1. APPLICABILITY; OFFER
These General Terms and Conditions (“Terms”) apply to all purchase orders (“Orders”) issued by CooperSurgical, Inc. or its affiliates (the entity issuing the Order is called the “Buyer”) to the seller specified in each Order (the “Seller”). Each Order is an offer by the Buyer to purchase the goods or services specified in the Order, only on the terms and conditions set out in the Order and these Terms. No Order is binding on the Buyer until it is accepted by the Seller, and the Buyer may freely withdraw any Order, without cost or penalty, before it is accepted by the Seller.
Time, rate and place of deliveries are the essence of each Order and all deliveries shall be made strictly in accordance with the time schedule set out in the Order. Unless otherwise specified in an Order, the Seller shall ship all goods ordered in that Order via a common carrier selected by the Buyer, or, if the Buyer does not select a carrier, a reasonable common carrier selected by the Seller, for delivery DDP (Incoterms 2010) the Buyer’s location specified in that Order. The Seller shall pack all goods for shipment according to the Buyer’s instructions, or, if the Buyer does not provide instructions, in a manner reasonably sufficient to ensure that the goods are delivered in undamaged condition.
The Seller shall invoice the Buyer (each, an “Invoice”) for the goods or services specified in each Order upon delivery of those goods or services, at the prices specified in the Order and under the payment terms specified in the Order. Unless otherwise specified in the Order, all prices are inclusive of all packing, shipping and handling charges. The Seller shall show any applicable taxes separately on each Invoice, and, whenever any discount is applicable, show any applicable freight and similar charges separately to avoid discount being taken thereon. A bill of lading or express receipt must accompany each Invoice.
4. INSPECTION AND ACCEPTANCE
All supplies and services shall be subject to inspection and test by the Buyer and its customers at such times and places as they may require, including at the Buyer’s, or its customer’s, facility upon delivery. The Seller shall provide, without additional charge, all assistance reasonably requested by the Buyer in connection with the performance of those tests. The Seller shall also provide and maintain an inspection system acceptable to the Buyer. Records of all inspection work by the Seller shall be kept complete and available to the Buyer during the performance of each Order and for such longer periods as the Buyer determines. The Seller shall, at the Buyer’s request, promptly certify that the good or services furnished under an Order conform to all applicable drawings and specifications. Strict performance of the terms of each Order is required, and shall be deemed to be the essence of the contract. Substantial performance of the terms of an Order in good faith and without willful failure shall not be deemed sufficient performance.
If any goods or services supplied under an Order are defective in material or workmanship or otherwise not in conformity with the requirements of the Order, the Buyer shall, in addition to and without limiting its rights under Article 2 of the New York Uniform Commercial Code and other applicable law, have the right to (a) reject the goods or services in whole or in part and rescind the Order as to the rejected goods or services, without any cost or penalty to the Buyer, (b) reject the goods or services in whole or in part and require the Seller to promptly deliver conforming goods or services in accordance with the Buyer’s instructions, without additional cost to the Buyer, (c) accept the goods or services in whole or in part and deduct from the amount due the Seller, or otherwise recover from the Seller, the cost of remedying the defects and any other costs incurred by the Buyer as a result of the defects or (d) any combination of those alternatives. The Seller shall submit to the Buyer, together with any replacement goods or services, notification that those goods or services are to replace previously rejected goods or services.
No inspection, testing, approval or acceptance shall relieve the Seller from responsibility for any defects or other failure to meet the requirements of any Order or from any warranties. The Buyer’s rights under these Terms are cumulative and in addition to any other rights or remedies provided in any Order or by law or equity. No payment made under any Order shall be construed to be an acceptance of defective or otherwise improper goods or services, nor shall any such payment otherwise limit the Buyer’s rights.
5. WARRANTIES; INDEMNIFICATION
In addition to and without prejudice to all other warranties both express and implied, including the implied warranties of merchantability and fitness for a particular purpose, the Seller warrants that the goods or services furnished hereunder will be (a) free from defects in workmanship and material, (b) free from defects in design to the extent that the Seller is not supplying those goods or services based on detailed designs provided by the Buyer, (c) suitable for the purposes intended, (d) in compliance with all requirements of the relevant Order and all applicable drawings, specifications, samples, representations or other descriptions, (e) delivered free of the rightful claim of any third person by way of infringement or the like and (f) delivered free from any security interest or other lien or encumbrance.
All warranties, both express and implied, including those set out above, shall constitute conditions to the Seller’s proper performance of an Order and right to payment for goods and services delivered, shall survive inspection, acceptance and payment and shall inure to the benefit of the Buyer and its customers and users. Without limitation of any rights by reason of any breach of warranty or otherwise, any goods or services that are not as warranted, may at any time be returned to the Seller at the Seller’s expense for credit, refund, correction or replacement, as the Buyer may direct.
The Seller shall indemnify, defend and hold harmless the Buyer and its affiliates, employees, representatives and customers from and against any claims, liabilities, injuries, losses, damages, judgments, penalties, fines, costs or expenses, including the reasonable fees of attorneys, accountants and other professionals (“Losses”), to the extent arising from or related to any breach of the warranties set out above or the Seller’s negligence, willful misconduct or breach of these Terms or any Order.
6. DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION
Drawings, specifications, photographs and other engineering and manufacturing information supplied by the Buyer shall remain the Buyer’s property, shall not be copied or otherwise duplicated without the Buyer’s written consent and shall be returned to the Buyer upon completion of the relevant Order or upon demand.
Any intellectual property rights of the Seller, including patent rights and unpatented knowledge or information concerning the Seller’s products, methods, or manufacturing processes, that may be incorporated into any goods or services delivered under an Order or that the Seller discloses to the Buyer in connection with an Order shall, unless the Buyer and the Seller otherwise agree in writing, be part of the consideration delivered by the Seller under the Order, and the Seller shall not assert any claim against the Buyer by reason of the Buyer’s use or alleged use thereof.
7. TOOLS, MATERIAL AND INFORMATION
If the Seller creates, makes or procures any designs, sketches, drawings, blueprints, patterns, dies, molds, tools, gauges, materials, parts, equipment, special appliances or other property especially for producing goods covered by an Order, those items shall immediately, upon their creation, manufacturing or procurement, become the property of the Buyer unless otherwise provided in the relevant Order or otherwise by written agreement between the Buyer and the Seller. Any such item, and any other materials, engineering data and technical information provided by or paid for by the Buyer shall be, and shall be identified as, property of the Buyer, shall be held by the Seller at the Seller’s risk, shall be used exclusively in the production for the Buyer of products ordered by the Buyer, shall be subject to disposition by the Buyer at any and all times and, upon demand, the Seller shall return them, or cause them to be returned, to the Buyer, in the condition in which they were received, except for reasonable wear and tear and except to the extent that they have been incorporated in goods delivered under an Order or have been consumed in normal performance of work under an Order.
8. PROPRIETARY INFORMATION
All information disclosed, obtained or discovered by the Seller or its representatives in connection with its performance of any Order, including drawings, prints, publications, specifications, processes, manufacturing techniques, verbal explanations, schedules and the like, are the property of the Buyer. The Seller shall keep that information confidential and shall not disclose that information, nor use it for any purpose other than performance of an Order, nor use it for the benefit of any person other than the Buyer, without the Buyer’s prior written consent. Nothing in these Terms shall limit any confidentiality or non-disclosure agreement between the Buyer and the Seller.
9. NO INFRINGEMENT
The Seller warrants that the marketing, sale, use, import and export of all goods delivered under an Order and the performance of all services rendered under an Order, to the extent that those goods and services are not manufactured or rendered based on detailed designs or specifications provided by the Buyer, does not and will not infringe any patent, trade secret, copyright or other intellectual property right of any third person. The Seller shall indemnify, defend and hold harmless the Buyer and its affiliates, representatives and customers from and against any Losses, to the extent arising from or related to any action, suit or claim by any third person alleging that any goods or services delivered under an Order infringe any patent, trade secret, copyright or other intellectual property right of any third person.
The Buyer may at any time by written change order suspend performance in whole or in part, make changes to drawings, designs, specifications, method of shipment or packing or time or place of delivery, require additional work or direct the omission of work. If any such change causes an increase or decrease in the cost of or the time required for the performance of an Order, an equitable adjustment shall be made to the contract price or delivery date or both and the Order shall be modified in writing accordingly. Any claim for adjustment under this Section 10 shall conclusively be deemed waived unless asserted in a writing stating the amount of the claim within 30 days from the date of receipt by the Seller of the change order. Where the cost of property made obsolete of excess as a result of a change is included in the Seller’s claim for adjustment, the Buyer shall have the right to prescribe the manner of disposition of that property. Nothing in this Section 10 shall excuse the Seller from performing any Order as changed in accordance with this Section 10. NO CHANGE ORDER WILL BE BINDING ON BUYER UNLESS ISSUED BY AN AUTHORIZED REPRESENTATIVE OF THE BUYER IN WRITING. The Buyer’s engineering or technical personnel may, from time to time, render assistance or give technical advice to or effect in exchange of information with the Seller’s personnel in a liaison effort concerning the goods or services to be furnished under an Order. That exchange of information or advice shall not vest the Seller with authority to change the goods or services to be delivered under an Order or limit the Seller’s obligations under an Order.
11. TERMINATION FOR CAUSE
Time, and exact performance, are the essence of each Order. If the Seller fails to make any delivery in accordance with the applicable schedule or otherwise fails to strictly perform all of the terms or conditions applicable to any Order, or breaches these Terms in any respect, or fails to make progress on an Order in such a manner as to endanger timely performance of that Order, the Buyer may terminate that Order by written notice to the Seller, effective (a) if the relevant breach is not reasonably susceptible to cure, immediately, or (b) if the breach is reasonably susceptible to cure, 15 days after delivery of that notice, unless the Seller has sooner cured the breach in all respects to the Buyer’s satisfaction. The Buyer also may terminate any Order, with immediate effect, if the Seller becomes unable to generally pay its debts as they become do or upon the commencement of any proceeding by or against the Seller in bankruptcy or for appointment of a receiver or trustee or an assignment for the benefit of creditors. Upon any termination of an Order under this Section 11, the Buyer may purchase similar goods or services from other vendors on such terms and in such manner as the Buyer may deem appropriate and the Seller shall be liable to the Buyer for any additional cost incurred by the Buyer in purchasing those substitute goods or services.
12. TERMINATION WITHOUT CAUSE
The Buyer may terminate any Order with respect to undelivered goods or services, without cause, by written notice to the Seller, subject to (a) paying the Seller in accordance with the terms of the Order for any conforming goods or services properly delivered before termination and (b) reimbursing the Seller for the documented costs reasonably incurred by the Seller before termination in the course of preparing to deliver goods or services under the Order that were not delivered before termination. The Buyer’s obligations under the immediately preceding sentence shall be the Seller’s sole remedies for termination.
13. RISK OF LOSS
The Seller shall have title to, and bear all risk of loss of, all goods ordered in each Order until those goods are delivered to the delivery point in accordance with Section 2 and accepted by the Buyer.
14. LIABILITY FOR INJURY
The Seller shall be solely responsible for, and shall indemnify, defend and hold harmless the Buyer and its employees, representatives and customers from and against, any and all Losses arising out of personal injury or property damage incident to the work to be performed by the Seller under an Order, whether performed on the premises of the Seller or the Buyer or elsewhere. The Seller shall at all times maintain insurance coverage satisfactory to the Buyer to cover the above, and, upon the Buyer’s request, shall provide to the Buyer certificates or other appropriate evidence of that insurance.
15. LIEN WAVERS
If the furnishing of any labor or material under any Order could give rise to any liens or lien rights against any premises of the Buyer or its customers, the Seller shall obtain and furnish, promptly upon the Buyer’s request, good and sufficient lien waivers by the Seller and all other persons furnishing any such labor or material on the Seller’s behalf or at the Seller’s request.
16. INDUSTRIAL LAWS
Neither the Seller nor any of the persons furnishing goods or performing work or services under any Order are employees of the Buyer within the meaning or application of any federal or state unemployment insurance law or old age benefit law or other social security law or any workmen’s compensation, industrial accident or other industrial or labor law. The Seller shall, at its sole expense, comply with all of those laws, and the Seller hereby assumes all liabilities and obligations imposed by any of those laws with respect to any Order.
17. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
In performance under each Order and in every related or connected activity, the Seller shall comply fully with all applicable laws, ordinances, rules and regulations and, when requested, shall furnish evidence satisfactory to the Buyer of that compliance. Without limiting the generality of the immediately preceding sentence, the Seller warrants that all goods and services provided by it under an Order were and shall be produced or rendered in compliance with the Fair Labor Standards Act of 1938, as amended. The Seller shall indemnify, defend and hold harmless the Buyer from any and all Losses incurred or suffered by the Buyer as a result of the Seller’s failure or omission to comply with any of those laws, ordinances, rules and regulations.
The Seller shall insert the following certification on each Invoice: “The Seller certifies that the goods and/or services covered hereby were produced in compliance with the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the United States Department of Labor under Section 14 thereof.”
18. RELATIONSHIP OF THE PARTIES
The relationship between the Buyer and the Seller is that of independent contractors. Nothing contained in these Terms or in any Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Buyer and the Seller, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Except as otherwise explicitly agreed between the Buyer and the Seller in writing, no exclusive relationship shall arise from these Terms or any Order.
19. NO ASSIGNMENT; NO SUBCONTRACTING
The Seller shall not assign these Terms, or any Order, or any rights hereunder or thereunder, including any monies due or to become due, without the Buyer’s prior written consent, and any purported assignment without the Buyer’s written consent shall be void and of no effect. The Seller shall not subcontract or otherwise delegate any aspect of the Seller’s performance under any Order without the Buyer’s prior written consent.
20. EQUAL OPPORTUNITY
During the performance of each Order, the Seller shall comply with Executive Order 11246 as amended from time to time and all rules, regulations and orders issued pursuant thereto.
Failure of the Buyer in any one or more instances to insist upon strict performance of any of the terms or conditions of these Terms or any Order, or to exercise any right or privilege contained in these Terms or any Order, or the Buyer’s waiver of any breach of the these Terms or any Order shall not be construed as thereafter waiving any of those terms, conditions, rights or privileges, all of which shall continue and remain in full force and effect as if no waiver had occurred.
22. ANTI-CORRUPTION LAWS
The Seller shall, and shall cause its employees and other representatives to, comply with all applicable Anti-Corruption Laws. Without limiting the immediately preceding sentence, except for the payment of fees required by applicable law to be paid to governmental entities, the Seller shall not, and shall cause its representatives not to, in connection with goods or services provided under any Order or any other transaction or matter involving the Buyer, make, offer to make or promise to make any payment or transfer of anything of value, directly or indirectly, to (a) anyone working in an official capacity for any governmental entity, including any employee of any government-owned or controlled entity or public international organization, (b) any political party, official of a political party or candidate for political office or (c) any other person if that payment, offer of payment or promise of payment is made in order to obtain or retain business or secure any improper business advantage. “Anti-Corruption Laws” means all applicable anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act, and any laws having a similar purpose.
Without limiting any other right or remedy the Buyer may have, the Buyer may at any time set off any amount that the Seller owes the Buyer against any amount that the Buyer owes the Seller.
The Buyer may amend these Terms from time to time in its sole discretion by posting an updated version of these Terms on its website. Any such amendment shall be effective with respect to all Orders issued by the Buyer on or after the date on which it posts that amendment.
If any provision of any Order or these Terms would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, that provision, as to that jurisdiction, shall be ineffective, without invalidating the remaining provisions of that Order or these Terms or affecting the validity or enforceability of that provision in any other jurisdiction. Notwithstanding the foregoing, if that provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in that jurisdiction, it shall, as to that jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
26. GOVERNING LAW
The validity, construction and interpretation of these Terms and any Orders, and the rights and duties of the parties hereto and thereto shall be governed by the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule, whether in the State of New York or any other jurisdiction, that would cause the laws of any jurisdiction other than the State of New York to apply. Without limiting the generality of the immediately preceding sentence, the U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms, any Orders or the rights and duties of the parties hereto and thereto.
27. JURISDICTION AND VENUE
THE NEW YORK STATE AND UNITED STATES FEDERAL COURTS SITTING IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO ANY ORDER OR THESE TERMS OR THE SUBJECT MATTER OF ANY ORDER OR THESE TERMS, AND EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION OR PROCEEDING OR FOR RECOGNITION OF ANY JUDGMENT AND (B) WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF, AND ANY DEFENSE BASED ON AN INCONVENIENT FORUM IN, ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
28. JURY TRIAL WAIVER
EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BASED UPON OR ARISING OUT OF ANY ORDER OR THESE TERMS OR ANY DEALINGS BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER OF ANY ORDER OR THESE TERMS.
29. COMPLETE AGREEMENT
These Terms, together with any Orders issued under these Terms, contain the complete and entire agreement between the parties related to the subject matter hereof and thereof, and supersede any previous communications, representations or agreements, whether verbal or written, with respect to that subject matter. The Seller’s acceptance of any Order is strictly limited to the terms of that Order and these Terms. No terms and conditions contained in the Seller’s standard terms and conditions of sale, or any invoice or other document issued by the Seller, that are additional to or different from the terms and conditions contained in these Terms or any Order shall be of any force or effect, and the Buyer hereby objects to, and rejects, any such terms and conditions.