Terms & Conditions — Vendor Purchase Order

Unless otherwise set forth on the front of the Purchase Order or in another writing signed by ABC Home Medical Supply, Inc. (“ABC”) and the Vendor, Vendor Purchase Orders are subject to the following terms and conditions:

1. DEFINITIONS AND INTERPRETATION
   1. Vendor will be deemed to have accepted the Purchase Order if Vendor (i) acknowledges so in writing; (ii) delivers any Product or Service (including any deliverable); or (iii) commences any work on any Products or Services, including any deliverable. Vendor shall not reject any Purchase Order issued by ABC and must perform the supply of such Products and/or such Services specified therein in accordance with the terms of the Contract. For the avoidance of doubt, nothing in the Contract creates any obligation on ABC to issue any Purchase Order or to procure for the provision of any Product or Service from Vendor. Vendor agrees that the Contract is not intended to create an exclusive relationship between ABC and Vendor in respect of the supply of any Product or Service. Vendor shall at all times keep ABC fully informed of any development which would affect the production of the Products or the delivery of Services. Vendor shall comply with all applicable laws, regulations and guidelines.
   2. Price and Taxes: This Order must not, without the written agreement of ABC, be filled at a price higher than that specified herein or, if this Order is unpriced, at a price higher than that last charged or quoted by Seller to ABC. All prices shall be F.O.B. place of delivery and shall include any and all city, state, and Federal taxes, including (but not limited to) taxes on manufacture, sales, receipt, income, occupation, use, and analogous factors.
   3. Products and Deliverables: Vendor undertakes warrants that it has or will have good title to and has or will have the right to offer to sell to ABC, the Products and related deliverables. Vendor warrants that Products and related deliverables shall: (i) conform to their specifications; (ii) be of satisfactory and merchantable quality and fit for the purpose for which Products and related deliverables are being bought; (iii) be free from all defects, patents, or latent, including defects in material, design and workmanship.
   4. Vendor warrants that it has the requisite licenses and regulatory approvals and certifications as required under legal requirements to manufacture (where applicable) and supply products and deliverables.
   5. Vendor warrants that it has the requisite manpower/personnel, equipment, materials, skill and expertise for the satisfactory provision of Services and that the Services shall be provided in a proper, professional, and timely manner consistent with industry and professional standards.
      
      
2. PAYMENT: Payment shall be made by ABC in accordance with its established terms or after the date of acceptance of the items by ABC or receipt of the invoice, whichever is later.
   
   
3. PACKING AND SHIPPING: No charges shall be made for packing or crating unless set forth on the front of this Order. Bills of Lading, express receipts, invoices, shipping lists and similar documents shall be sent on the date the shipment is made. All containers shall be labeled with tags showing the Seller’s name, ABC’s Order Number, and the destination designated by ABC. Shipment shall be made in the name and on behalf of the person or organization with whom this Order is placed. A packing list shall accompany all shipments.
   
   
4. DELIVERY: Delivery shall be made within the time or times specified in this Order. Upon Seller’s failure to deliver within the specified time, ABC shall have the right to (a) purchase elsewhere, (b) charge the Seller with any loss resulting from his failure to deliver, and/or (c) cancel this Order. ABC shall have the right to return any item, at ABC’s expense, in the event that ABC is rendered unable to use such item due to natural disaster, war or act of God, or other cause beyond its reasonable control.
   
   
5. INSPECTION: Upon arrival at destination, ABC shall have the right to inspect all items before payment or acceptance and may reject or return for cancellation or replacement any nonconforming item. Seller assumes all risks in connection with any such return, and Seller shall pay all expenses of inspections, handling and transportation both ways. Seller shall not make any replacement without first obtaining written consent of, and shipping instructions from ABC.
   
   
6. RISK OF LOSS: Seller agrees that the risk of all loss shall remain with Seller until after all items subject to this Order have been delivered, inspected, and accepted by ABC.
   
   
7. CHANGES: ABC shall have the right prior to the date of shipment of any item by Seller to make changes in quantities, amounts, time of delivery, place of delivery, drawings, designs, specifications, packaging, and method of transportation. If any such change causes an increase or decrease in the cost of an item, or the time required for performance, or otherwise materially affects any other term of this Order, Seller and ABC shall enter into a written agreement providing for a commercially reasonable adjustment in the terms of the Order.
   
   
8. CANCELLATION: ABC may, without liability, cancel this Order in whole or in part if (a) an item subject to this Order is defective, (b) Seller fails to comply with the terms of this Order, (c) Seller becomes insolvent, (d) Seller makes an assignment for the benefit of creditors, (e) a receiver is appointed for Seller, or (f) proceedings for an arrangement, reorganization, or bankruptcy under the Bankruptcy Act are filed by or against Seller.
   
   
9. WARRANTIES: Seller warrants that the items covered hereunder will conform to applicable specifications and will be merchantable, of good material, and workmanship, free from defects, and will be fit and sufficient for the purpose intended. These warranties shall be in addition to all other warranties, express or implied as provided in the Uniform Commercial Code. Seller represents, warrants, and agrees, by accepting this Order, that he has and shall continue to comply with the manner in which the item or items subject to this Order are designed, manufactured, packed, labeled, shipped and (if applicable) installed so that, under ordinary conditions of use by ABC, they shall comply with the Occupational Safety and Health Act of 1970 and all applicable regulations promulgated thereunder.
   
   
10. REMEDIES: ABC’s remedies shall be cumulative. The remedies set forth here shall not exclude any remedies provided in the Uniform Commercial Code or any other applicable law. ABC’s waiver of any breach of the terms of this Order shall not constitute its waiver of any other breach of these terms. ABC’s acceptance of any item, or payment, therefore, shall not constitute waiver of any breach of these terms.
    
    
11. ASSIGNMENT: Neither this Order, nor any payment due Seller, shall be assigned by Seller, in whole or in part, without the prior written agreement of ABC.
    
    
12. APPLICABLE LAW: Seller agrees that the law applicable to this Order shall be the law of the place of delivery of the item, service, or items subject to this Order. Seller further agrees to comply with all applicable Federal, state and local laws and regulations, including (but not limited to) the Federal Food, Drug and Cosmetic Act and Occupational Safety and Health Act of 1970, all regulations and orders thereunder, and all similar state laws, regulations and orders. Seller agrees to indemnify ABC against, and hold it harmless from, any loss or damage resulting to ABC from violation of any such law, regulation or order by Seller or its agents.
    
    
13. ACCEPTANCE OF THESE TERMS: Seller, by accepting this Order, agrees to all of the terms and conditions set forth here; Seller further agrees that this Order is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof. No usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Order. This Order can be modified only by a writing signed by ABC.
    
    
14. NON-DISCLOSURE: The specifications, drawings, samples or other information, if any, furnished by ABC to Seller in respect of the items (collectively “Confidential Information”) shall be kept in strict confidence by Seller. Seller will not disclose the Confidential Information to any third person except with the written permission of ABC and shall use such Confidential Information only for the purpose of supplying goods to ABC.
    
    
15. ETHICAL BUSINESS PRACTICES, SOCIAL RESPONSIBILITY & SUSTAINABILITY: ABC expects its business partners, including Seller, to act with integrity and in accordance with applicable law and ethical standards. In particular, Seller shall comply with the legal and regulatory requirements of the country(ies) in which Seller operates, as well as with any applicable U.S. laws and regulations, including but not limited to: anti-kickback laws; anticorruption and antibribery laws (including the UK Bribery Act and the U.S. Foreign Corrupt Practices Act); fair competition and antitrust laws. Seller shall comply with all applicable laws and regulations regarding labor rights, employment practices and working hours and conditions, including but not limited to laws and regulations related to human slavery or trafficking; child labor; wages and benefits; and health and safety. Additionally, Seller shall operate in an environmentally responsible and efficient manner to minimize the adverse impact of Seller's operations on the environment. At a minimum, Seller shall comply with all applicable environmental laws and regulations and shall strive to reduce or eliminate waste and conserve natural resources in Seller's operations. ABC is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. 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. 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. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
    
    
16. TERMINATION
    1. For cause: ABC may terminate this Purchase Order immediately by notice in writing if:
       1. Vendor commits any breach of these Terms and Conditions and such breach is not capable of being remedied, or in the case of a breach capable of being remedied, Vendor shall have failed, within thirty (30) days after the receipt of a request in writing from ABC to remedy such breach. Vendor shall have no claims whatsoever against ABC in respect of such termination; or
       2. Vendor is unable, is deemed for the purposes of any applicable law to be unable, or admits its inability, to pay its debts as they become due, or is considered by ABC in its reasonable discretion to be in an adverse financial situation or is otherwise unable to fulfill its obligations under this Purchase Order; or
       3. Vendor commits any breach of any applicable legal requirements;
       4. Vendor’s ability to carry out its obligations is prevented or substantially interfered with by any legal requirements; or
       5. Vendor, being: (i) an individual, shall at any time become bankrupt, or shall have a receiving order or administration order made against him, or shall make any composition or arrangement with or for the benefit of his creditors, or shall make any conveyance or assignment for the benefit of his creditors; or where Vendor is a firm, any partner in that firm shall at any time become bankrupt, or shall have a receiving order or administration order made against him, or shall make any composition or arrangement with or for the benefit of his creditors, or shall make any conveyance or assignment for the benefit of his creditors (ii) a company, shall pass a resolution or the Court shall make an order that the company shall be wound up (otherwise than for the purposes of amalgamation or reconstruction), or if a receiver or manager on behalf of a creditor shall be appointed, or shall propose to the company for a composition in satisfaction of its debts or a scheme of arrangement of its affairs or application to court for the appointment of a judicial manager, or if circumstances arise which entitle the court or a creditor appoint a receiver or manager or which entitle the Court to make a winding order; or
       6. At any time during the term of this Purchase Order, any of the Products or related deliverables are subject to any product recall, withdrawn from supply (voluntarily or otherwise) and/or determined to be hazardous or potentially dangerous to health and/or brought under investigation in any jurisdiction, whether by the WHO, FDA or any health authority, Vendor or ABC (such Products or related deliverables, “Withdrawn Products”), Vendor shall promptly notify ABC of such determination, withdrawal and/or investigation (collectively “Withdrawal”), and ABC may terminate this Purchase Order, without being thereby liable for any costs or compensation to Vendor and without prejudice or limitation to any other rights and/or remedies it has against Vendor, including the right of ABC to attempt to source for and purchase similar products from any alternative source
    2. Without cause: ABC may terminate this Purchase Order (save where Acceptance Notice has been issued) without cause at any time, by giving at least thirty (30) days written notice to Vendor, and ABC shall not be liable for any Loss suffered or incurred by Vendor arising from any such termination, or to compensate Vendor.