Terms and Conditions of Purchase
These Terms and Conditions of Purchase (“Terms and Conditions”) are part of each purchase order that Sybron Dental Specialties, Inc. (“SDS”), or any Affiliate of SDS, issues. In these Terms and Conditions,“Buyer” means either SDS or an Affiliate of SDS, as specified in the purchase order,“Seller” means the seller named in the order, “goods” mean the goods that Buyer is to purchase from Seller, as described in the purchase order, “Affiliate of SDS” means at any time any corporation, limited liability company, partnership or other entity that is controlled by SDS, and “control” of an entity means the possession by SDS, directly or indirectly, of the power to direct or cause the direction of the management or policies of the entity.
Any purchase order issued by Buyer is subject to these Terms and Conditions. Any of Seller’s terms of sale, which are in conflict or inconsistent with, or in addition to these Terms and Conditions, shall not be binding on Buyer unless accepted in writing by Buyer. Under no circumstances shall any conflicting terms of Seller apply. No oral agreement or other understanding, unless pursuant to a pre-existing written agreement between the parties, shall in any way modify any purchase order issued by Buyer, or these Terms and Conditions. Seller’s action in (a) accepting any purchase order issued by Buyer, or (b) delivering goods called for under the purchase order shall constitute an unconditional acceptance of these Terms and Conditions.
2 PRICE, TAXES AND PAYMENT:
Unless otherwise agreed to between Seller and Buyer, the price for the goods shall be as specified in the purchase order. Unless otherwise provided in a purchase order covering the goods, or otherwise specified by statute, Seller shall pay any federal, state, local, EU, Czech Republic, Italian or Swiss sales tax due, transportation tax, or other excise tax, custom duty, or levy, including foreign, provincial, and local taxes, which may be imposed upon the goods ordered by Buyer, by reason of their sale or delivery. Terms of payment are as specified in the purchase order, or as otherwise previously arranged between Buyer and Seller. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer by reason of any counterclaim arising out of any transaction by Buyer with Seller.
Unless otherwise agreed to between Buyer and Seller in writing or otherwise specified in the purchase order, Seller shall deliver the goods F.O.B. Buyer’s facility identified in the purchase order (if both Buyer and Seller and located in the United States), or FCA (Incoterms 2000) (if either, or both of, Buyer or Seller are located outside of the United States). Time of delivery is of the essence and the delivery dates specified by Buyer in any purchase order shall not be extended or excused for any reason, except as provided in the Force Majeure section below. Title to, and risk of loss for, the goods will remain with Seller until the goods are received at Buyer’s facility, regardless of the method of delivery.
4 INSPECTION AND REJECTION OF GOODS:
All goods furnished under any purchase order issued by Buyer are subject to inspection and acceptance at Buyer’s facility. Except to the extent limited or allowed under the law of the jurisdiction in which Buyer is located, Buyer shall be allowed a reasonable period of time to inspect the goods and to notify Seller of any non-conformance. Defective goods shall be rejected or charged back to Seller at the price indicated in the purchase order. Buyer shall return rejected goods to Seller, at Seller’s expense. Seller shall pay all shipping charges to return and replace the rejected goods.
In addition to any warranties imposed under the laws of the state or country into which the goods may be shipped, Seller warrants that, for a period of two (2) years from the date the goods are delivered to Buyer, the goods furnished under any purchase order issued by Buyer shall (a) be of good quality and workmanship, (b) be free of defects of material and workmanship, (c) conform to the specifications, drawings, approved sample, if any, or other description relating to the goods, (d) be merchantable and fit for the intended purpose, and (e) perform as specified. Except to the extent such remedy may be limited by the laws of the state or country into which the goods may be shipped, in the event any goods furnished under any purchase order issued by Buyer fail to comply with any of the foregoing requirements, Seller shall, at its expense, but at Buyer’s option, and promptly upon receipt of written notice from Buyer regarding such failure, remove such goods and repair or replace them with goods that fully meet the requirements of the purchase order. This warranty shall run to customers and users of Buyer’s goods incorporating Seller’s goods. Supplier must obtain written approval from Buyer before applying any change to the goods supplied or the tools used to produce the goods.
Seller shall assume the defense of any patent infringement suit or claim brought against Buyer or its customers because goods sold by Seller are alleged to infringe an article or composition claim in any United States or foreign patent and shall hold Buyer or its customers harmless from all judgments, decrees, settlements, costs and other legal expenses resulting from such suit or claim, provided that Buyer or its customer shall promptly turn over to Seller all notices of infringement or other legal documents served on them relating to such alleged infringement.
7 APPLICABLE LAWS:
Seller certifies that any and all goods shipped to Buyer comply with all applicable laws (including the laws of the US (federal, state and local), the EU and the laws of the member states of the EU, including, Italy, Switzerland and the Czech Republic as applicable to where the goods may be shipped by Seller to Buyer) and any applicable rules and regulations, and orders issued under such laws, including, but not limited to, laws related to the manufacture, branding, labeling, registration or shipment of the goods. Seller shall indemnify and hold buyer harmless against any loss, damage or expense resulting from Seller’s breach of this provision. As a contractor of the Federal Government, certain Buyers may be subject to US Executive Order 11246 and Federal Acquisition Regulation (FAR) 52.222-26, Equal Opportunity. As a result, these Buyers have agreed not to discriminate against any employee or applicant for employment because of race, color, religion, sex, or national original and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. These Buyers further agree to comply with all other applicable state and local statutes, ordinances, regulations, and requirements with respect to equal employment opportunity.
8 FORCE MAJEURE:
Neither party shall be liable to the other party for delay directly or indirectly resulting from or contributed to by circumstances beyond its control, including, but not limited to, an act of God, war or national emergency, fire, flood, riot, explosion, or any labor dispute, difficulty or practice, however caused, and export, import, dollar exchange or other governmental regulations or restrictions. In the event of such delay or threatened delay, Seller shall immediately give notice to Buyer and Buyer may, at its option, either excuse such delivery or cancel such purchase order. Buyer shall pay the prices specified in the purchase order for any commercial units completed prior to the effective date of such cancellation or shipped in accordance with such purchase order.
9 PROPERTY OF BUYER:
Buyer shall retain title to any designs, sketches, drawings, blueprints, patterns, dies, models, molds, tools, plates, cuts, special appliances and materials furnished by or paid for by Buyer in connection with any purchase order. Such items shall be recorded and identified by Seller as the property of Buyer and retained by Seller on consignment, subject to examination by Buyer. Such materials shall be held by Seller at Seller’s risk and shall be replaced by Seller if lost, damaged or destroyed. Such materials shall be maintained in good condition at Seller’s expense and kept insured by Seller. Such materials shall be used by Seller exclusively in the production of goods for Buyer as required by any purchase order and shall not be used for production of larger quantities than those specified in any purchase orders, or in the production, manufacture, or design of any goods for any other person without prior written consent of Buyer. Such items shall be subject to disposition by Buyer at any and all times and, upon demand by Buyer, shall be returned to Buyer, including any unused materials furnished by Buyer and all spoiled or defective materials or goods which contain any secret or patented device. Nothing in this paragraph shall be construed as imposing any obligation on Buyer to furnish any such items.
Seller shall treat as confidential all specifications, drawings, blueprints, nomenclature, samples, models and other information supplied to it by Buyer. Unless the written consent of Buyer is first obtained, Seller shall not in any manner advertise, publish or release for publication any statement mentioning Buyer or the fact that Seller has furnished or contracted to furnish to Buyer goods required by any purchase order, or quote the opinion of any employees of Buyer.
Buyer may terminate any purchase order, at any time and in whole or in part, for its convenience upon written notification to Seller. Buyer’s liability shall not exceed the cost of Seller’s current inventory of parts or items purchased specifically for the manufacture of goods to be sold to Buyer under the purchase order. Buyer shall not be held responsible for any charges related to any manufacture done in advance of a normal flow time necessary to meet the delivery schedule. In no event shall Buyer have any liability for inventories which are readily useable or resalable.
No purchase order issued by Buyer may be assigned by Seller without the prior written consent of Buyer. Any assignment of any such purchase order by Seller in whole or in part, voluntarily, by operation of law or otherwise without the prior written consent of Buyer shall be void. Buyer may assign this purchase order to any entity purchasing all or substantially all of its assets.
13 FCPA AND OTHER APPLICABLE LAWS:
Seller shall comply fully with all applicable laws, rules and regulations, including those of the United States, all laws in Seller’s home country (if not the United States), and any and all other jurisdictions globally, which apply to Seller’s business activities in connection with this purchase order. Without limiting any provision in this purchase order, Seller specifically agrees to the following:
- Seller represents and warrants to Buyer that Seller shall comply with all local, national, and other laws of all jurisdictions globally relating to human trafficking and slavery, anti-corruption, bribery, extortion, kickbacks, import, export or matters which are applicable to Seller’s business activities in connection with this purchase order, and that Seller will take no action that will cause Seller or Buyer to violate any such laws.
- Seller specifically represents and warrants to Buyer that Seller is familiar with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), and that Seller shall comply with the FCPA and will take no action that will cause Seller or Buyer to violate the FCPA.
- Seller represents and warrants to Buyer, that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Seller or for Buyer, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Seller’s activities related in any way to this purchase order, including without limitation any payment of money or provision of anything of value to any employee of any customer in order to secure a sale.
Buyer may withhold payments under this purchase order, or terminate this purchase order immediately, if it believes, in good faith, that Seller has breached the foregoing compliance with laws provisions of this purchase order or caused Buyer to violate the FCPA or other applicable laws. Buyer shall not be liable to Seller for any claim, losses, or damages related to Buyer’s decision to exercise its rights under this provision. Seller may request annual certifications of compliance with the FCPA and all other laws applicable to Seller’s activities related to this purchase order in the form provided from time to time by Buyer. Seller shall participate in anti-corruption training if offered by Buyer from time to time.
14 GOVERNING LAW:
With regard to any specific purchase order issued by a Buyer, these Terms and Conditions shall be governed by, and interpreted according to, the local laws of the jurisdiction in which the Buyer is located, without the application of the United Nations Convention on Contracts for the International Sale of Goods; provided, however, that for any Buyer located in the US, these Terms and Conditions shall be governed by, and interpreted according to, the laws of the State of California, regardless of where the Buyer is incorporated, or where the goods are shipped.