PURCHASE ORDER TERMS AND CONDITIONS
The terms and conditions set forth herein (the “Terms and Conditions”) shall govern the purchase order (including any attachments provided in connection therewith, the “PO”) that has been transmitted (via facsimile, email or other means) to you (“Seller”) by Bridges Consumer Healthcare LLC. (“Buyer”). Notwithstanding any prior dealings between Buyer and Seller, the PO is expressly made conditional on, and Buyer expressly limits Seller’s provision of any goods or services set forth in the PO to the Terms and Conditions.
By accepting the PO and/or starting performance, shipping any goods or furnishing any services (or providing any deliverable arising therefrom) in connection with the PO, Seller acknowledges that Seller has read, understands, and agrees to be bound by the Terms and Conditions. If Seller objects to any of such Terms and Conditions, Seller shall (a) notify Buyer in writing within three days after its receipt of the PO and (b) withhold acceptance of the PO and not start any performance, ship any goods or furnish any services (or provide any deliverable arising therefrom) in connection with the PO until/unless such objection is settled in writing signed by Buyer and Seller.
The Terms and Conditions may hereafter be revised, from time to time, by Buyer. Revised Terms and Conditions will be posted on this website (the “Site”) and, if applicable, will be immediately effective for POs issued thereafter. Seller should read the Terms and Conditions applicable to each subsequently issued PO that Seller receives because by accepting such PO and/or starting performance, shipping any goods or furnishing any services (or providing any deliverable arising therefrom) after a revised version of the Terms and Conditions on the Site has been posted, Seller will be deemed to have accepted the revised version.
The term “goods” refers to all materials, supplies, equipment, parts, accessories, ingredients and other items to be sold to Buyer hereunder, and unless the context otherwise requires, shall also include installation and other services related to the goods which Seller may agree to provide. The term “services” refers to all services of any nature whatsoever ordered or required by Buyer hereunder.
1. Acceptance. The PO expressly limits acceptance to the Terms and Conditions set forth herein. No terms stated by Seller in accepting or acknowledging the PO shall be binding upon Buyer if inconsistent with or in addition to the Terms and Conditions, except to the extent separately and specifically agreed to in writing by the Buyer. Buyer’s failure to object to provisions contained in Seller’s documents shall not be deemed a waiver of the Terms and Conditions.
2. Cancellation. If delivery is not made pursuant to the Terms and Conditions and/or in accordance with Buyer’s instructions and specifications set forth in the PO or otherwise provided to Seller by Buyer, Buyer shall have the right to cancel the PO or any portion thereof.
3. Delivery and Acceptance.
(a) Time is of the essence.
(b) Seller shall deliver the goods in the quantities and on the date(s) specified in the PO.
(c) All goods furnished must meet Buyer’s established quality standards for the specifications attached to the PO or sent separately by Buyer. Goods shall be packed, labeled and shipped in accordance with Buyer’s specifications. Goods will be subject to inspection by the Buyer and acceptance or rejection at any time after receipt, and delivery shall not be deemed complete until such goods have actually been received and accepted by Buyer, and the risk of loss on the goods shall be borne by Seller until such delivery and acceptance. If rejected, goods will be held for disposition at Seller’s risk and expense, which includes returned freight unless otherwise specified. Buyer’s decision to accept or reject shall be final.
(d) Unless otherwise specified by Buyer in writing, goods which are to be shipped shall be shipped F.O.B. destination. An itemized packing slip shall accompany each shipment and the unit containing the said slip shall be marked “Packing Slip Enclosed”. A reasonable monetary penalty may be assessed against Seller in Buyer’s discretion if any shipment lacks a packing list.
(e) Invoices and Bills of Lading must (i) bear Buyer’s Purchase Order Number, (ii) be made immediately after shipment, and (iii) include information required by Buyer to comply with the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. Separate invoices must be rendered for each partial shipment.
4. Price. Seller warrants that the prices specified in the PO are as low as any net prices now given by Seller to any other customer for goods or services of like grade and quality in like quantities, and Seller agrees that if at any
Revised 10/2020 time during the pendency of the PO lower net prices are quoted under similar conditions, said lower net prices shall be from that time substituted for the prices in the PO. Seller agrees that any price reductions made in the goods or services covered by the PO subsequent to its acceptance but prior to payment thereof will be applicable to the PO. The prices herein specified include all costs and charges to be incurred by Seller in the manufacture, production, delivery, and sale of the goods and services called for by the PO, including, without limitation, all service charges, all applicable federal, state and local taxes and duties, all wages and fees for services and materials, and all charges for transportation, packing, packaging and returnable containers, unless specified otherwise by the parties in writing.
5. Payment. Invoices will normally be paid according to discount terms, or if no discount is offered, within forty-five (45) days after receipt and acceptance of the goods or completion and acceptance of services or according to other agreed upon payment terms. At least five (5) working days are requested to process payments from the date of receipt of invoices irrespective of when goods and services are received. Unless specified otherwise, discount periods will be computed from either the date of delivery plus three days’ allowance for inspection or the date of receipt of correct invoices, prepared in accordance with the terms of the PO, whichever date is later. Payment shall not be construed to limit Buyer’s right of inspection, acceptance, set-off, or any other right.
6. Warranties.
(a) Seller warrants that it will diligently perform its services to the highest degree of workmanship and that all goods and services shall be free from defects in workmanship and material and shall be in conformity with specifications, drawings, samples, advertising materials, descriptions or performance criteria referred to in the PO or herein, and if of Seller’s design, shall be free from design defects. Seller further warrants that all goods shall be merchantable and that all goods and services shall be suitable for Buyer’s particular purposes, if any, as have been made known to Seller or reasonably should be known to Seller, and shall be safe and appropriate for the purpose for which goods and services of that kind are normally used.
(b) Seller further warrants that no goods sold to Buyer under the PO are adulterated or misbranded within the meaning of the FFDCA(as defined below)or within the meaning of any other federal, state or local law.
(c) Seller further warrants that it has full power to enter into, and to perform fully pursuant to the provisions of, the PO and that no goods or services or the provision, use or sale thereof shall in any way infringe upon or violate any rights of any party whether they be patent, trademark, trade secret, copyright, contractual or otherwise.
(d) Seller further warrants that all goods are covered by comprehensive product liability insurance. Said insurance should be placed with a responsible insurance company limited in amount of not less than $1,000,000.
(e) Seller further warrants that ingredients supplied hereunder, if applicable, do not come from cattle, cattle by-products, or derivatives thereof that are derived from animals born, raised or slaughtered in countries infected by bovine spongiform encephalopathy (BSE).
(f) All express warranties shall survive inspection, testing, and acceptance of the goods by Buyer and expiration or termination of the PO and shall be in addition to all warranties, express, implied or statutory.
(g) All warranties shall inure to Buyer, its customers and subsequent owners or consumers of the goods or services covered hereunder or the end products of which they are a part.
7. Indemnity. Seller shall, at its own sole cost and expense, defend, indemnify and hold harmless Buyer and its affiliates, subsidiaries, officers, agents, and employees against all claims, expenses (including, without limitation, attorneys’ fees to defend lawsuits that allege a loss regardless of whether the lawsuit has merit) losses, costs, damages, liabilities and suits arising from any breach or violation of the terms hereof, and from Seller’s negligence, failure to warn, strict liability or any alleged defect in the goods or services hereunder, including but not limited to any breach or alleged breach of any implied warranty or any of the express warranties described herein, or any alleged acts or omissions of Seller or its affiliates, subsidiaries, officers, agents, employees or subcontractors. Buyer reserves the right at any time to control its own defense.
8. Waiver. Buyer shall not, by any act, delay, omission or otherwise, be deemed to have waived any of the rights or remedies under the PO, and no waiver whatever shall be valid as against Buyer unless in writing, signed by an authorized representative of Buyer, and then only to the extent set forth therein. Buyer’s waiver of any right or remedy under the terms of the PO on any one occasion shall not be construed as a waiver of any right or remedy which Buyer would otherwise have on a future occasion.
9. Compliance.
(a) Seller shall comply with all applicable federal, state and local laws, rules, regulations, requirements, ordinances and orders, including without limitation, all provisions of (i) the Occupational Safety and Health Act of 1970, as amended, (ii) Executive Order 11246 issued September 24, 1965, as amended, (iii) the Federal Food, Drug and Cosmetic Act, as amended (the “FFDCA”), (iv) the Fair Labor Standards Act, as amended, (v) Title 42, U.S.C.A. § 2000, et. seq., as amended, (vi) Section 136 of Title 7 of the U.S. Code, as amended, (vii) the Federal Hazardous Substances Act, as amended, (viii) the Consumer Product Safety Act, as amended, (ix) the Poison
Revised 10/2020 Prevention Packaging Act, as amended, (x) the Federal Fair Packaging and Labeling Act, as amended, (xi) the Robinson-Patman Act, as amended, (xii) the Food Safety Modernization Act, as amended, and (xii) the Immigration Reform and Control Act, as amended; and all rules, regulations and orders thereunder (collectively, “Applicable Laws”).
(b) Seller and any of its permitted subcontractors 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.
(c) Seller shall, in performance of the PO, maintain a quality system that satisfies the following requirements:
1. Meets the intent of FDA requirements as stated in 21 CFR parts 210/211, 111, 820 or equivalent, or otherwise be approved by Buyer.
2. Provides notification and dates of any regulatory inspection related to the quality of product supplied to Buyer, characteristics inspected and whether or not the characteristics were acceptable or nonconforming.
Buyer reserves the right to audit or review the Seller’s quality system or records as deemed necessary.
Buyer may, upon request and during regular business hours, conduct an audit of Seller’s facility to evaluate its ability to comply with Buyer’s quality requirements. Any changes to Seller’s approved documents (e.g. specifications) that may affect the quality of materials, products and/or services for the PO must be submitted to Buyer for review and approval.
10. Intellectual Property.
(a) In the event Seller, or any subcontractor or other third party working for Seller, creates or develops any designs or goods or services especially for Buyer, the proprietary rights to such designs, goods or services shall vest in Buyer, and Seller hereby assigns and conveys and shall assign and convey or cause to be assigned or conveyed all such proprietary rights, including but not limited to all copyright, trademark and patent rights therein.
(b) Except as provided in the preceding subsection, in the event Seller, or any subcontractor or other third party working for Seller, designs or incorporates any new features of design or improvements in any designs or goods made, or services furnished, pursuant to the PO as a result of Seller’s or such third party’s compliance with the drawings, specifications or directions of Buyer, Seller grants to Buyer the right to reproduce such designs or goods or to perform such services together with, if applicable, a royalty-free, nonexclusive, irrevocable license covering such new feature of design or improvement.
(c) Seller shall assert no claim of any proprietary interest in or to any drawings, specifications or other material furnished by Buyer to Seller in connection herewith, and Seller shall not use such drawings, specifications or other material (other than in connection with the PO) without the prior written consent of Buyer.
(d) Seller shall execute, and shall cause subcontractors and other third parties working for it to execute, any and all instruments deemed by Buyer to be necessary or appropriate under subsections (a) and (b) hereof.
(e) Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the goods or services shall be deemed to have been disclosed as part of the consideration for the PO, and Seller shall not assert any claim (other than a claim for patent infringement) against Buyer by reason of Buyer’s use thereof. Buyer does not grant indemnity to Seller for infringement of any patent, trademark, copyright or data rights.
(f) In no event shall Seller sell or distribute in any manner whatsoever to persons other than Buyer or parties authorized in writing by Buyer, goods, supplies, materials or objects of any kind which are imprinted with or contain Buyer’s logo, trade names, trademarks or labels, even if rejected by Buyer as nonconforming.
11. Confidentiality.
(a) Seller shall not use or disclose any data, designs, or other information belonging to, supplied by or on behalf of Buyer. Upon completion by Seller of its obligations under the PO or upon Buyer’s request, such data, designs and other information or any copies thereof shall be returned to Buyer. Where in accordance with Buyer’s written authorization, Buyer’s data, designs or other information is furnished to Seller’s suppliers for procurement of supplies by Seller for use in the performance of the PO, Seller shall insert the substance of this provision in its own purchase order.
(b) The PO is confidential, and Seller shall not, without prior written consent of Buyer, disclose any information relative to or derived under the PO, except as may be required to ensure performance. Unless otherwise authorized by Buyer, Seller shall not advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services.
Revised 10/2020
12. Assignment. Neither the PO, or any part thereof, may be assigned, subcontracted or otherwise transferred by Seller, voluntarily or by operation of law, without the prior written consent of Buyer, and any such assignment or transfer without such consent shall be null and void and of no force or effect whatsoever. The terms and conditions of the PO shall bind any permitted successors and assigns of Seller.
13. Miscellaneous.
(a) Any notice or communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, if to Seller: at its address on the face of the PO and if to Buyer: at its address on the face of the PO to the attention of: Head of Supply Chain. Any such notice, if so mailed, shall be deemed to have been received the third business day following such mailing. Either party hereto may change its address for notice purposes by written notice to the other party as specified herein.
(b) All rights and obligations under the PO, including those arising from any contract based on or resulting from or arising out of the PO shall be deemed to be made and shall be governed by the laws of the State of Tennessee. Litigation brought to contest disputes arising under the PO shall be brought only in the state or federal courts of the State of Tennessee.
SELLER AND BUYER IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO THE POOR ANY PORTION OF ANY AGREEMENT WHICH IS RELATED TO THE PO, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
(c) The various provisions of the PO are severable and any determination of invalidity or unenforceability of any one provision hereof shall have no bearing on the continuing force and effect of the remaining provisions thereof.
(d) Seller shall be deemed in all respects an independent contractor and neither Seller nor any of its agents or employees shall have the right or authority to bind Buyer in any way.
14. Entire Agreement. The PO, including, without limitation, the Terms and Conditions, together with any documents incorporated herein by reference, contain the sole and entire agreement between Buyer and Seller regarding the subject matter hereof, and shall be applicable to all goods and/or services furnished by Seller to Buyer, provided, however that if a written contract is in existence between the Buyer and Seller covering the purchase of the goods, articles, work or services covered by the PO, the terms and conditions of said contract shall prevail to the extent that the same may be inconsistent with the Terms and Conditions.
