This purchase 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, from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by Seller under the Order; or (c) the passage of ten (10) days after Seller’s receipt of the Order without written notice to Buyer that Seller does not accept. 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 shall deliver the Goods and/or perform the Services at the delivery point (the “Deliver Location”) and on the date(s) specified in this Order (the “Delivery Date”). If no delivery date is specified, Seller shall deliver in full within a reasonable time of receipt of the Order. Timely delivery is of the essence. If Seller fails to deliver the Goods or Services in full, on the Delivery Date, Buyer may terminate the Order immediately.
Seller shall sufficiently mark each package, packing slip, bill of lading and invoice to easily enable the Buyer to identify the Goods purchased. Buyer reserves the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the Goods if it determines the Goods are defective or nonconforming. If Buyer requires replacement of the Goods, pursuant to Section 4, Seller shall promptly replace the nonconforming Goods and pay for all transportation costs. If Seller fails to timely deliver replacement Goods or Service, the situation will be escalated by the Seller to senior management within the Seller’s organisation. Latent defects to Goods or Services that arise after the agreed Inspection Period will be subject to good faith negotiations at any stage of the life expectancy of the Goods or Service and be based on the relevant specification at the time of Order acceptance. Any over-shipment may be returned by Buyer at Seller’s expense. Buyer shall have the right to enter Seller’s facility at reasonable times to inspect the facility, Goods, work-in-process, materials, production records, and any property of Buyer covered by this Order. Buyer’s inspection of the Goods and/or production records, whether during manufacture or prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished Goods. Buyer shall have no obligation to perform incoming inspections of the Goods and Seller waives any rights to require Buyer to conduct such inspections.
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 has breached any of the Terms herein. If the Seller becomes insolvent, commences or has commenced by it or against its bankruptcy proceedings, receivership, reorganisation, or assignment for the benefit of creditors, then the Buyer may terminate this Order. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods or Services received and accepted by Buyer prior to the termination. Buyer shall make no payments for finished Goods, Services, work-in-process, or raw materials fabricated or procured by Seller in amounts in excess of 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 and shall not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for 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 from termination of the Order Within sixty (60) days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit 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 Date, all Goods, Services or Goods furnished in connection with Services will: (a) be new and free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) are in good working order and condition; (d) have been performed or produced in a workmanlike manner; (e) does not infringe, violate or misappropriate any patent, copyright or other intellectual right of a third party; and (f) be fit for their intended purpose and operate as intended. If Buyer gives Seller notice of noncompliance, Seller shall, at its own cost and expense, promptly replace or repair the nonconforming Goods or Services. Seller further represents and warrants that the manufacture, production, installation, sale, and use by Buyer are in compliance with any and all material applicable 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 Seller is providing Services to Buyer under this Order, Seller agrees to provide them in accordance with the terms of the Order. Such Services shall be performed by competent personnel, shall be of professional quality, and shall be consistent with generally accepted industry standards for the performance of such Services. Seller shall ensure that it has all necessary resources to provide or perform the Services, including, without limitation, properly trained and licensed personnel, machinery, equipment, and materials.
Seller warrants to Buyer that the goods (the “Goods”) supplied at the time of Delivery will comply with the Specifications, standards and Service levels as specified by written quote and/or technical drawing (notwithstanding current drawing version) endorsed by the Buyer. The Seller must communicate (by way of written notice) to the Buyer of any manufacturing, operations, or engineering changes associated with the goods (the “Goods”). Prior to implementing any changes, the Buyer will acknowledge acceptance of the changes. The Change notice from the Seller must include at a minimum; identification of the change, reason(s) for change, description of change, list of documents affected, and critical dates related to the change(s). Discussion of the problem and determination of what action (if any) should be taken prior to the goods (the “Goods”) being delivered to the Buyer. No change of any kind may be made without written approval of Buyer. Changes include those considered reportable and non-reportable. Buyer reserves the right at any time 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, 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 its obligations or Seller’s negligence, wilful misconduct or breach of the Terms of this Order or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
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 documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief 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 shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to the Seller at the time of disclosure; or (c) rightfully and legally obtained by the Seller on a non-confidential basis from a third party. To the extent Confidential Information contains personal data, Seller shall maintain appropriate administrative, physical, and technical controls necessary to safeguard sensitive and important information to act as countermeasures against its unauthorised disclosure or use. 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 shall be made in accordance with the Terms of this Order. The Order number must appear on all documents pertaining to the Order, invoices, packing lists, correspondence, and all shipping documents. Seller shall not substitute material or ship more than the quantity ordered to a percentage of +/- 5%.
Unless specified otherwise on the face of the Order, the prices are exclusive of Taxes.
Unless otherwise specified in the Order, risk of loss of the Goods remains with Seller and title will not pass to Buyer until the Goods are delivered to the Delivery Location and Buyer has inspected and accepted such Goods.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, flood, fire, earthquake, explosion, epidemic, war, invasion, terrorist act, riot, strike, or embargoes. 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 giving written notice to Seller.
The terms found on the face of this Order shall govern over the terms and conditions herein. Any separate written overriding agreement signed by both parties shall govern over the terms of the Order.
Seller expressly waives any claim against Buyer that any Seller indemnification event relating to alleged infringement arose out of compliance with Buyer’s specification. Seller agrees that: (a) Buyer or Buyer’s subcontractor has the right to repair, reconstruct, or rebuild the specific Goods delivered under the Order without payment of any royalty to Seller; and (b) that parts manufactured based on Buyer’s drawings and/or specifications may not be used for its 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: (a) workers’ compensation: statutory limits for the state(s) in which the Order is to be performed (or evidence of authority to self-insure); (b) employer’s liability: $500,000 per accident for bodily injury by accident and $500,000 per employee for bodily injury by disease; (c) commercial general liability covering liability arising from premises, operations, independent contractors, products/completed operations, contractual liability, personal injury and advertising injury, and broad form property damage: $2,000,000 per occurrence; (d) automobile liability (including owned, non-owned and hired vehicles): $1,000,000 per accident; and (e) if applicable, Cyber/Privacy Liability insurance with limits of not less than $5,000,000 for each occurrence and an annual aggregate of $5,000,000 covering claims involving privacy violations information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alterations of electronic information, extortion and network security for such length of time as necessary to cover any and all claims arising out of or relating to the work performed herein. The foregoing coverages and limits are to be considered as minimum requirements and in no way limits the liability of Seller. 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 to perform 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. Buyer’s Property shall at all times be properly housed and maintained by Seller, at its expense, shall not be used by Seller for any purpose other than the performance of the Order, shall be deemed to be personally liable; shall be conspicuously marked by Seller as the property of Buyer; shall not be commingled with the property of Seller or with that of a third person; and shall not be moved from Seller’s premises without prior written acceptance or by Buyer. Buyer shall have the right to enter Seller’s premises during normal business hours and upon prior notice to inspect such 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 in accordance with the Order.
Buyer and Seller each shall be responsible for ensuring that the performance of their respective obligations under the Order complies with all applicable laws, rules, and regulations, whether in effect now or in the future. Additionally, Seller, and any Goods or Services supplied by Seller, shall comply with all applicable material laws, rules, regulations, orders, conventions, ordinances, or standards of the country(ies) of destination or that relate to the manufacture, labelling, transportation, importation, exportation, licensing, approval, or certification of the Goods or Services, including, but not limited to, those relating to environmental matters, data protection and privacy, ethics, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety, motor vehicles safety, anti-slavery, human trafficking, and sourcing or processing of conflict minerals. Seller shall adhere to Cook’s Supplier Code of Conduct and other applicable Buyer policies. Seller agrees to give Buyer access to information that would allow Buyer to verify that Seller is in compliance with all such laws, regulations, and requirements. Seller shall inform Buyer of the country of origin (for customs purposes) of Seller’s product and upon request, origin qualification status under international free trade agreements and/or AU or US Government procurement preference programs. At Buyer’s request, Seller shall inform Buyer of AU and US export control jurisdiction and classification of Seller’s Goods. 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. Each party shall notify the 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 because such goods may violate 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 coordinating such recall. Seller shall be solely responsible for all costs and expenses of such recall. 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.
The failure of either party at any time to require performance by the other party of any provision of the Order shall in no way 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 may not assign or delegate its rights or obligations under the 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. Any purported or attempted assignment, delegation or subcontracting without the prior written acceptance by Buyer shall have no effect and shall entitle Buyer to terminate the Order without penalty upon notice to Seller.
This Order will be interpreted in accord 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 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 Group 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.
Revised December 2022
