NuVasive PO Terms and Conditions for Direct Materials and Indirect Goods and Services
THESE PURCHASE ORDER TERMS AND CONDITIONS APPLY TO BOTH DIRECT MATERIALS (IDENTIFIED IN THE PURCHASE ORDER WITH A NUVASIVE MATERIAL ITEM NUMBER,) AND INDIRECT PURCHASES FOR GOOD AND SERVICES (GOODS AND SERVICES NOT IDENTIFIED IN THE PURCHASE ORDER WITH A NUVASIVE ITEM NUMBER).
Any purchase orders for direct materials and/or indirect goods or services placed by NuVasive, Inc. or any of its designated affiliates with a supplier (each, a “Purchase Order” or “PO”) concurrently with or after the transmittal of this document are subject to the following Purchase Order Terms and Conditions. The recipient of a Purchase Order is referred to as “Supplier” or “Seller” and NuVasive, Inc. or its designated affiliate placing a Purchase Order is referred to as “Purchaser” or “NuVasive”.
These, and only these, Purchase Order Terms and Conditions shall exclusively govern a NuVasive Purchase Order. Only Purchaser's specific written consent will bind it to any terms hereafter transmitted or proposed by Supplier such as a Purchase Agreement, Service Agreement, Transport of Goods Agreement, Production Equipment Agreement, or the like ("Agreement"). Where a NuVasive Purchase Order relates to goods and/or services that are the subject of an Agreement between Purchaser and Supplier, the terms of that Agreement apply to the extent of any inconsistency with these Purchase Order Terms and Conditions.
THERE ARE TWO (2) DIFFERENT VERSIONS OF THE PURCHASE ORDER TERMS AND CONDITIONS AND EACH GOVERNS ONE OF THE PURCHASE ORDERS LISTED BELOW:
NUVASIVE® PO TERMS AND CONDITIONS OF PURCHASE FOR DIRECT MATERIALS (“Terms and Conditions Direct”):
1. ACCEPTANCE of the Purchase Order must be without qualification. NuVasive shall not be bound by any terms and conditions not appearing herein. Shipment by Seller of the material ordered shall constitute a waiver by Seller of all terms and conditions contained in any acceptance form or any other communications which are inconsistent with these Terms and Conditions Direct, unless specifically agreed to, in writing, by Purchaser.
2. COUNTER-OFFERS – must be made within 5 working days of the date of the Purchase Order; Purchase Orders without counter-offers are considered accepted after the 5th working day.
3. ACKNOWLEDGMENT – The Seller will formally acknowledge the acceptance by counter signature of a Purchase Order when requested. Acknowledgments requested but not received by the end of the 5th day
after the date of a Purchase Order may be considered void. Purchaser will advise Seller when this right has been exercised.
4. SHIPPING INSTRUCTIONS – Seller is responsible for:
4.1 Affixing the NuVasive PO number to each container pertaining to the product therein.
4.2 US Domestic shipments shall include a packing list for each Purchase Order shipped; data must include: PO #, Purchaser’s part number (if any), item identification, and item quantity shipped. All non-US locations shipping to NuVasive US location(s) must comply with the shipping instructions as designated on the PO.
4.3 Shipping quantities within +5% -0% of the quantity due unless otherwise noted by the PO.
When shipping “short”, the packing slip will note that the Seller is considering the order complete with
the quantity shipped. Quantities in excess of those allowable may be returned freight collected and
debited from the invoice by the Purchaser.
4.4 Paying freight charges unless otherwise noted on the PO. If noted on PO that NuVasive will
pay, it should be shipped FOB Destination via ground on the NuVasive Federal Express account unless
otherwise stated in PO header/line item notes or by written advisement from Purchaser.
4.5 Packing product in conformance with the requirements of carrier’s tariffs and in such a way
to protect the product from damage during shipment. No extra charge shall be made for packaging
materials unless authority is expressly incorporated in the PO.
4.6 Shipping product such that it will arrive at NuVasive no earlier than 5 days of the due date and
no later than the due date. Upon notification, product can be shipped to arrive more than 5 days early
within the month of the due date.
5. PRICE – if no price is stated on the Purchase Order, material must not be furnished at a price higher than last paid Seller by Purchaser for comparable material without prior notice and written acceptance by Purchaser of such increased price. Seller further represents to the best of its knowledge, information and belief that the prices charged for items covered by the Purchase Order are not in excess of or less than prices permitted by applicable state, federal, and local law or regulation. Seller agrees to refund any amount paid by Purchaser in excess of lawful amounts.
6. CHANGES to PURCHASE ORDERS shall not be binding upon Purchaser unless approved by Purchaser in writing.
7. CHANGES to MATERIAL – Seller acknowledges that certain material(s) purchased hereunder may be incorporated into medical devices regulated under the Federal Food, Drug, and Cosmetic Act, and the Seller agrees to notify Purchaser of any proposed change(s) to be made to any such material(s). Such notification shall be made in sufficient detail to allow Purchaser to determine the impact of such change(s), if any, upon the completed medical device.
8. CHANGES to PROCESS – Seller acknowledges that certain material(s) purchased hereunder may be incorporated into medical devices regulated under the Federal Food, Drug and Cosmetic Act, and the Seller agrees to notify Purchaser of any proposed change(s) to be made to processing such material(s) when those changes are other than specified by the Purchaser or when those changes have the potential to alter the performance of the material(s). Such notification shall be made in sufficient detail to allow Purchaser to determine the impact of such change(s), if any, upon the completed medical device.
9. RISK of LOSS or DAMAGE – Seller shall be responsible for the materials until they have been delivered to and accepted by Purchaser, notwithstanding any other terms contained herein. All materials will be received by Purchaser subject to its right of inspection and rejection. Purchaser shall be allowed a reasonable period of time to inspect the material and to notify Seller of any nonconformance with these Terms and Conditions Direct. Purchaser may reject any materials which do not conform to these Terms and Conditions Direct. Materials so rejected may be returned to Seller or held by Purchaser at Seller’s risk and expense.
10. INVOICES and DISCOUNTS – Invoices shall: a) be provided in duplicate with each delivery with a bill of lading; b) be postmarked with the same date as the date appearing on the invoice; c) cover no more than 1 Purchase Order; and d) note the PO upon which the delivery has been made. Payment will be made within forty-five (45) days from date of receipt of a conforming invoice and provided the materials have been correctly delivered and accepted by NuVasive. Invoices lacking terms may, at the Purchaser’s discretion, be discounted at 2%-10 days. The discount period will be calculated from the date on which Seller will have complied with all requirements of the Purchase Order and these Terms and Conditions Direct and Purchaser has received an invoice in good order.
11. DELIVERY: NOTICE of LABOR DISPUTES – Time is and shall remain of the essence in each Purchase Order; no acts of Purchaser, including, without limitation, modification of a Purchase Order or acceptance of late deliveries shall constitute waiver of this provision. Purchaser reserves the right to refuse or return at Seller’s risk and expense shipments made in excess of Purchaser’s orders or in advance of required schedules or to defer payment of advanced deliveries until scheduled delivery dates. Seller shall notify Purchaser immediately of any actual or potential labor dispute which could affect the delivery or the performance of a Purchase Order.
12. PATENTS – Seller warrants that the materials sold hereunder and the use of such goods where a representation of suitability for such use, express or implied, has been made, do not infringe any United States letters patent, and, where Seller knows or has reason to believe that the materials will be resold or used in any foreign country, do not infringe any letter patent of such country. Seller further agrees to indemnify and save Purchaser harmless from and against any and all liability for such infringement including damages, costs, and expenses arising from any suit against Purchaser alleging such infringement provided Purchaser gives Seller prompt notice in writing of the institution of any such suit and permits Seller, if it so elects, to enter and defend, settle or otherwise terminate such suit.
13. TRADEMARKS – Purchaser warrants that all of the trademarks Purchaser requests Seller to affix to the materials purchased are those owned by Purchaser or has the right to use same; it is understood Seller shall not acquire or claim any rights, title or interest therein or use any of such trademarks on any materials produced for itself or anyone other than Purchaser.
14. ASSIGNMENT – Seller shall not, without first obtaining written consent of the Purchaser, in any manner assign or sub-contract all or any part of a Purchase Order or these Terms and Conditions Direct.
15. ADVERTISING – Seller shall not, without first obtaining written consent of the Purchaser, in any manner advertise, publish (including denial or confirmation thereof), or use for the purposes of demonstration the fact that Seller has contracted to furnish to Purchaser the materials ordered in a Purchase Order.
16. WARRANTY – In accepting a Purchase Order, Seller warrants that the items to be shipped therein are free from defects in materials, workmanship, and fabrication and that all merchandise delivered shall be of quality, quantity, size, description, and dimension specified and strictly in accordance with Purchaser’s specifications, drawings and approved samples, if any, and suitable for the purpose(s) designated. These warranties shall survive acceptance and payment and shall run to the Purchaser, its successors, assigns, customers, and the users of its products and shall be deemed exclusive.
17. INDEPENDENT CONTRACTORS – The Seller shall perform hereunder as an independent contractor and not as an employee or agent of the Purchaser.
18. CHANGES – SPECIFICATIONS – Purchaser shall have the right by written order, without notice, to make changes from time to time in the work to be performed or the materials to be furnished by Seller under a Purchase Order. If such changes cause an increase or decrease in the amount due under a Purchase Order or in the time required for its performance, an equitable adjustment shall be made, and the order shall be made accordingly. Any claim for adjustment must be asserted in writing within thirty (30) days from the date the change is ordered. Nothing contained in this clause shall relieve Seller from proceeding without delay in the performance of the Purchase Order as changed.
19. CANCELLATION and TERMINATION – a) Purchaser may cancel a Purchase Order in whole or in part without liability to Purchaser if deliveries are not made at the time and in the quantities specified or in the event of a breach or failure or any of the other terms or conditions hereof. b) Purchaser may terminate a Purchase Order in whole or in part at any time for its convenience by notice to Seller in writing. On receipt by Seller of such notice, Seller shall, and to the extent specified therein, stop work and the placement of subcontracts, terminate work under subcontracts outstanding thereunder, and take any necessary action to protect property in Seller’s possession in which Purchaser has or may acquire an interest. Any termination claim must be submitted to Purchaser within sixty (60) days after the effective date of the termination and shall be subject to equitable adjustment based on negotiation. c) Any cancellation or termination by Purchaser, whether for default or otherwise, shall be without prejudice to any claims for damages or other rights of Purchaser against Seller. d) Purchaser shall have the right to reasonably audit all elements of any termination claim and Seller shall make available to Purchaser on request all books, records and papers relating thereto.
20. CONFIDENTIAL RELATIONSHIP – Seller agrees to treat as strictly secret and confidential all specifications, programs, drawings, blueprints, nomenclature, samples, models, and other information supplied to it by Purchaser.
21. TOOLS and MATERIALS – Purchaser shall retain title to any designs, sketches, drawings, programs, electronic-files, blueprints, patterns, dies, models, molds, tools, plates, cuts, special appliances, and materials furnished to Seller by or paid for by the Purchaser in connection with a Purchase Order. They shall be recorded and identified as property of Purchaser and retained by Seller on consignment subject to commission by Purchaser. They shall be at Seller’s risk and shall be replaced by Seller if lost, damaged or destroyed. They shall be maintained in good conditions at Seller’s expense and kept insured by Seller with loss payable to Purchaser. Such facilities shall be used exclusively in the production for Purchaser of articles required by the Purchase Order and shall not be used for production of larger quantities than those specified therein or in the production, manufacture, or design of any articles for any other person without prior written consent of Purchaser. Such facilities shall be subject to disposition of Purchaser at any and all times. Upon demand they shall be returned to Purchaser, including any unused materials furnished by Purchaser and all spoiled or defective materials or products which contain any secret or patented device unless Purchaser shall otherwise direct. However, nothing in this paragraph shall be construed as imposing any obligation on Purchaser to furnish any such facilities to seller.
22. TAXES – Except as otherwise provided herein and unless prohibited by statute, Seller agrees to pay any federal, state or local sales tax, use tax, transportation tax or other excise tax, custom duty or levy including foreign, provincial, and local taxes which may be imposed upon the articles and supplies ordered hereunder, or by reason or their sale or delivery.
23. COMPLIANCE with LAWS – In filling a Purchase Order, Seller warrants it is in compliance with all applicable federal, state, and local laws, orders and regulations including, without limitation, the Federal Food, Drug and Cosmetic Act and Safe Medical Devices Act as amended and that goods are not adulterated or misbranded for purposes of the foregoing. Seller also warrants that it complies with all applicable laws, orders, and regulations pertaining to equal employment opportunity (specifically Executive Order 11246), waste management, the environment, human trafficking, slavery, forced labor and/or child labor, and occupational safety and health regulations in its operations. Seller will comply with 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. In addition, and to the extent not exempt, Seller will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. To the extent not exempt, Seller will also comply with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496). Upon request by NuVasive, Seller will provide all information necessary to demonstrate to NuVasive compliance with all applicable laws and regulations. Seller will notify NuVasive immediately upon becoming aware of any concerns relating to compliance with this Section.
24. COUNTRY OF ORIGIN – Seller agrees that each product is made and manufactured in the United States or a “designated country” as defined in Federal Acquisition Regulation (FAR) 52.225-5 (48 CFR 52.225-5). Seller shall be responsible for providing to NuVasive accurate and timely information pertaining to the country and site of manufacture for each lot of product shipped for purposes of both export/import declaration and for NuVasive to contract with U.S. government agencies. Seller shall mark all products and/or packaging with correct country of origin markings, and shall include country of origin information on all commercial invoices sent with shipments of products. Supplier shall further provide accurate Export Commodity Control Numbers (ECCNs) and US Census Bureau Schedule B and Harmonized Tariff codes in conformity with all applicable trade laws. The site of manufacture and/or country of origin of any products shall not be changed by Seller without NuVasive’s prior written consent.
25. INDEMNITY and INSURANCE - a) Seller shall defend, indemnify, and hold harmless Purchaser, its employees, its customers and users of the purchased articles from any property damage, personal injuries or death arising out of the purchase and/or use of the articles purchased hereunder and/or arising out of Seller’s (or its subcontractor’s) work or performance hereunder and shall procure and maintain liability insurance with contractual liability coverage with minimum limits of $1,000,000 or with such higher limits as Purchaser shall reasonably request. Excluded from this indemnification are any and all injuries and damage caused by any negligence on the part of Purchaser or any unauthorized warranty relating to the article(s) by Purchaser. Seller shall on or before delivery of the article(s) purchased hereunder, furnish to Purchaser a Certificate of Insurance evidencing the foregoing coverage and limits. b) Seller shall defend, indemnify and hold harmless Purchaser from the assessment by any third party of any liquidated damages or proven actual damages arising out of the failure of Seller to timely deliver the article(s) purchased hereunder. c) Seller shall defend, indemnify, and hold harmless Purchaser, its officers, directors, agents and employees from and against any and all damages, charges, losses (including the cost of any articles lost by libel, condemnation, or voluntary recall), actions, and proceedings brought by the United States of America or any state and local government or any agency or instrumentality thereof against Purchaser, its officers, directors, agents, and/or employees, or against any such articles by reason of any claim or findings by said public authority that only such articles are as herein guaranteed and warranted.
26. SETOFF – Purchaser may set off any amount due from Seller during which time Seller shall continue performance hereunder while such setoff or any adjustment relating to such setoff is being made.
27. GOVERNING LAW – The contract resulting from the acceptance of a Purchase Order shall be interpreted according to the laws of the State of California.
28. ARBITRATION – Seller and Purchaser agree to submit any dispute arising from the performance or failure to perform under a Purchase Order or these Terms and Conditions Direct to binding arbitration under the commercial arbitration rules of the American Arbitration Association at its regional offices closest to Purchaser. The arbitrator shall have the power to award damages but shall not in any case award exemplary or punitive damages. The decision of the arbitrator may be entered into judgment in any court of competent jurisdiction.
29. DAMAGES – Purchaser’s liability for breach of a Purchase Order or these Terms and Conditions Direct shall not exceed the difference between the resale prices of any materials or work in process sold in good faith and in commercially reasonable manner and the contract price for such materials or work in process, less expenses and costs saved in consequence of Purchaser’s breach. Purchaser shall not be liable for any indirect, incidental, special, or consequential damages. Seller’s remedies contained herein are not optional, but shall be Seller’s exclusive remedies.
30. WAIVER – No waiver of any of the provisions contained in a Purchase Order or these Terms and Conditions Direct shall be valid unless made in writing and executed by both parties. No charges beyond this contract price herein specified shall be allowed except with Purchaser’s written consent. Failure of Purchaser to insist upon strict performance shall not constitute a waiver of any of the provisions of a Purchase Order or these Terms and Conditions Direct or waiver of any other default.
31. ON SITE INSPECTION – Seller acknowledges that certain articles purchased hereunder may be incorporated into medical products subject to federal agency, other regulatory, customer, and Purchaser requirement for on-site inspection. Seller agrees that pursuant to notification made to it, inspection of site, product, and documentation will be allowed.
31. REGULATORY NOTIFICATION - Seller agrees to immediately notify NuVasive within 2 business days in the event the Seller receives any compliance/enforcement action notification (such as a result from inspection) from a Regulatory Agency, such as a United States FDA 483 Observation (i.e., FDA warning letter). Seller will update NuVasive and provide corrective action plans until the issue is fully resolved with the Regulatory Agency, including any close-out dates and letters provided by such Regulatory Agency.
NUVASIVE® PO TERMS AND CONDITIONS OF PURCHASE FOR INDIRECT GOODS AND SERVICES (“Terms and Conditions Indirect”):
1. ACCEPTANCE OF TERMS AND CONDITIONS INDIRECT – These Terms and Conditions Indirect become a binding contract and shall be deemed accepted on the earlier of when Supplier: (a) accepts by a written acknowledgement; (b) makes a delivery of conforming goods within the time specified herein; or (c) renders services within the time specified herein. Shipment of goods and/or commencement of services by Supplier shall constitute a waiver by Supplier of all terms and conditions contained in any acceptance form or any other communications which are inconsistent with these Terms and Conditions Indirect, unless specifically agreed to, in writing, by Purchaser. If Supplier objects to any of these Terms and Conditions Indirect, a counter-offer must be made within five (5) working days of the date of the Purchase Order. Purchase Orders without counter-offers are considered accepted after the 5th working day. Supplier will formally acknowledge the acceptance by counter signature of a Purchase Order when requested by Purchaser.
2. DELIVERY CONDITIONS – In supplying goods and/or services, Supplier is responsible for:
- Delivering the goods to the delivery point and/or performing the services by the date specified on the Purchase Order. If no date is specified then the delivery shall take place within thirty (30) days of the date of the Purchase Order. Time for delivery shall be of the essence.
- Delivering the goods in quality, quantity, size, description, and dimension specified in the Purchase Order.
- Ensuring the Supplier’s personnel entering the site perform the services or deliver the goods in a safe manner.
- Being aware of and complying with all applicable laws, rules and regulations, site specific standards and procedures, and all lawful directions and orders given by the Purchaser’s representative.
- Including a packing list for each Purchase Order shipped; data must include: Purchase Order number, manufacturer’s part number (if any), item identification, item quantity shipped, delivery point, and weight.
- Packing product in conformance with the requirements of carrier’s tariffs and in such a way to protect the product from damage during shipment. No extra charge shall be made for packaging materials unless authority is expressly incorporated in the Purchase Order.
- Paying freight charges unless otherwise noted on the Purchase Order. If noted on the Purchase Order that NuVasive will pay, it should be shipped FOB Destination via ground on the NuVasive Federal Express account unless otherwise stated in PO header/line item notes or by written advisement from Purchaser.
3. TITLE AND RISK – Title to and risk in the goods and/or services does not pass to Purchaser until Purchaser takes delivery, inspects and accepts the goods and/or services as set forth in the Purchase Order.
4. PRICE – The purchase sum for the goods shall be as agreed in the Purchase Order. Prices will be firm and cannot be changed or modified by Supplier without NuVasive’s express written agreement. Unless otherwise specified, the price is inclusive of:
- all charges for packaging, packing, hauling, storage, insurance and delivery in accordance with the
- the cost of any miscellaneous services of a kind which are commonly provided with the goods and
any miscellaneous items of a kind which are commonly used or supplied in the performance of
(and in conjunction with) the services; and
- the Supplier’s compliance with its obligations under a Purchase Order.
5. INVOICES – On delivery of the goods and/or completion of the services, the Supplier must provide to Purchaser an invoice including the required information. Invoices must:
- reference the Purchase Order and the relevant Agreement number (if any);
- include a detailed description of the delivered goods or performed services;
- have an individual reference number and/or name of the primary NuVasive point of contact;
- cover no more than one (1) Purchase Order; and
- be sent to [email protected] and/or submitted as specified on the Purchase
Any invoices received by NuVasive that do not correspond to the requirements set out above will be sent back for re-issuing.
6. PAYMENT – Payment will be made within forty-five (45) days from date of receipt of a conforming invoice and provided the goods and/or services have been correctly delivered and accepted by NuVasive. If written on the invoice and at Purchaser’s discretion, payment may be made within ten (10) days of invoice date in return for a 2% discount on the invoice total. The discount period will be calculated from the date on which Supplier will have complied with all requirements of the order and Purchaser has received an invoice in good order.
7. CHANGES to PURCHASE ORDERS (which include these Terms and Conditions Indirect) may be requested by Supplier but shall not be binding upon Purchaser unless approved by Purchaser in writing.
8. QUALITY REQUIREMENTS – Supplier must ensure that:
- all goods shall be checked by Supplier prior to delivery and shall be of good quality and material, free from defects and conform in all respects with Supplier’s specifications, drawings, and approved samples;
- the goods are new and of merchantable quality, fit for purpose and sufficient for the use intended by NuVasive;
- the Purchaser has the full benefit of any manufacturer’s warranties that may be applicable to the goods (and the Supplier must pursue any manufacturer’s warranties on the Purchaser’s behalf if the Purchaser so requests); and
- the services are performed with the professional skill, care and diligence expected of a skilled and experienced professional supplier.
9. INSPECTION AND REJECTION – After delivery of the goods and/or services by Supplier, NuVasive shall have thirty (30) days to inspect them for conformity with the Purchase Order. The goods and/or services shall not be deemed accepted until NuVasive has carried out an inspection to determine whether the goods and/or services conform to the provisions set out above. Use of the goods and/or services for the purpose of a compliance inspection shall not constitute acceptance thereof. If the goods and/or services do not wholly conform to the requirements, then NuVasive shall have the right, without prejudice to any other rights or remedies it may have hereunder, by law or otherwise, to reject and return the goods and/or services at the risk and expense of the Supplier who shall immediately take action to ensure conformity.
10. WARRANTY – Unless expressly otherwise set out in the Purchase Order, Supplier warrants for a period of twelve (12) months from the date of acceptance that the goods and/or services shall continue to materially conform to the quality requirements (defined above). In the event of non-compliance, Supplier shall promptly correct, replace, or modify the applicable goods and/or services without charge. If Supplier fails to correct such non-compliance then Supplier shall refund NuVasive all fees paid in connection with the non-compliant goods/services within thirty (30) days from the date of notice to Supplier, without limitation to any other remedies NuVasive may have under the terms of the Purchase Order, by law or otherwise.
11. REMEDIES – Without prejudice to any other right or remedy which NuVasive may have, if any goods and/or services are not supplied in accordance with the requirements, or the Supplier fails to comply with any of these Terms and Conditions Indirect or any terms of a Purchase Order, then NuVasive shall be entitled to avail itself of any one or more of the following remedies at its sole discretion: (i) to terminate the Purchase Order; (ii) to reject the goods and/or services (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the goods and/or services so returned shall be paid forthwith by the Supplier; (iii) to give the Supplier the opportunity at the Supplier's expense either to remedy any defect in the goods and/or services or to supply replacement goods and/or services and carry out any other necessary work to ensure that the terms of a Purchase Order are fulfilled within a timescale to be specified by NuVasive; (iv) to carry out or have carried out by a third party at the Supplier's risk and expense any work necessary to make the goods and/or services comply with the Purchase Order; and (v) to claim such damages as may have been sustained in consequence of the Supplier's breach of or non-compliance with the requirements of the Purchase Order.
12. CANCELLATION and TERMINATION – Purchaser may cancel a Purchase Order in whole or in part without liability to Purchaser, any time for its convenience, by notice to Supplier in writing. Purchaser must pay for any part of the goods delivered or services performed prior to the cancellation. On receipt by Supplier of such notice, Supplier shall, and to the extent specified therein: (a) cease performing the services; (b) place no further orders for materials, equipment or services related to the performance of the services; (c) deliver to NuVasive all documents, work product and other materials (including the deliverables), whether or not complete, prepared by or on behalf of Supplier in the course of performing the services for which NuVasive has paid; (d) return to NuVasive all NuVasive property, equipment or materials in its possession or control; (e) remove any Supplier-owned property, equipment or materials located at NuVasive’s locations; and (f) on a pro rata bases, repay all fees and expenses paid in advance for any services that have not been provided. If the Supplier has not shipped the goods at the time of cancellation, the Supplier must stop manufacture of the goods in accordance with and to the extent specified in the notice, and do everything possible to mitigate any costs incurred in relation to the goods.
13. CONFIDENTIAL INFORMATION – Supplier acknowledges that Supplier may become aware of or have access to Confidential Information of NuVasive. Supplier will protect and hold NuVasive’s Confidential Information in trust and confidence, will not use such Confidential Information in any manner or for any purpose other than as necessary for the purposes of fulfilling the Supplier’s obligations under the Purchase Order, and will not disclose any such Confidential Information to any third party without first obtaining NuVasive’s express written consent on a case-by-case basis. Supplier must, within fourteen (14) working days after a direction by the Purchaser to do so, return or destroy, at Purchaser’s discretion, all Confidential Information in Supplier’s possession. Supplier may disclose Confidential Information of NuVasive to the extent such disclosure is reasonably necessary in the following instances: (i) complying with applicable court orders or applicable laws, rules or regulations; and (ii) disclosure to Supplier’s affiliates, employees or agents having a reasonable need to know such Confidential Information for the performance of the Purchase Order. In addition, in the event Supplier is required to make a disclosure of NuVasive’s Confidential Information pursuant to the preceding clause (i), Supplier will, except where impracticable, give reasonable advance notice to NuVasive of such disclosure and, at NuVasive’s request and expense, cooperate with NuVasive’s efforts to secure confidential treatment of such Confidential Information.
14. INTELLECTUAL PROPERTY – The Supplier hereby grants the Purchaser a free, transferable right of use without restriction as to territory or time in any know-how and inventions of the Supplier that are capable of being protected and on which the goods/services are based or in which these are embodied or which have come into being through development processes during the contractual relationship. The Supplier shall organizationally ensure that it can meet its obligation to grant the right of use.
15. COMPLIANCE with LAWS – Supplier warrants that it complies with all applicable laws, orders, and regulations pertaining to equal employment opportunity (specifically Executive Order 11246), waste management, the environment, human trafficking, slavery, forced labor and/or child labor, and occupational safety and health regulations in its operations. Supplier will comply with 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. In addition, and to the extent not exempt, Supplier will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. To the extent not exempt, Supplier will also comply with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496). Upon request by NuVasive, Supplier will provide all information necessary to demonstrate to NuVasive compliance with all applicable laws and regulations. Supplier will notify NuVasive immediately upon becoming aware of any concerns relating to compliance with this Section.
16. INDEMNIFICATION & LIMITATION OF LIABILITY – Supplier will indemnify, protect, hold harmless, release and defend NuVasive, its affiliates and their respective directors, officers, employees and agents (the “NuVasive Indemnified Parties”) from and against any and all losses, damages, liabilities, judgments, fines, amounts paid in settlement, expenses and costs of defense (including reasonable attorneys’ fees) resulting from any claim, action or proceeding brought or initiated by a third party against any NuVasive Indemnified Party to the extent that such claim, action or proceeding arises out of: (a) negligence (whether sole, concurrent, joint, active, or passive), gross negligence or willful misconduct of Supplier; (b) Supplier’s breach of the Purchase Order; (c) Supplier’s performance of the services; (d) defective workmanship, quality or materials of the goods; or (e) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the goods and/or services. Supplier expressly acknowledges that the indemnity obligations set forth in these Terms and Conditions Indirect survive the termination of a Purchase Order. To the maximum extent permitted by applicable law, NuVasive shall not be liable to Supplier for any indirect, special, incidental, punitive or consequential damages. In no event shall NuVasive’s liability in any way arising out of a Purchase Order exceed the amount payable by NuVasive under such Purchase Order.
17. INSURANCE – Insurance shall be procured and maintained by the Supplier for the duration of these Terms and Conditions Indirect against claims for injuries to persons or damages to property which may arise from or in connection with the purchased goods or performance of the services hereunder by the Supplier, its agents, representatives, employees or subcontractors. Unless otherwise mutually agreed upon, Supplier shall maintain, at the minimum, the following types and amounts of insurance at its own cost and expense:
- Workers' Compensation Insurance complying with all applicable laws and including Employers' Liability Insurance of $1,000,000.00 per accident, including coverage for occupational disease; and
- Commercial General Liability (CGL) Insurance on an occurrence form covering bodily injury and property damage, including broad form coverage for contractual liability, and including products and completed operations coverage for a minimum of two years, with a combined single limit of not less than $1,000,000.00 per occurrence and not less than a $2,000,000.00 annual aggregate limit.
For any claims related to the Purchase Order and these Terms and Conditions Indirect, the Supplier’s insurance coverage shall be primary insurance as respects NuVasive, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by NuVasive, its officers, officials, employees, or volunteers shall be excess of the Supplier’s insurance and shall not contribute with it. NuVasive, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Supplier including materials, parts, or equipment furnished in connection with such work or operations.
18. SETOFF – Supplier agrees that Purchaser may, at any time and from time to time, set off, recoup or credit any amount owed to Supplier hereunder against any amounts owed by Supplier to Purchaser or any affiliate of Purchaser during which time Supplier shall continue performance hereunder while such setoff or any adjustment relating to such setoff is being made. For the purposes hereof, affiliate means any parent corporation, subsidiary corporation, or corporation or other entity under common ownership or control with Purchaser.
19. GOVERNING LAW – The Purchase Order and these Terms and Conditions Indirect are governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Any legal suit, action or proceeding arising out of or related to the Purchase Order, these Terms and Conditions Indirect, or the services provided hereunder shall be instituted exclusively in the federal courts of the United States or the State of California in each case located in the county of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
20. INDEPENDENT CONTRACTORS – It is understood and acknowledged that Supplier will provide the goods and/or services to NuVasive in the capacity of an independent contractor and not as an employee or agent of NuVasive. In addition, Supplier has advised its personnel that neither Supplier nor any of its personnel is or shall be an employee of NuVasive. NuVasive shall have the right to inspect the work of Supplier as it progresses solely for the purpose of determining whether the work is completed according to the Purchase Order. Neither Supplier nor any Supplier personnel has the authority to commit, act for or on behalf of NuVasive or to bind NuVasive to any obligation or liability. Neither Supplier nor any Supplier personnel shall be eligible for or receive any employee benefits from NuVasive, and Supplier shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums and all similar taxes and fees relating to the fees earned by Supplier hereunder. NuVasive has no obligation to provide Worker’s Compensation coverage for Supplier or Supplier personnel or to make any overtime payments at any rate other than the rate agreed to in the Purchase Order.
21. ASSIGNMENT – Supplier shall not, without first obtaining written consent of the Purchaser, in any manner assign or sub-contract all or any part of a Purchase Order or these Terms and Conditions Indirect.
22. FORCE MAJEURE – Neither party shall be liable for failure to perform its obligations under a Purchase Order if such failure results from circumstances which are beyond such party’s reasonable control (including but not limited to, any act of God, any acts of terrorism, failure of power, flood, lightning, fire, strikes not reasonably avoidable by the relevant party, act or omission of government, local or district authorities, public telecommunications operators and other competent authorities, war, military operations or riot) provided that the other party is notified in writing of these circumstances by the affected party as soon as it becomes aware of the occurrence of such event and that the affected party uses all reasonable endeavors to prevent, avoid, overcome or mitigate the effects of such cause.
23. PUBLICITY – Neither party shall publish any advertising, marketing, sales promotion, press release or other publicity matter relating to a Purchase Order and these Terms and Conditions Indirect without the prior written consent of the other party.
24. MISCELLANEOUS – Failure or delay by a party in enforcing or partially enforcing any provision of a Purchase Order or these Terms and Conditions Indirect shall not be construed as a waiver of any of its rights thereunder. No change, modification or extension of these Terms and Conditions Indirect or any Purchase Order shall be effective unless it is expressly agreed and signed by the parties in a written document. If any provision set out herein is found by any competent jurisdiction to be wholly or partly illegal or invalid, it shall be deemed severable and the remaining provisions shall continue in full force and effect.