE, SALES BROCHURE OR OTHER DOCUMENT OF SELLER, IN CONNECTION WITH THE PRODUCTS SOLD, OR ON ANY PARTS OR LABOR FURNISHED DURING THE SALE, DELIVERY OR SERVICING OF THE PRODUCTS.
7. Claims; Commencement of Actions. Purchaser shall promptly inspect all Products upon delivery. No claims for
shortages will be allowed unless reported to the Seller within ten (10) days of delivery. No other claims against Seller will be allowed unless asserted in writing within sixty (60) days after delivery or, in the case of an alleged breach of warranty, within thirty (30) days after the date within the warranty period on which the defect is or should have been discovered by Purchaser.
Any action based upon breach of this Agreement or upon any other claim arising out of this sale (other than an action by Seller for any amount due to Seller by Purchaser) must be commenced within one (1) year from the date of the tender of delivery by Seller or, in the case of a cause of action based upon an alleged breach of warranty, within one (1) year from the date within the warranty period on which the defect is or should have been discovered by Purchaser. 8. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR TO ANY OTHER
THIRD PERSON OR ENTITY (I) FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF SALE, BUSINESS, PROFITS, DATA,
OPPORTUNITY OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES, ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR (II) FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER'S PRIOR WRITTEN CONSENT, EVEN THOUGH SELLER HAS BEEN NEGLIGENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER'S LIABILITY UNDER ANY CLAIM MADE BY PURCHASER EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED. 9. Contingencies. Seller shall not be liable for any default or delay in performance if caused, directly or indirectly,
by acts of God; war; force of arms; fire; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortages or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the Products; failure of any party to perform any contract with Seller relative to the production of the Products; or from any cause whatsoever beyond Seller's control, whether or not the cause is similar or dissimilar to those enumerated. Seller shall notify Purchaser of the happening of any contingency and of the contemplated effect thereof on the manufacture and delivery of the Products.
10. Loss to Purchaser's Property; Patent, Trademark, or Copyright Infringement, Etc. Seller shall not be liable for,
and shall have no duty to provide insurance against, any damage or loss to any goods or materials of Purchaser, which are used by Seller in connection with this Agreement. Where any Product is manufactured from designs, patterns, plans, drawings, specifications or other information furnished by Purchaser or developed by Seller or others in conjunction with Purchaser, Purchaser shall ensure that all such information is complete and accurate and does not infringe upon any third party rights, and Purchaser shall indemnify, defend and hold Seller and its affiliates, and each of their respective members, managers, officers, directors, employees, agents and representatives, harmless from all loss, damage, and expense arising out of any suit or claim against Seller for infringement of any patent, trademark, copyright, trade secret or other proprietary right because of Seller's manufacture of such Product or because of the use or sale of such Product by any person. Upon Seller's request, Purchaser shall appear in and assume the defense of the litigation.
11. Sellers' Specifications, Technical Data, Etc. Any specifications, drawings, plans, notes, instructions, engineering
notices, technical data or other documents disclosed and/or furnished to Purchaser by Seller shall be incorporated by reference into this document. Seller shall at all times retain title to all these documents. Purchaser shall hold these
documents in confidence and not disclose them to any party other than Seller or a party duly authorized in writing by Seller. Upon Seller's request, Purchaser shall promptly return these documents, as well as any copies, to Seller.
12. Intellectual Property. Any invention or intellectual property first made or conceived by Seller in the performance of this Agreement or which is derived from or based on the use of information supplied by Purchaser not otherwise subject to a confidentiality agreement between the parties, including, without limitation, any derivative works developed and/or discovered by Seller, shall be the property of Seller and Purchaser shall execute such documents necessary to perfect Seller’s title thereto. Purchaser agrees that it shall not obtain any grant, option, title, license or other right to any patent, trade secrets or other intellectual property rights or other proprietary rights now or hereafter held by Seller. Purchaser further agrees it shall not decipher, decompile, disassemble or reverse engineer any of the Products sold hereunder.
13. Insurance. Purchaser shall, at its expense, procure and maintain insurance on all of its operations, including
the policies listed below: a) Worker’s Compensation Insurance as required by applicable state statutes; b) Employers’ Liability Insurance with limits not less than $1,000,000 per occurrence; c) $10,000,000 per occurrence Commercial General Liability Insurance and/or Medical Products Liability Insurance, including coverage for property damage and personal injury; d) Comprehensive Automobile Liability Insurance with limits not less than $1,000,000; and e) Commercial Property Insurance that shall cover the replacement cost of the property insured. All insurance policies shall contain language waiving all subrogation rights against Seller. If Purchaser is unable to obtain general liability and/or products liability policies on an occurrence basis and/or Purchaser ceases manufacture of the Product(s), then Purchaser shall, for the life of the Product(s), maintain in effect the then current general liability and/or products liability policies with respect to claims arising from the Product(s). If such insurance coverage cannot be maintained, Purchaser shall obtain and maintain the most advantageous policies of general liability and/or products liability obtainable. Purchaser shall provide to Seller Certificates of Insurance upon request and shall name Seller as an additional insured. Neither the failure of Purchaser to comply with any or all of the insurance provisions of this Agreement, nor the failure to secure endorsements on the policies as may be necessary to carry out the terms and provisions of this Agreement shall be construed to limit or relieve Purchaser from any of its obligations hereunder. Purchaser shall defend, indemnify and hold Seller harmless in the event it fails to obtain and maintain the levels of insurance required herein.
14. Tooling. Any tooling Seller requires to perform its obligations under this Agreement shall remain the property of and in the custody of Seller and Purchaser shall have no ownership rights therein unless otherwise agreed to in writing signed by an authorized representative of Seller.
15. Subcontracting. Seller expressly reserves the right to subcontract all or part of this Agreement without the
consent of Purchaser.
16. Purchaser's Obligation; Rights of Seller. To secure payment of all sums due or otherwise, Seller shall retain a
security interest in, and lien upon, the Products delivered and this contract shall be deemed a Security Agreement under the Uniform Commercial Code. Purchaser authorizes Seller as its attorney to execute and file on Purchaser's behalf all
documents Seller deems necessary to perfect its security interest. If Seller shall at any time doubt Purchaser's financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming within five (5) days after the date of Seller's demand, Seller may, at its option, (i) continue to defer further shipments under this order and/or any other order from Purchaser which has been accepted by Seller until adequate assurance is received, or (ii) cancel this order and/or any other orders from Purchaser which have been accepted by Seller and recover damages. If Purchaser fails in any way to fulfill the terms and conditions of this Agreement, Seller may defer further shipments until such default is corrected or cancel this order and recover damages. Seller shall have a security interest in, and lien upon, any tooling, molds or other property of Purchaser in Seller's possession as security for the payment of any amounts owed to Seller by Purchaser.
17. Court Action. In the event Seller institutes a legal proceeding against Purchaser to collect any monies due
under the terms of this transaction, or if Seller successfully defends any lawsuit instituted by Purchaser, whether based on contract, tort or any other legal theory of recovery, Seller shall be entitled to recover its costs and expenses, including without limitation, reasonable attorney’s fees, collection costs and other expenses incurred by Seller in connection therewith, from Purchaser.
18. Liability or Responsibility. Seller assumes no liability or responsibility for any acts, misuse of product,
advertising, violations of any local, state or federal regulations or laws violated by the Purchaser. Purchaser assumes all responsibility for its acts and is responsible for researching local, state or federal regulations relating to the sale or use of Seller’s Products.
19. Improper use and Indemnity. Purchaser shall indemnify, defend, and hold Seller and its affiliates, and each of their respective members, managers, officers, directors, employees, agents and representatives, harmless from any claim, liability, damages, lawsuits, and costs (including attorney’s fees and costs), whether for personal injury, property damage or other, brought by or incurred by Purchaser, Purchaser’s employees, or any other person, arising out of (i) improper
selection, improper application or other (mis)use of Products purchased by Purchaser from Seller, (ii) the design,
manufacture, integration or usage of a Product which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Purchaser’s failure to comply with all applicable foreign, U.S. federal, state or local laws, ordinances, rules, orders and regulations, including without limitation U.S. export control laws and any regulations and/or orders thereof or failure to provide Seller adequate information related thereto, (iv) the acts or omissions of Purchaser, its agents and employees and others under its direction or control except to the extent such liabilities are caused by or are the result of the gross negligence or willful misconduct of Seller, and (v) any other breach of Purchaser’s obligations hereunder.
20. Cancellations. Orders shall not be subject to cancellation or rescheduling by Purchaser except with Seller's
prior written consent and upon terms that will indemnify, defend and hold Seller harmless against all direct, incidental and consequential loss or damages. Any changes may incur change fees.
21. Termination. Seller shall have the right to terminate this Agreement upon Purchaser’s material breach of any
terms and conditions stated herein upon ten (10) days prior written notice, if upon expiration of such ten (10) day period Purchaser has not cured its breach. In the event that Seller finds that Purchaser has breached any other order or contract with Seller, Seller may terminate this Agreement, in whole or in part, provided, however, that Purchaser remains liable under this Agreement in the event of such termination. Seller has the right to terminate this Agreement, after giving Purchaser three (3) days written notice of termination, in the event Purchaser makes, or it reasonably appears it shall make, an assignment for the benefit of creditors, is subject to any voluntary or involuntary provincial or federal receivership, insolvency or bankruptcy proceedings, becomes unable, or admits in writing its inability, to meet its obligations as they mature, fails to give adequate assurances of its ability to perform, or is dissolved or liquidated.
Without prejudice to any other remedy for breach of this Agreement, upon termination of this Agreement, Purchaser shall not be released from the payment of any sum then owed to Seller, which sum shall become immediately due and payable.
Upon termination Purchaser shall pay to Seller the price for all Products that have been completed in accordance with this Agreement not previously paid for, work in progress and raw materials, unless Seller, in its absolute discretion, can sell or otherwise use such raw materials.
22. Limitation on Assignment. Seller reserves the right to assign any of its rights or obligations hereunder.
Purchaser may not assign its rights or obligations under this Agreement without the prior written consent of Seller, which Seller may grant, withhold or condition in its sole discretion. Any purported assignment of rights or obligations without Seller’s prior written consent shall be void.
23. Export. If the Products are to be exported, this order, and acceptance thereof, is subject to Purchaser's ability
to obtain export licenses and other necessary papers within a reasonable period. Purchaser is responsible for obtaining any necessary U.S. government authorization required to ensure compliance with U.S. law.Purchaser will furnish all Consular and Custom declarations and will accept and bear all responsibility or penalties related to any errors and omissions. Purchaser warrants that any export or use of Products shall comply with all applicable foreign, federal, state, or local laws, rules, regulations, ordinances, and executive orders, including without limitation U.S. export control laws and any regulations and/or orders thereof and that Purchaser shall not export, re-export or otherwise transfer, directly or indirectly, the Products or any goods or items which incorporate the Products if the export, re-export or transfer would violate United States export laws.
24. Equal Opportunity Clause. This clause applies only in the event that the Products are to be used in whole or in
part for the performance of government contracts and where dollar value of said Products exceeds, or may in any one year exceed $10,000:
“The equal employment opportunity clauses in Executive Order 11246 and VEVRAA, as well as the equal employment opportunity provisions contained in 41 C.F.R. §§ 60-1.4(a), 60-741.5(a), and 60-250.4, are hereby incorporated to the extent applicable.”
25. Other Rights or Remedies. Any rights or remedies granted to Seller in this Agreement shall be in addition to,
and not in lieu of, any other rights or remedies at law or in equity.
26. Independent Contractors. The relationship of the parties established under this Agreement is that of
independent contractors and neither party is a partner, employee, agent or joint venture of or with the other.
27. Purchaser Supplied Items. From time to time Purchaser may supply Seller with items to incorporate into
Products sold under this Agreement. Seller shall use reasonable measures to protect and preserve items provided by Purchaser and will only be liable for replacement of such items if lost, destroyed or rendered useless due to Seller’s gross negligence. Unless otherwise agreed to in a writing signed by authorized representatives of the parties, any items of personal property supplied by Purchaser to Seller related to this Agreement will be returned to Purchaser upon expiration of this Agreement, as received less normal wear and tear. Purchaser warrants that any items provided hereunder will comply with all applicable federal, state and local laws and regulations. Purchaser further warrants that supplied components meet all performance, specification and inspection criteria.
28. Confidentiality. Purchaser agrees that it will not disclose the contents of this Agreement to any third party
without the prior written consent of Seller.
29. Compliance with Laws. The parties represent and warrant that each shall comply with all applicable standards,
provisions, and stipulations of all pertinent foreign, federal, state, and local laws, rules, regulations, ordinances, and executive orders. In addition, each party shall, at all times, act in a lawful manner and shall not use monies associated with this Agreement to bribe government officials.
Purchaser further represents and warrants that it has, currently is and for the duration of this Agreement will, operate its business in compliance with all applicable foreign, federal, state and local laws, rules, regulations, ordinances,
and executive orders, including, but not limited to, applicable requirements under the United States Food, Drug, and Cosmetic Act of 1938, as amended 21 U.S.C. 321, et seq; the Medical Device Amendments of 1976, Pub. L. No. 94-295; the Safe Medical Devices Act of 1990 Pub. L. No. 101-629; the Medical Device Amendments of 1992, Pub. L No. 102-300; and the Food and Drug Administration Modernization Act of 1997, Pub. L. No. 105-115, all as amended. Purchaser shall indemnify and hold harmless Seller and its affiliates, and each of their respective members, managers, officers, directors, employees, agents and representatives from and against all liabilities, including but not limited to attorneys’ fees and costs incurred by Seller with respect thereto, that may be sustained by reason of Purchaser’s failure to comply with the
aforementioned laws, rules, regulations, ordinances, executive orders or codes.
Purchaser represents that it is knowledgeable of the Biomaterials Assurance Act of 1998 (21 U.S. §1601-1606). Purchaser represents and agrees that Seller, in providing Products pursuant to this Agreement, is acting solely in the capacity of a “biomaterials’ supplier” as defined in the BAA.
Purchaser represents and warrants that it will not take any action nor instruct nor request Seller to take any action that would jeopardize Seller’s status as a “biomaterials’ supplier.
30. Entire Agreement. Except as specified in Section 10, this Agreement contains the entire agreement between
the Purchaser and Seller and constitutes the final, complete and exclusive expression of the terms of the agreement. All prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter are herein merged. This Agreement may be modified only by written agreement executed by authorized representatives of the parties.
31. Survival. The provisions of this Agreement that, by their sense and context, are intended to survive
performance by either or both parties shall also survive the completion, expiration, termination or cancellation of this Agreement or any order(s).
32. Waiver and Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver
of any prior, concurrent or subsequent breach of the same or any other provision. In the event that any provision hereof shall violate any applicable statute, ordinance, or rule of law, that provision shall be ineffective to the extent of its violation without invalidating any other provision.
32. Governing Law, Jurisdiction and Venue. This Agreement and the sale and delivery of all Products hereunder
shall be deemed to have taken place in and shall be governed and construed in accordance with the laws of the State of Texas, as applicable to contracts executed and wholly performed therein and without regard to its conflicts of laws principles. If an arbitrator or court determines that terms and conditions in addition to those contained in this Agreement should be included in interpreting the agreement between the parties, then notwithstanding any contrary Texas law, the parties agree that any different terms and conditions shall be interpreted under Article 2 of the Uniform Commercial Code, section 2-207(2). The parties elect not to be bound by the United Nations Convention on Contracts for the International Sale of Goods. Purchaser irrevocably agrees and consents to the exclusive jurisdiction and venue of the federal and state courts sitting in Tarrant or Dallas County, Texas with respect to any dispute, controversy or claim arising out of or relating to this Agreement.
