Partners In Health Standard Purchase Order Terms and Conditions -Revised: March 18, 2020
The following Standard Purchase Order Terms and Conditions (the “Agreement”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties.
In the absence of such a written agreement, duly executed by both parties, then this Agreement provides the entity identified in the header of the Purchase Order (“Seller”) with the guidelines and legal stipulations of Seller’s purchase order (“Purchase Order”) with Partners In Health (“Buyer”) for the goods and/or services that are specifically identified on the face of the Order (the “Products”).
- TERMS AND CONDITIONS: Seller accepts this Purchase Order and any amendments by signing the acceptance copy of the Order or providing a written acknowledgement and returning it to Buyer promptly. Even without such written acknowledgment, Seller's full or partial performance under this Purchase Order will constitute acceptance of this Agreement. By acceptance of this Purchase Order, Seller agrees to be bound by, and to comply with this Agreement, which include any supplements to it, and all specifications and other documents referred to in this Purchase Order. This Agreement applies to everything listed in this Purchase Order and constitute Buyer's offer to Seller, which Buyer may revoke at any time prior to Seller’s acceptance. This Purchase Order is not an acceptance by Buyer of any offer to sell, any quotation, or any proposal. Reference in this Purchase Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of this Agreement. Terms and conditions different from or in addition to this Agreement, whether contained in any acknowledgment of this Purchase Order, or with delivery of any Products under this Purchase Order, or otherwise, will not be binding on Buyer, whether or not they would materially alter this Purchase Order, and Buyer hereby rejects them.
- Prices: Seller agrees to supply the Products at the prices listed on the Purchase Order. The prices are based upon the Seller’s quote or contract pricing. If there are discrepancies, the Seller must notify the Buyer prior to issuing the order confirmation or shipping the Products. Buyer will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer. If Seller reduces its prices for such Products during the term of this Purchase Order, Seller shall correspondingly reduce the Products sold thereafter to Purchaser under this Order.
- Taxes: All applicable taxes arising out of transactions contemplated by the Purchase Order will be borne by Seller except as otherwise specified by the parties in writing. Seller recognizes that Buyer is a tax exempt entity, and Buyer will provide Seller with its exemption certificate on request. All invoices of Seller to Buyer shall exclude taxes that are excludable under Purchaser’s tax exempt status.
- Changes: No modifications or substitutions to Products specified in the Purchase Order shall be made by the Seller without the Buyer’s prior approval.
- Warranties: Seller represents and warrants that (a) all Products are free of any claim of any nature by any third person and that Seller will convey clear title to Buyer, (b) all Products that are services will be performed in a manner acceptable in the industry and in accordance with generally accepted standards, and Products sold will be of merchantable quality, free from all damage or defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the Products (whether goods or services) are provided in strict accordance with the specifications, samples, drawings, designs or other requirements approved or adopted by Buyer, (c) Seller is in compliance, and all Products are provided in compliance, with all applicable international, federal, state and local laws and regulations, and Seller has obtained all applicable permits, rights and licenses, (d) Seller is not subject to United Nations or OFAC sanctions and is not currently subject to any exclusions under the US Government’s System for Award Management, (e) Seller does not knowingly support, employ or do business with, directly or indirectly, individuals, entities or groups known by the Seller to support terrorism or to have violated OFAC sanctions, (f) Seller has not changed its name in the last five (5) years except as disclosed in writing to Buyer, (g) Seller shall not act in any fashion or take any action that will render Buyer liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Buyer in retaining or obtaining business or in procuring the Products. Buyer's inspection, test, acceptance, or use of the Products shall not affect Seller's obligations under these warranties. Seller shall replace or correct, at Buyer's option and at Seller's cost, defects of any Products not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming Products within ten (10) days from the date the Buyer notifies Seller of the defect or defects, Buyer may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such Products and charge Seller for all costs incurred by Buyer, or (ii) revoke its acceptance of the Products in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller's cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Buyer. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Buyer by acknowledgment or otherwise, in accepting or performing this Purchase Order, will be null, void, and ineffective without Buyer's written consent.
- Certificates of Analysis (COA): Seller agrees that all Products that are drugs must be shipped with accompanying COA. One COA is required per lot. If a COA is unavailable, a COC (certificate of conformity) may be supplied instead.
- Preparation of Shipments: At its own expense, the Seller must pack, mark and ship Products on a wrapped pallet. Each pallet must be identified with a label containing the total number and contents of each carton on the pallet. The Seller will package and consolidate Products prior to delivery, keeping like items together. Seller will limit the number of lots shipped per Product and will fill packaging units with a single lot number, labeled accordingly, when quantity permits. Seller will minimize number of pallets with multiple items. Sellers that do not comply with packing requirements will be charged a repacking fee by Buyer.
- Hazardous Materials: Seller is responsible for notifying Buyer of expected receipt of Products that are hazardous material (as defined by the United Nations’ Committee of Experts on the Transport of Dangerous Good and the Globally Harmonized System of Classification and Labeling of Chemicals), prior to delivery. Seller agrees that all Products that are hazardous material shall be shipped on a separate pallet from non-hazardous material and be accompanied by a Material Safety Data Sheet (MSDS). Seller is responsible for shipping Products that are hazardous material according to relevant International Air Transport Association (IATA) and International Maritime Dangerous Goods (IMDG) requirements, including labeling boxes and indicating UN Hazard Number and Class on shipping waybill.
- Temperature Requirements: Seller is responsible for notifying Buyer of any Products requiring storage outside of ambient temperature, customarily defined as 59 – 77 F/15 – 25 C, prior to shipment or delivery. Seller agrees to provide Buyer with manufacturer’s temperature requirements for all Products that require storage outside of ambient temperature. Seller agrees to package and label Products in accordance with IATA guidelines, including labeling boxes and indicating temperature range on shipping waybill.
- Delivery: Seller shall ensure that delivery is made in accordance within the time stated in Seller’s quote. The Seller must notify the Buyer of any delays as soon as possible. The Buyer reserves the right to cancel the order if delivery is not made as specified. Seller will ensure that each shipment is accompanied by a master packing slip, which will include the Buyer’s Purchase Order number and quantity of Product shipped, itemized per packaging unit. The Seller’s packing slip shall clearly state unit conversions between packaging units. Seller will send an electronic copy of the master packing slip to the Buyer.
- Product Lead Times: Seller shall arrange for the Product to be available within the lead time stated in the Seller’s quote. The Buyer must be notified of any delays as soon as possible and the Seller will undertake all available efforts to avoid or minimize delay, at no change in the price. If the Product is more than 21 days delayed, the Buyer has the right to cancel the order without any financial penalty.
- Inspection: All Products will be subject to inspection and test by Buyer at all times and places, including in any event prior to final acceptance. Final acceptance or rejection of the Products will be made as promptly as practical after delivery except as otherwise provided in this Agreement, but failure to inspect and accept or reject Products or failure to detect defects by inspection, will neither relieve Seller from responsibility for such Products as are not in accordance with this Agreement nor impose liabilities on Buyer for them. Buyer’s payment for the Products shall not constitute its acceptance of the Products. Products rejected and Products supplied in excess of quantities ordered may be returned to the Seller, at Seller’s expense. Payment, if any, made for any Products rejected hereunder shall be promptly refunded by Seller.
- Invoicing: After each delivery provided under the Purchase Order, the Seller shall send a separate invoice to the Buyer. Each invoice shall contain fees for only one Purchase Order and reference the Buyer’s Purchase Order number. Buyer’s payment of the invoice does not constitute acceptance of the Products.
- Termination: Buyer may terminate all or any part of this Purchase Order for convenience at any time by written notice to Seller. Upon such termination, Buyer’s liability will be limited to reasonable termination charges mutually agreed by Seller and Buyer, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. This Purchase Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
- LIMITATION OF LIABILITY: BUYER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS PURCHASE ORDER IS LIMITED TO THE AMOUNT PAID BY BUYER FOR THE PRODUCTS. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, BUYER SHALL NOT BE LIABLE UNDER THIS PURCHASE ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification: Seller shall indemnify and hold Buyer harmless from and against any and all loss, cost, expense, liability, or damage, including, without limitation, all reasonable attorneys' fees and court costs, arising out of or in connection with Seller’s negligence, wilful misconduct or breach of this Agreement. For the purposes of this section, Buyer shall be deemed to include its employees, agents, officers, and members of its governing boards.
- Governing Law: The Buyer’s Purchase Order shall be interpreted in accordance with, and shall be governed by the laws of the Commonwealth of Massachusetts, USA (excluding the conflict of laws rules thereof). The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
- Dispute Resolution:
For Seller located in China: The Parties shall engage in good faith consultation to resolve any dispute controversy or claim (a “Dispute”) arising out of or in connection with this Agreement. Such consultation will begin immediately after one Party has delivered to the other Party a request for consultation. If the dispute cannot be resolved within thirty (30) calendar days following the date on which the request for consultation is delivered, the Parties shall submit such Dispute to the Hong Kong International Arbitration Center (“HKIAC”) for arbitration in Hong Kong. There shall be three (3) arbitrators, one (1) of whom shall be appointed by the Seller, one (1) of whom shall be appointed by the Buyer, and the third arbitrator, who shall be the presiding arbitrator, shall be appointed by HKIAC. Each arbitrator shall be fluent in English. The arbitration proceedings shall take place in Hong Kong and be conducted in English. The arbitration tribunal shall apply the arbitration rules of HKIAC in effect at the time of the arbitration. However, if such rules are in conflict with the provisions of this Section 18, including the provisions concerning the appointment of arbitrators, the provisions of this section shall prevail. The arbitral award shall be final and binding upon the Parties. The Arbitrator shall decide in its award the allocation of costs, including the arbitration fees, the legal expense incurred, the expense of translators and translations required in connection with the arbitration (if any) and all other costs and expenses to which the Dispute may give rise. Notwithstanding any Dispute or arbitration, the Parties shall continue to comply with their respective undisputed obligations under this Agreement. The Parties shall maintain strict confidentiality with respect to all aspects of the arbitration and shall not disclose the fact, conduct or outcome of the arbitration to any non-parties, except to the extent required by applicable law or to the extent necessary to recognize, confirm or enforce the final award in the arbitration, without the prior written consent of parties to the arbitration.
For Seller located in Rest of World:
Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. Any dispute not so resolved will be submitted for binding arbitration, at the written request of either party, before a single arbitrator under the JAMS Streamlined Arbitration Rules and Procedures in the Commonwealth of Massachusetts or at another location as mutually agreed. Selection of the arbitrator will be by mutual agreement of the parties or, failing agreement within twenty (20) days, by JAMS pursuant to its then-current rules. The amount and responsibility for payment of arbitration costs will be one of the issues decided by the arbitrator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. The arbitrator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. The provisions of this section, and any award issued by an arbitrator, may be enforced by either party in any court of competent jurisdiction. Arbitration is the exclusive remedy for disputes arising under this Agreement; the parties hereby waive their rights to bring a lawsuit to resolve a dispute arising under this Agreement.
- Independent Contractor: The Seller is, and shall remain for so long as any of its obligations survive this Agreement, an independent contractor. Nothing in this Agreement shall be deemed or construed as creating an employment relationship between the parties hereto.
- Use of Names: Seller will not use Buyer's name or logo in publicity, advertising, or similar activity, except with Buyer's prior written consent.
- Assignment: Assignment of this Purchase Order or any interest in it or any payment due or to become due under it, without the written consent of the Buyer, will be void. An assignment will be deemed to include not only a transfer of this Purchase Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
- Remedies: Each of the rights and remedies reserved to Buyer in this Purchase Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Buyer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Buyer shall be deemed to be a waiver of any such right or remedy.
- Waiver; Modification: The failure of Buyer to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Buyer thereafter to enforce each and every such provision. This Purchase Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
- Severability: If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
- Notices: All notices shall be in writing sent to the addresses specified on the Purchase Order.
- Entire Agreement: This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes all prior communications, representations, letters of intent, memoranda of understanding, agreements and understandings, whether written or oral, relating to the subject matter hereof.
Revised: March 18, 2020