This purchase order (the “Order”) is an offer by the company identified on the face of this purchase order (the “Buyer”) for the purchase of the goods (the “Goods”) or services (the “Services”) specified, herein from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”).Seller’s acceptance of this Order will occur upon the earliest of: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) Seller’s performance under the Order; or (c) the passage of ten (10) days following Seller’s receipt of the Order without Seller providing written notice of rejection to the Buyer. This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order, unless a separate overriding written contract has been entered into and signed by the parties. The Order expressly limits Seller’s acceptance of the terms of the Order. These Terms expressly exclude any of Seller’s terms and conditions of sale or any other document issued by Seller in connection with this Order.
Seller agrees to deliver the Goods and/or perform the Services at the location specified in the Order (the “Delivery Location”) and on the date(s) specified (the “Delivery Date”). In the absence of a specified Delivery Date, Seller shall deliver in full within a reasonable time of receipt of the Order. Timely delivery is of the essence, and any delay in delivery shall entitle Buyer to immediately terminate the Order. If Seller fails to deliver all or any part of the Goods or Services on the Delivery Date, Buyer reserves the right to terminate the Order immediately.
The price of the Goods or Services is as specified on the face of this Order (the “Price”). Seller shall issue an invoice to the Buyer within thirty (30) days of delivery or completion of Services. Unless otherwise stated in the Order, Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days from date of invoice, or within sixty (60) days after a Service is performed, except for any amounts disputed by the Buyer in writing. In the event of a dispute the parties agree to resolve the issue promptly and in good faith, while Seller continues to perform its obligations under the Order, dispute notwithstanding. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller under this or any other agreement. Payment of an invoice does not constitute evidence or admission of the Goods or Services meeting the requirements of the Order. If Seller is unwilling or unable to deliver Goods conforming to the specifications or scheduled delivery dates, or supply Services as agreed upon in the Order, Buyer may cancel the Order, in whole or in part, and procure substitute Goods or Services from a third party. In such case Seller shall reimburse Buyer for all excess costs, including but not limited to expedited shipping costs and any price difference between Seller’s and the third party’s pricing for the same Goods or Services.
The price of the Goods or Services is the price stated on the face of this Order (the “Price”). Seller shall invoice Buyer for the Order within thirty (30) days of delivery. Unless otherwise stated in the Order, Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days from date of invoice or within sixty (60) days after a Service is performed, except for any amounts disputed by the Buyer in writing. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller. Payment of an invoice is not evidence or admission that the Goods or Services meet the requirements of the Order. If Seller is unwilling or unable to supply Goods conforming to specifications in accordance with scheduled delivery dates, or supply Services as agreed upon by Seller and Buyer, Buyer may cancel the Order, in whole or in part, and obtain substitute Goods or Services from a third party, in which case Seller shall reimburse Buyer for any and all excess costs (including but not limited to expedited shipping costs and the difference between the price Buyer pays to the third party supplier and the price that Buyer would have paid to Seller if Seller had timely supplied the conforming Goods or Services).
Buyer may terminate this Order, in whole or in part, for any reason upon thirty (30) days prior written notice to Seller. In addition to any remedies provided herein, Buyer may terminate this Order with immediate effect, either before or after acceptance of Goods or Services, if Seller breaches any of the Terms herein. Buyer may also terminate this Order if the Seller becomes insolvent, files for or is subject to bankruptcy proceedings, receivership, reorganisation, or assignment for the benefit of creditors. Under termination for any reason, Seller’s sole remedy will be payment for the Goods or Services received and accepted by Buyer prior to the termination. Buyer will make no payments for finished Goods, Services, work-in-process, or raw materials fabricated or procured by Seller in amounts more than those authorised in delivery releases, nor for any undelivered Goods that are in Seller’s standard stock or that are readily marketable. Payments made under this Section shall not exceed the aggregate price payable by Buyer for finished Goods or Services that would be produced or performed by Seller under authorised delivery or release schedules outstanding at the date of termination. Except as provided in this Section, Buyer shall not be liable for any other costs arising from termination, including but not limited to loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortised depreciation costs, or general and administrative burden charges. Within sixty (60) days from the effective date of termination, Seller shall submit a comprehensive termination claim with sufficient supporting data permitting Buyer’s audit and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller upon request and during normal business hours.
Seller warrants to Buyer that at the time of delivery, all Goods, Services or Goods furnished in connection with Services will:
If Buyer notifies Seller of noncompliance, Seller will, at its own cost, promptly replace or repair the nonconforming Goods or Services. Seller further represents and warrants all Goods and Services are in compliance with any and all applicable material laws, rules, and regulations. All warranties shall survive any inspection, delivery, or acceptance of the Goods or Services, or payment for such delivered or performed, and such warranty shall run to Buyer, Buyer’s customers, and/or Buyer’s successors and assigns, and shall not be deemed exclusive of any other warranties, express or implied. If Services are provided under this Order, Seller agrees to provide them in accordance with the terms of the Order. Such Services shall be performed by competent personnel, at a professional standard, and in accordance with industry standards and local laws. Seller is responsible for ensuring that it has all necessary resources including, without limitation, properly trained and licensed personnel, machinery, equipment, and materials to provide or perform the Services.
Seller warrants to Buyer that the Goods supplied at the time of Delivery will comply with the specifications, standards and service levels as specified by applicable written quote/s and/or technical drawing/s (notwithstanding current drawing version) endorsed by the Buyer. Seller must notify (by way of Supply Change Notification Request form) the Buyer of any manufacturing, operations, or engineering changes associated with the Goods prior to implementation. The Change notice from the Seller must include at a minimum:
For Goods/Services where manufacturing, operations, or engineering specifications are stipulated by Buyer (for example a custom made Good), Buyer must acknowledge acceptance of any such changes before implementation and prior to the Goods being delivered to the Buyer, furthermore no change relating to such Goods/Services may be made without written approval of Buyer. Changes include those considered reportable and non-reportable. Buyer reserves the right to direct changes, or cause Seller to make changes, to drawings and specifications of the Goods or to otherwise change the scope of the work covered by any underlying contract at any time, including work with respect to such matters as inspection, testing, or quality control, and Seller agrees to promptly make such changes.
Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or occurring in connection with Seller’s performance of the Order, negligence, wilful misconduct or breach of the Terms. This includes any claims that the Goods infringe upon or misappropriate the intellectual property rights of any third party. Seller may not settle any claim without obtaining prior written consent from Buyer or the relevant Indemnitee.
All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order (“Confidential Information”) is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorised by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all materials and documents received from Buyer. Buyer is entitled to injunctive relief and damages for any violation of this Section. Accordingly, Buyer has the right to seek equitable and injunctive relief to prevent the unauthorised disclosure of any of Buyer’s Confidential Information, as well as such damages or other relief as is occasioned by such unauthorised use or disclosure. This Section does not apply to information that is:
Seller shall also maintain appropriate safeguards to protect any personal data contained within the Confidential Information, ensuring that it is not disclosed or used without Buyer’s consent. Seller shall not in any manner, without first obtaining the prior written acceptance by Buyer, advertise or publish the fact that Seller has provided, or contracted to provide, Buyer the Goods or Services covered by the Contract, or use any trademarks or trade names of Buyer in Seller’s advertising or promotional materials.
Delivery must be made in accordance with the terms specified in this Order. The Order number must appear on all documents pertaining to the Order, including invoices, packing lists, correspondence, and shipping documents. Seller shall not substitute materials or ship quantities exceeding the ordered amount to a percentage of ±5%.
Unless specified otherwise on the face of the Order, the prices are exclusive of Taxes. Seller shall bear and pay all applicable taxes which are based on or measured by net income, gross income, or gross receipts including any withholding taxes levied against Seller. If Seller is required by law to collect sales tax or VAT (including any gross receipts tax imposed similar to a sales tax or VAT) from Cook on behalf of any taxing jurisdiction, Seller shall provide to Cook invoices which separately state and clearly indicate the amount of tax and Cook shall remit any such tax to Seller. Any applicable sales tax or VAT (or gross receipts tax imposed similar to a sales tax or VAT) is required to be included on the original invoice from Seller and shall not be included on any subsequent invoices or billings. Seller shall have the responsibility of complying with all applicable foreign, national, state, or local laws regarding value-added tax, sales tax, or substitutes therefor including registration, collection of taxes, and the filing of returns where applicable. Notwithstanding whether Seller must collect sales tax from Cook, Seller shall state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which goods or services were provided.
Unless otherwise specified in the Order, risk of loss for the Goods remains with Seller, and title will not pass to Buyer until the Goods are delivered to the Delivery Location, inspected by Buyer and accepted. The risk and title transfer occurs only after Buyer’s inspection and formal acceptance of the Goods.
Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent that such delay or failure is caused by a Force Majeure Event. A “Force Majeure Event” refers to any event beyond the reasonable control of the affected party that could not have been foreseen or prevented by such party’s due diligence. Examples of Force Majeure Events include, but are not limited to, natural disasters (e.g., floods, fires, earthquakes), acts of terrorism, war, acts of God, strikes, government restrictions, epidemics, or other unforeseen circumstances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimised and resume performance under the Order. If a Force Majeure Event prevents Seller from performance for a continuous period of more than fifteen (15) business days, Buyer may terminate this Order immediately by providing written notice to Seller.
In the event of a conflict between the terms on the face of this Order and these Terms and Conditions, the terms on the face of the Order shall govern. If a separate, overriding agreement has been signed by both parties, that agreement shall take precedence over the terms of this Order.
Seller expressly waives any claim that Seller indemnification events relating to alleged intellectual property rights infringements arose out of compliance with Buyer’s specification. Seller agrees that Buyer or Buyer’s designated agent has the right to repair, reconstruct, or rebuild the specific Goods delivered under the Order without payment of any royalty to Seller. Additionally, Seller acknowledges that any parts manufactured based on Buyer’s drawings and/or specifications may not be used for Seller’s own use or sold to third parties without Buyer’s express, written authorisation. To the extent that this Order is issued for the creation of copyrightable works, the works shall be considered “works made for hire.” To the extent that the works do not qualify as “works made for hire,” Seller hereby assigns and agrees to assign to Buyer all rights, titles, and interests in all copyrights and moral rights therein.
Seller shall maintain insurance coverage with insurance carrier that shall have at minimum an AM Best rating of “A” in the following amounts:
The foregoing coverages and limits are to be considered as minimum requirements and in no way limits the Seller’s liability. Seller shall furnish to Buyer either a certificate showing compliance with these insurance requirements or current copies of all insurance policies within ten (10) days of Buyer’s written request. The certificate shall provide that Buyer shall receive 30 days prior written notice from the insurer of any cancellation or reduction in the amount or scope of coverage. Buyer’s furnishing of certificates of insurance or purchase of insurance shall not release Seller of its obligations or liabilities under the Order.
All supplies, materials, tools, jigs, dies, gauges, fixtures, moulds, patterns, equipment, and other items furnished by Buyer, either directly or indirectly, to Seller for the performance of the Order, or for which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer and held by Seller on a bailment basis (“Buyer’s Property”). Seller shall bear the risk of loss of and damage to Buyer’s Property.
Seller agrees to:
Buyer shall have the right to enter Seller’s premises during normal business hours and upon prior notice to inspect Buyer’s Property and Seller’s records with respect thereto. Upon the request of Buyer, Buyer’s Property shall be immediately released to Buyer or delivered to Buyer by Seller.
Both Buyer and Seller shall ensure that their respective obligations under this Order comply with all applicable laws, rules, regulations, and standards, whether current or future. Seller’s Goods or Services must comply with all relevant laws and regulations of the country(ies) of destination, including but not limited to those concerning:
Seller shall comply with Cook’s Supplier Code of Conduct and other applicable Buyer policies. Seller agrees to provide Buyer access to information that verifies that Seller is in compliance with all such laws, regulations, and requirements.
Seller shall inform Buyer of:
Seller shall be solely responsible for obtaining all regulatory approvals, permits, and licenses necessary for the sale, marketing and distribution of the Goods and Services. Both parties shall notify each other of new regulatory requirements of which it becomes aware which are relevant to the manufacture, use, or sale and distribution of the Goods or Services under this Order and which are required by the TGA or other applicable regulatory authority. At Buyer’s request, Seller shall certify in writing its compliance with the foregoing, provided that by submitting a response to a Request for Quotation, Seller certifies that it has read, understands, and is in compliance with this Section. If Seller is required to recall any Goods due to violation of local, state, or federal laws or regulations, the laws or regulations of any applicable foreign government or agency, or Seller elects to institute a voluntary recall, Seller shall be responsible for all costs and expenses and the coordination of such recall. Additionally, if it is necessary for Buyer to recall Goods due to Seller’s recall, Seller is responsible for Buyer’s costs and expenses related to such recall.
Seller agrees to comply with any existing quality agreements and warrants that the Goods supplied at the time of delivery will meet the quality standards outlined in the Supplier Code of Conduct as well as the quality values specified in the Cook Medical Global Code of Conduct. Should Seller be unable to operate in accord with the Codes of Conduct, Seller must immediately notify Buyer in writing.
If Seller is unwilling or unable to provide Goods that conform to the agreed quality specifications, or supply Services as agreed, Buyer may, at its sole discretion, cancel the Order, in whole or in part, and procure substitute Goods or Services from a third party. In such case Seller shall reimburse Buyer for any and all additional costs incurred, including but not limited to expedited shipping costs and the difference between the price Buyer pays to the third-party supplier and the price Buyer would have paid to Seller for the conforming Goods or Services.
The failure of either party to enforce any provision of the Order, or to require the other party’s performance under any provision, shall not waive or affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of the Order constitute a waiver of any succeeding breach of the same or any other provision.
Seller shall not assign, delegate, or transfer its rights or obligations under this Order without the prior written acceptance by Buyer. A change of control by Seller shall be deemed an assignment hereunder and shall also be prohibited without the prior written acceptance by Buyer. Seller may subcontract its obligations only with the prior written acceptance by Buyer provided that such subcontractor abides by these same terms and conditions of the Order. Any purported or attempted assignment, delegation or subcontracting without the prior written acceptance by Buyer shall be void and shall entitle Buyer to terminate the Order without penalty upon notice to Seller.
This Order shall be governed by and construed in accordance with the laws of Queensland, Australia without regard to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly disclaimed by the Parties with respect to this Agreement and the transactions contemplated hereby.
Seller and Buyer are independent contracting parties and nothing in the Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
Buyer has a comprehensive global Ethics & Compliance program and is committed to ensuring that our global operations comply with our own internal policies relating to human rights. Learn more about the way we do business and read the Cook Medical Global Code of Conduct, which describes the value we strive to achieve as a corporate citizen. Buyer established a Supplier Code of Conduct, providing guidance on Seller interactions with Cook Medical Holdings LLC and its affiliates. The requirements outlined in the Code are designed to improve business relationships, help ensure ethical and legal compliance, foster an environment of partnership, and create value in our business interactions. If Seller is unable to operate in accord with the codes of conduct, the Seller shall immediately notice the Buyer.
In the event the Supplier processes the personal data of Cook employees or other natural persons during the performance of the Services, such personal data processing shall be carried out in accordance with the terms set forth in the Data Processing Agreement. This, along with Cook’s Data Privacy Notice is available at: https://www.cookgroup.com/global-data-protection-notice-for-suppliers/. Notwithstanding the foregoing, to the extent that the Parties are considered separate independent controllers of certain personal data processed for their own independent purposes, each Party agrees to comply with its obligations under applicable data protection laws. For the purposes of this clause, the terms “controller”, “processor”, and “personal data shall have the meanings ascribed to them in the Data Protection Laws defined in the attached Data Processing Agreement.
If Supplier becomes aware of an incident involving unauthorised access to any Cook Data stored on Supplier’s equipment or in Supplier’s facilities; or access to such equipment or facilities, where in either case such access results in loss, disclosure, or alteration of Cook Data (each a “Security Incident”), Supplier will promptly:
For purposes of this Section, “Cook Data” refers to any Cook confidential or sensitive information (including personal data) that would result in a high or moderate risk of financial loss, harm or legal liability if such information is disclosed without authorisation.
It is the Seller’s responsibility to stay up to date with any changes, updates, or amendments to these Terms and Conditions. If the Seller requires any specific agreement, exception, or modification to these Terms and Conditions, it is the Seller’s duty to promptly notify the Buyer and request such an agreement in writing. The Buyer will only consider any specific agreement or modification if requested by the Seller and will not be bound by any terms outside of this Agreement unless explicitly agreed upon in writing. Failure by the Seller to request a specific agreement or notify the Buyer of necessary changes may result in the Seller being held to the existing Terms and Conditions without exception.
Revised December 2024
