These Purchase Order Terms and Conditions contained herein (“POTC”) and the purchase order coversheet (the “PO Coversheet”) attached hereto shall be effective between Sonex Health, Inc. (“Sonex”) and the Vendor specified on the PO Coversheet (“Seller”), and shall apply to all Products (defined below) supplied by Seller to Sonex.
Terms. This POTC is an offer to Seller by Sonex to enter into a purchase agreement with Seller on the terms and conditions set forth herein, on the attached PO Coversheet, any Specifications (defined below), any nondisclosure agreement executed by and between the parties, and any other documents or materials expressly referred to by Sonex on the PO Coversheet or in this POTC (collectively, this “PO”). Seller may accept this PO only by: (a) shipping any Products (defined below) in accordance with this PO; (b) accepting payment or (c) starting performance or any other statement, act or course of conduct of Seller which constitutes acceptance under applicable law; whichever comes first. A commitment to purchase Products shall arise only at such time as Sonex validly (with all necessary signatures of approval in the PO Coversheet) issues this PO and Seller thereafter accepts the same in accordance with the terms and conditions of this PO. Any change, amendment, or additional materials made and/or attached by Seller to, or any acceptance, invoice, shipping instructions, bill of lading or other writing of Seller which contains terms, conditions, specifications, or warranties which are additional to or different from, the terms and conditions of this PO are hereby expressly objected to and rejected by Sonex. If this PO is responsive to a prior offer by Seller, then this PO shall be deemed an acceptance of such offer but only limited to the material terms and conditions stated in this PO, and any material additional or supplemental terms or any material variance from the terms and conditions of this PO are hereby expressly objected to and rejected by Sonex. Sonex may revoke or modify this PO prior to Seller’s acceptance. After Seller’s acceptance, Sonex may modify this PO by providing Seller written notice.
- 1. Products. Seller shall sell and deliver to Sonex the products described on the PO Coversheet (“Products”). Sonex may deliver to Seller designs and specifications (collectively, the “Specifications”) for Products to be manufactured by Seller under this PO. Seller shall (i) expend its own time, resources and materials, including but not limited to all necessary expenses and cost, in manufacturing the Products in accordance with the Specifications and (ii) deliver the Products, in accordance with the requirements as set forth and described in the Specifications, which may be amended and updated from time to time upon mutual agreement in writing between Sonex and Seller. The Specifications shall be considered “works-made-for-hire” within the meaning and purview of § 101 of the Copyright Act of 1976, 17 U.S.C. § 101 (the “Act”), and ownership of the entire right, title and interest in the Specifications shall exclusively reside with Sonex. Regardless of whether the exclusive title and/or ownership rights in and to the Specifications may not originally vest in Sonex, Seller hereby irrevocably assigns, and will assign upon Sonex’s request, any and all rights in and to the Specifications, including, but not limited to, any copyrights, patents, and other proprietary rights therein, to Sonex free and clear of any security interests, claims, encumbrances or charges of any kind. Sonex grants Seller a nonexclusive, nontransferable, limited license to use any Specifications solely for the purposes of manufacturing the Products in accordance with the terms and conditions of this PO. Time is of the essence in the performance by Seller of its obligations under this PO.
- 2. Price. The PO Coversheet shall list the price for the Products. All charges shall be included in the price and no extra charges of any kind, including, but not limited to, shipping, handling, freight, and insurance, shall be allowed unless Sonex specifically agrees to such charges in writing. Seller agrees to pay all taxes, including, but not limited to, sales, use, and excise taxes, imposed by law or regulation due under this PO.
- 3. Payment. Invoices and shipping documents for the Products shall be emailed or mailed postage pre-paid to Sonex at the address shown on the PO Coversheet. The PO number, part number, and quantity must appear on all shipping documents, invoices and correspondence. Except as otherwise specified on the PO Coversheet, the payment due date and discount period, if applicable, will be calculated from the date Sonex receives the invoice, or the date of complete delivery of all Products due in a shipment to Sonex, whichever is later. Seller hereby waives any lien rights, whether statutory or not, of any kind, including, but not limited to, carriers’, warehousemen’, mechanics’, materialmen’ and other similar liens, relating to the performance of this PO.
- 4. Delivery Terms. Delivery of Products shall be made to Sonex’s facilities or offices designated in the PO Coversheet, freight and insurance prepaid, at the address and on the delivery date(s) specified on the PO Coversheet. Risk of loss and title to Products shall pass to Sonex upon delivery to Sonex, but shall revert to Seller during returns, recalls and reshipments. Seller shall adequately insure all Products during shipment and reshipment. If Seller’s deliveries fail to arrive by the delivery date(s) specified on the PO Coversheet, Sonex may direct expedited routing and charge excess cost to Seller. Seller shall package Products to prevent damage during shipping and ship Products in accordance with Sonex’s instructions. Unless otherwise specified on the PO Coversheet, no separate charge shall be made for packaging and Seller shall pay all insurance and freight costs for delivery. Sonex’s count for received Products shall be accepted as final.
- 5. Inspection. All Products are subject to Sonex’s inspection, testing, and acceptance or rejection at any time after receipt. Sonex’s decision to accept or reject shall be final. If rejected, Products may be held for disposition at Seller’s risk and expense, which includes without limitation return freight and storage, and Sonex may require repair, replacement, full credit or refund for the rejected Products, in addition to any and all remedies set forth herein and at law or in equity.
- 6. Warranties. Seller hereby represents and warrants to Sonex that all Products shall: (a) be new; (b) be fit for the general and particular purposes of Sonex for which they are purchased; (c) be free from all defects; (d) conform to any samples furnished; (e) be made in a workmanlike and professional manner and strictly conform to the Specifications, if any, this PO and all applicable laws and regulations; (f) not, nor shall their use, infringe, misappropriate or violate in any respect any intellectual property rights of a third party; (g) be of good and merchantable title, free of liens and encumbrances and (h) be free from any claim, litigation or proceeding pending or threatened against Seller with respect to the Products or any component thereof alleging infringement or misappropriation of any intellectual property rights of a third party. Seller hereby represents and warrants to Sonex that it is an expert in manufacturing and supplying the Products and Seller agrees that Sonex may rely on Seller as an expert. In the event of a breach of any of the foregoing warranties, Seller shall, without limiting Sonex’s other rights and remedies herein and at law or in equity, at Sonex’s request, promptly and without additional charge, replace or repair the Products, or refund the full price paid for such Products. If, after Sonex’s request, Seller fails promptly to replace or repair any defective or non-conforming Product, Sonex may do so without further notice and Seller shall reimburse Sonex for all costs and expenses incurred thereby, and Seller shall repay any price paid for the Products.
- 7. Quality. Seller shall maintain quality data to substantiate compliance with the warranties set forth in Sections 7(b), (c), (d) and (e), and Seller’s manufacturing processes and inspection system shall be subject to on-site review and verification by Sonex during performance of this PO, and for three months thereafter, during ordinary business hours. Supplier to notify Sonex prior to making any changes in the product or service, or the suppliers ability to meet requirements so that Sonex may determine whether the changes affect the quality of the finished device.
- 8. Product Recalls. In the event any Product is the subject of a recall, withdrawal or field correction, Seller shall promptly notify Sonex. Sonex shall have sole control of handling such recall, withdrawal or field correction with respect to its customers.
- 9. Insurance. Seller shall have adequate general commercial liability and product liability insurance to protect Sonex relating to this PO.
- 10. Indemnification. Seller shall indemnify and hold harmless Sonex, its affiliates, and their respective officers, directors, employees, agents, and successors and assigns from all losses, claims, damages, costs, expenses and liabilities of any kind (including attorney’s fees and court costs) resulting from (a) breach of Seller’s representations, warranties or covenants set forth in this PO, (b) any Product recalls or (c) the Products or their use infringing or violating any intellectual property or other proprietary rights of a third party.
- 11. Confidential Information. The nondisclosure agreement, if any, executed by and between the parties hereto shall govern the protection of any confidential and/or proprietary information disclosed by Sonex. If the parties have not entered into a separate nondisclosure agreement, then Seller agrees that all nonpublic information of Sonex furnished hereunder to Seller by Sonex is proprietary to Sonex and such information shall be held in confidence using no less than reasonable care, and in no event less care than Seller takes to protect its own confidential information of similar importance, and shall not be used or disclosed by Seller without Sonex’s prior written consent, except for the fulfillment of this PO. Seller shall enforce against its employees, contractors and agents these obligations of confidentiality. Seller shall return all such confidential information and any copies thereof to Sonex upon request. Seller shall not use the name of Sonex, or any Sonex logo, trademark or services mark in its sales promotion, advertising or any other publication without Sonex’s prior written consent.
- 12. Cancellation. Sonex may cancel this PO in whole or in part for convenience by written notice to Seller. In the case of Sonex’s cancellation for convenience (a) for special order Products manufactured by Seller where the Specifications are a primary feature of their manufacture, Sonex shall only be liable for marginal costs incurred by Seller prior to the date of receipt of the written notice of cancellation, less full credit for materials reusable by Seller, and Seller shall deliver the paid-for portion of the Products and (b) for all other Products, Sonex shall be liable for the PO price only for those conforming Products shipped in accordance with the terms of this PO prior to the date of Seller’s receipt of the written notice of cancellation. Sonex may also cancel this PO in whole or in part by written notice to Seller due to (i) Seller’s breach of, or failure to comply with, any of the terms and conditions of this PO or (ii) Seller filing a petition of any type as to its bankruptcy, being declared bankrupt, becoming insolvent, making an assignment for the benefit of creditors or going into liquidation or receivership. On such cancellation under (i) above, Sonex shall not be liable to Seller for any amount, and Seller shall be liable to Sonex for all damages sustained due to the default plus any reprocurement charges exceeding the amounts payable by Sonex under this PO. Section 1 and Sections 6 through 16 shall survive any cancellation of this PO.
- 13. Compliance with Applicable Laws. Seller warrants and certifies that, in its performance of this PO, it has complied, and will comply, with all applicable laws, rules and regulations. Seller shall obtain and maintain in accordance with applicable law all permits or licenses required to perform its obligations under this PO. Seller warrants that neither Seller nor any of its officers or directors are debarred, suspended, or excluded from participation in any federal or state healthcare or other governmental programs.
- 14. Liability. Seller shall be liable for all direct, incidental, consequential and other damages resulting from non-conforming Products or breach of any warranty or provision of this PO. Sonex shall not be liable for any special, consequential, incidental, punitive or indirect damages under or arising out of this PO or its cancellation, and Sonex’s total aggregate liability under this PO shall not exceed the price specified in Section 3 for conforming Products delivered as required herein; provided, however, that Sonex shall have no liability for non-conforming Products nor shall Sonex have liability for modifications and cancellations except as expressly specified herein.
- 15. General. All remedies under this PO are cumulative and in addition to any other remedies at law or in equity. Sonex may deduct amounts due to Seller for any setoff, counterclaim or indemnification right arising out of this PO or any other agreement between the parties. This PO constitutes the final, complete, exclusive and entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, regarding the subject matter of this PO. This PO is governed by Minnesota law, excluding its conflict of laws provisions. The parties consent to the exclusive personal and subject matter jurisdiction of the federal and state courts of the State of Minnesota sitting in Hennepin County in any dispute arising under this PO. Seller may not assign or subcontract its rights or obligations under this PO unless Sonex has expressly consented to such assignment or delegation in writing. Sonex may freely assign its rights and obligations under this PO. Prohibited assignments are null and void. Except as provided in Section 1, this PO may only be modified or waived by a writing signed by both parties. No failure or delay to enforce a provision under this PO will be deemed a waiver thereof. The parties are independent contractors and not agents of each other. If any portion of this PO is unenforceable, the remaining portions shall remain in full force and effect. All required notices must be in writing and are deemed received the day of personal delivery or faxing and two days after mailing to the addresses listed on the PO Coversheet.