Biomedical equipment terms and conditions
n the terms and conditions below, Children's Hospital of Wisconsin shall be referred to as "CHW," the company supplying equipment under this purchase order (the "Purchase Order") shall be referred to as the "Seller," and the equipment described in and provided pursuant to this Purchase Order, whether goods, hardware or software, is referred to as "Equipment."
1. ACKNOWLEDGEMENT AND ACCEPTANCE
Acceptance of this Purchase Order by Seller constitutes acceptance of all of the terms and conditions stated herein. To the extent that any project description document, attached hereto, if any ("Project Description"), quotation, order acceptance, confirmation, invoice or other document of Seller contains conflicting, differing or additional terms from the terms and conditions herein, the terms and conditions herein will control and all such conflicting, differing or additional terms are rejected by CHW, are considered a material alteration hereof, and shall have no effect unless expressly agreed to in writing by CHW. Seller's signed acknowledgement of the Purchase Order, or Seller's shipment of, or acceptance of payment for, Equipment shall conclusively affirm Seller's agreement to these terms and conditions. If this Purchase Order is not signed and returned to CHW, either by mail or fax, CHW, at its option, may cancel this Purchase Order at any time.
2. FOB; DAMAGE DURING DELIVERY
Delivery of Equipment under this Purchase Order shall be by FOB CHW Milwaukee, Wisconsin or another destination as specified by CHW and the risk of loss or damage shall remain with Seller until actual delivery to CHW. Seller shall be responsible for damages sustained during delivery. Any resulting claims against carriers shall be the responsibility of Seller. Replacement of any damaged Equipment shall be the sole responsibility of Seller.
3. PAYMENT TERMS
Unless otherwise indicated in this Purchase Order, CHW shall render payment within thirty (30) days of the date of delivery and acceptance of Equipment, or from the date of a conforming invoice, whichever is later. All invoices for payment shall be in U.S. Dollars and shall include the Purchase Order number, and a summary of the total Purchase Order value, total value of Equipment provided to date of the invoice, total value of invoicing to date and value of the current invoice. Invoices for payment not including such information may be returned to Seller without payment.
All packages, cases, crates, etc., are to be marked with Seller's name and the applicable CHW Purchase Order number. A packing list must accompany each shipment of Equipment. CHW shall not be responsible or liable for any packaging charges, unless otherwise agreed to herein by CHW.
The delivery and performance requirements, manner of delivery and specified dates of this Purchase Order shall be strictly adhered to and shall not be modified without the prior written acceptance of CHW. Time is of the essence. In the event of failure to deliver or perform by the dates specified in this Purchase Order, CHW reserves the right to cancel such Purchase Order in total or any unexecuted part of such Purchase Order. Equipment not shipped in time to meet the delivery requirements and dates under a Purchase Order, at CHW's option, shall be delivered at the fastest means available, at the sole expense of Seller. Notwithstanding anything to the contrary herein, no delivery shall be made without at least twenty-four (24) hours advance notice being given by Seller to CHW.
6. DELAY IN SUPPLY
In the event of failure by Seller to deliver any Equipment contained in this Purchase Order, other than as a result of acts of God, force majeure, civil commotions, fire, war, perils of the sea, delay in transit, or CHW's written request, CHW shall have the right to cancel all or any remaining part of this Purchase Order, without payment of compensation, and obtain delivery or performance from other sources. Any and all increased costs and expenses thereby incurred by CHW in obtaining such delivery or performance shall be set off against any moneys due or to become due to Seller or shall be recoverable as damages hereunder.
Except as otherwise provided herein, this Purchase Order may not be amended, modified, supplemented, cancelled or discharged, except in writing signed by CHW and Seller. Except as modified herein, any modification of any Project Description shall be at Seller's sole cost and expense, unless Seller notifies CHW of such modification and CHW approves such modification in writing.
Seller shall protect, indemnify and hold harmless CHW, its successors, assigns, affiliates, employees, agents, customers and users of its products and services (collectively, the "Affiliates"), of and from any claim, loss, damage (whether for personal injury, property damage, or direct or consequential damage or economic loss), deficiency, action, demand, judgment, cost or expense (including, without limitation, reasonable attorneys' fees) arising out of or resulting from the Equipment sold hereunder, or from any act or omission of Seller, its agents, employees or subcontractors, or which otherwise arises as a result of (i) Seller's performance of its obligations hereunder or (ii) any violation or infringement by Equipment provided hereunder of any patent, copyright, trademark, trade dress, and trade secret, or any other contractual right, proprietary right or intellectual property right, of any third party (collectively, any "Claim"). If any Claim should be asserted or action commenced against CHW for which CHW is entitled to indemnification hereunder, Seller (a) shall, upon CHW's demand, promptly undertake the defense of any Claim, employing counsel reasonably satisfactory to CHW or (b) agrees that CHW, at CHW's sole discretion, may elect to defend any Claim on its own behalf. In either case, Seller will, upon demand, pay all reasonable attorneys' fees and other costs or expenses incurred by CHW in connection with such defense, any judgment or award resulting from any such claim or action and any settlement paid by CHW with Seller's consent, which shall not be withheld unreasonably. This indemnification shall survive delivery of the Equipment to CHW and any subsequent sale or other transfer of the Equipment to a third party. CHW's remedies hereunder are cumulative and in addition to those provided by law or any other contract.
9. CODES AND STANDARDS
All Equipment shall be listed by one of the following agencies: Underwriter's Laboratories, Canadian Standards Association or Electrical Testing Laboratories. If not so listed, Seller must obtain approval from the authority of the City of Wauwatosa, Wisconsin, based on review and approval by a registered professional engineer who has no affiliation with CHW, the manufacturer of the Equipment or Seller. Seller acknowledges that City of Los Angeles listing is not recognized by the State of Wisconsin. All Equipment shall meet or exceed applicable codes and standards of the National Fire Protection Association, the Association for the Advancement of Medical Instrumentation, and the American National Standards Institute. If installation is required, Seller shall comply with all applicable federal, state, and local codes and standards. Seller represents and warrants that the Equipment is in compliance with International Electrotechnical Commission (IEC) 60601-1-2 and that, per the standard, the Equipment performed normally and without degradation when tested at 10 V/m (or greater).
10. QUALITY REQUIREMENTS
Seller shall provide and maintain an inspection system that includes, upon delivery of the Equipment, biomedical staff of Seller performing an inspection of the Equipment in accordance with manufacturer's and CHW's inspection procedures. Seller's biomedical staff will be supervised by CHW biomedical staff and will be required to provide documentation of their actions and findings. Seller shall tender to CHW for acceptance only such Equipment that have been inspected in accordance with such inspection system and that have been determined by Seller to conform to the Purchase Order requirements. However, all Equipment provided under this Purchase Order are subject to final inspection and acceptance within a reasonable time after actual delivery and CHW shall have the right to reject any defective or nonconforming Equipment despite any prior inspection by Seller. Payment for any Equipment shall not be deemed an acceptance thereof.
11. RETURN OF DEFECTIVE EQUIPMENT
All Equipment supplied under this Purchase Order that do not meet with the approval of CHW, that are shipped contrary to Purchase Order instructions, or that are in excess of the quantity or quantities ordered under this Purchase Order, will be returned to Seller or held pending a mutual agreement between CHW and Seller regarding their disposition, subject to Seller's risk of loss and sole expense.
12. OPERATOR AND SERVICE DOCUMENTATION
Prior to or in conjunction with delivery of the Equipment, Seller shall provide at no cost to CHW two paper copies, or a number equal to the quantity of each item of Equipment ordered (whichever is greater), of all appropriate user operational information, one electronic copy of all appropriate user operational information, and one complete paper copy of all service documentation including service schematics, calibration and repair information, and parts information (collectively referred to as "Documentation"). All Documentation shall be written in English. Any subsequent corrections or additions to the Documentation shall be provided promptly to CHW at no additional cost. Updated documentation shall be included with Equipment (whether hardware or software) updates at no additional cost. Seller grants permission to CHW to produce unlimited copies of the Documentation for the purpose of distribution within CHW facilities. Seller represents and warrants that the Equipment will perform substantially in accordance with the Documentation. Seller will use best efforts to resolve any failure to so perform. In addition to the remedies provided otherwise in this Purchase Order, if Seller's efforts do not resolve such failure to properly perform within ten (10) days after CHW provides Seller with notice of said failure to perform, then CHW reserves the right to return any and all Equipment for a full cash refund of all monies paid. Said right shall survive for the first twelve (12) months after installation of the Equipment.
At no additional cost to CHW, Seller shall provide training to appropriate CHW users of the Equipment. Such training shall be made available within a two week period of CHW's request for such training and Seller shall make accommodations to provide such training to all shifts of users, including weekends.
Seller shall provide qualified personnel to unpack, assemble and inspect, in accordance with Paragraph 10, the Equipment when delivered to CHW. In CHW's sole discretion, actual installation of the Equipment by such personnel may be required to be performed after regular business hours or on weekends to prevent interference with CHW's necessary hospital activities. Seller shall not charge CHW additional fees for after hours installation. Seller installation work shall be performed by qualified personnel that shall meet or exceed industry training standards. Seller shall repair or replace any Equipment or property damaged as a result of installation or re-perform any defective service.
15. TECHNICAL SUPPORT
Seller shall provide ongoing technical phone support to CHW users of the Equipment at no additional cost and without any extended warranty or additional service agreement. The quality of and access to this phone support shall be equal to that provided to any of Seller's customers. In addition, Seller shall provide qualified service personnel for on-site technical field service support as reasonably requested by CHW at no additional cost during the greater of the warranty period or the first year after installation of the Equipment. Thereafter, Seller shall provide such support at Seller's prevailing rates without any additional extended warranty or service agreement. At all times, the quality of and access to such support shall be equal to that provided to any of Seller's customers.
16. EXECUTION OF PURCHASE ORDER
Only Purchase Orders sent in writing via fax, mail, courier or e-mail and signed by duly authorized CHW personnel shall serve as an official intent of purchase by CHW.
17. CHEMICALS & HAZARDOUS SUBSTANCES
All Material Safety Data Sheets required by applicable law (MSDS) (each, a "Data Sheet"), shall accompany all Equipment (including, without limitation, any chemicals or hazardous substances) provided under this Purchase Order. In addition, Seller shall provide a copy of each such Data Sheet to CHW's Material Services Department. Seller shall maintain a catalog of any and all applicable Data Sheets that are provided in connection with Seller's performance of work under this Purchase Order at a CHW site.
18. COMPLIANCE WITH LAWS
Seller agrees to comply with all federal, state and local laws, rules and regulations, including, but not limited to, Executive Order 11246, the Equal Employment Opportunity Act and any amendments thereto, pertaining to nondiscrimination in employment, the Occupational Safety and Health Act of 1970, the Fair Labor Standards Act, any laws, regulations and executive orders related thereto, and any other applicable federal, state or local law or regulation. Seller shall, in accordance with Paragraph 8, indemnify and hold CHW harmless against any liability arising out of or resulting from Seller's failure to so comply. Upon request, Seller shall supply CHW with copies of compliance reports and any other information necessary to demonstrate compliance with this Paragraph 18.
Seller warrants it is a merchant as defined in the Uniform Commercial Code and all Equipment delivered hereunder will (i) be merchantable, (ii) be free from defect of design, material or workmanship, (iii) conform strictly to the specifications, descriptions, drawings, or sample specified or furnished to CHW, (iv) be free from security interests, liens or encumbrances, (v) be fit and safe for their intended purpose, and (vi) be safe and appropriate for the purpose for which such Equipment is normally used. In addition, Seller warrants and represents that (a) the safe and proper function of the Equipment shall not be affected by the normal environment of CHW's intended location of use, (b) the Equipment will recover from a power interruption of ten (10) seconds or less with no loss of previously stored data or operating configuration and the system shall be fully operational within thirty (30) seconds or less following such power interruption, (c) the Equipment is free of viruses and authorization codes, which could render the Equipment useless or defective, and (d) Seller has all appropriate and adequate property rights to sell or license, as applicable, the Equipment to CHW as contemplated in this Purchase Order without liability or payment of CHW to any third party. The warranties contained herein shall begin at the time of receipt at the delivery location or at the time of completion of installation, if applicable, whichever is later, unless a later time is specified in the manufacturer policy stated in the Documentation. Such warranties shall survive for the greater of (x) one (1) year, (y) standard warranty term provided by Seller to its customers, or (z) as provided under applicable law. Notwithstanding anything to the contrary contained herein, the foregoing shall not limit any additional warranty or warranty period otherwise agreed to by the parties in writing. The warranties contained herein shall survive any inspection, delivery, acceptance, or payment by CHW of the Equipment. CHW may, at its option, return for credit or require prompt replacement or correction of any of the Equipment that do not conform to the foregoing warranties at Seller's expense. In the event that Seller fails to make such replacement or correction, CHW shall have the right to obtain such replacement or correction from other sources. Any and all increased costs and expenses thereby incurred by CHW in obtaining such replacement or correction shall be setoff against any moneys due or to become due to Seller or shall be recoverable as damages hereunder. Corrected or replaced Equipment shall be subject to the terms and conditions of this Purchase Order in the same manner and to the same extent as Equipment originally delivered hereunder. If a portion of the Equipment to be delivered hereunder is defective or nonconforming, CHW may cancel any unshipped portion of the Equipment covered by the Purchase Order. The rights of CHW provided in this Paragraph 19 shall be in addition to any other rights provided by law, this Purchase Order or any other contract.
20. INDEPENDENT STATUS
Seller acknowledges that it is an independent business acting as an independent contractor. Though Seller may perform installation services, no agent, representative or employee of Seller shall be or be considered an agent or employee of CHW.
In the event of any proceedings, voluntary or involuntary, in bankruptcy by or against Seller, the inability of Seller to meet its debts as they become due, or in the event of the appointment, with or without Seller's consent, of an assignee for the benefit of creditors or of a receiver, then CHW shall be entitled, at its sole option, to cancel any unfilled part of this Purchase Order without any liability whatsoever.
Seller shall not delegate any duties, nor assign any rights or claims under this Purchase Order, or for the breach hereof, without the prior written consent of CHW. Any such attempted delegation or assignment shall be void. Any change of control of Seller shall be deemed an assignment hereunder.
23. SET-OFF AND COUNTERCLAIMS
All claims for moneys due or to become due from CHW shall be subject to deduction by CHW for any setoff or counterclaim arising out of this or any other of CHW's purchases from Seller.
This Purchase Order, or any portion hereof, may be terminated by CHW at any time with or without cause. As used herein, the term "cause" shall include, but not be limited to, (a) a breach by Seller of any of the terms hereof, including any warranty made in connection with the purchase ordered hereunder or (b) any allegation that any of the Equipment furnished hereunder infringes any patent, trademark, copyright or other proprietary right of any third party, or violates any statute, ordinance or administrative order, rule or regulation. If CHW terminates without cause, CHW will compensate Seller for the actual and reasonable expenses incurred by Seller for work in process requested by CHW up to and including the date of termination, provided such expenses do not exceed the agreed upon prices in this Purchase Order.
Seller is responsible for payment to the proper taxing authority of all sales, use and similar taxes.
Seller will neither use any Confidential Information (as defined below) for any purpose other than in performing its duties hereunder nor disclose the existence of this Purchase Order or any information contained herein without the express written consent of CHW. "Confidential Information" includes, but is not limited to, all designs, articles and other proprietary information developed by CHW, supplied to CHW or made according to CHW's direction.
27. LIMITATION OF LIABILITY
To the extent permitted by law, in no event will CHW (including any subsidiaries of CHW or other related entities) be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages relating to this Purchase Order.
Seller shall maintain in effect, at its expense, insurance of such types and in such amounts as is commercially reasonable in connection with the conduct of its business, including, without limitation, insurance coverage for its liability and indemnity obligations hereunder.
If any provision of this Purchase Order shall under any circumstances be deemed invalid or inoperative, this Purchase Order shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingly.
CHW's failure to enforce any provisions of this Purchase Order or rights hereunder shall not operate as a waiver of such provisions or rights and the same shall remain in full force and effect for the duration of this Purchase Order.
31. GOVERNING LAW
This Purchase Order and the acceptance of it shall be a contract made in the State of Wisconsin and governed by the laws thereof, without giving effect to conflicts of law principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to such contract.