1. Existing Agreement. Virbac purchase orders that are issued under a written and fully executed agreement between Virbac Corporation ("Buyer") and Seller are subject to the provisions of that agreement and the terms and conditions contained within that agreement agreed to be controlling. In the absence of such a written agreement, these Terms and Conditions (“Terms”) constitute the complete, final and exclusive statement of the contract between Buyer and Seller for the goods and/or services described on the face of Buyer’s purchase order (“Order”).
2. Acceptance of terms and conditions: By acceptance of this Order, Seller agrees to be bound by, and to comply with all these Terms, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute Buyer's offer to Seller, which Buyer may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by Buyer of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on Buyer, whether or not they would materially alter this Order, and Buyer hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.
3. Price: This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under this Order will not be billed at a higher price than last quoted or charged without Buyer's specific written authorization. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller except as otherwise specified by the parties in writing.
4. Invoices, payment, and taxes:
(a) Invoices will be issued on completion of services or delivery of goods and will contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to only one purchase order.
(b) Buyer’s standard payment terms are net 60 days from the date of an accurately submitted invoice.
5. Packaging: All goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Buyer does not specify the manner of shipment, route, or carrier, Seller shall ship the goods with a qualified carrier at the lowest possible transportation rates in compliance with applicable regulatory requirements and storage conditions for the type of goods being transported, consistent with Seller's obligation to meet the delivery schedule set forth in this Order.
6. Inspection: All goods and services will be subject to inspection and test by Buyer upon arrival, prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on Buyer for them. Buyer's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Buyer covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to Buyer during the performance of this Order and for seven (7) years after Seller's completion of this Order. If any of the goods or services are found to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, then Buyer, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller's expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Buyer, Buyer may at its option inspect and sort the goods; Seller will pay any related costs.
7. Warranties: Seller warrants that the goods or services delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of goods, and any other performance pursuant to this Order, will: (i) be free of infringement of property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; (iii) be of merchantable quality; (iv) be fit for the intended use of the Buyer, Buyer's customers and any other intended uses of such goods and shall be new and not refurbished; and (v) be of grade and performance in conformity with all specifications, blueprints, designs, drawings, samples, models, descriptions, instructions, and other items referred to in this Order. Seller also warrants that the goods or services to be delivered hereunder were produced incompliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended, including specifically Sections 206, 207, 212 and 215, and all regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. Seller shall maintain, solely at Seller's cost and expense, all licenses, permits, approvals, and the like necessary to conduct its business and perform its obligations under this Order.
8. Indemnification: Seller shall indemnify and hold Buyer and its affiliates harmless and, on Buyer’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Buyer or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Buyer or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Buyer’s option, either procure for Buyer the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. Limitation of liability: Buyer's aggregate liability arising from or relating to this order is limited to the amount paid by Buyer for the goods and/or services. To the maximum extent allowable under applicable law, Buyer shall not be liable under this Order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues even if Buyer has been advised of the possibility of such damages.
10. Changes: Any change to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery will be authorized only by a written amendment to this Order signed by Buyer and Seller. Information provided to Seller by representatives of Buyer will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of Buyer's employees has constituted a change under this Order, Seller will immediately notify Buyer's Procurement Department, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 10
11. Compliance with laws: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
12. Confidential or proprietary information: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Buyer, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and will be acquired by Buyer, free from any restrictions. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Buyer in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer's prior written consent. Except as required for the efficient performance of this Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Buyer. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Seller will promptly return to Buyer all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Seller without the prior written agreement of Buyer.
13. Insurance: Seller will maintain the following insurance coverage in amounts adequate to insure the liabilities assumed in these Terms: Comprehensive General Liability (including Contractual Liability coverage) , Automobile Liability, Employers' Liability and Workers' Compensation. At Buyer's request, Seller will furnish to Buyer a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Buyer as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Buyer.
14. Termination: Buyer may terminate all or any part of this Order for convenience at any time by written notice to Seller. Upon such termination, Buyer's liability will be limited to reasonable documented charges incurred by Seller up to the time of termination. This Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
(a) Non-assignment: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the Buyer, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
(b) Transportation: All the prices are established as F.O.B. Destination, Freight Prepaid, unless otherwise specifically provided on the front of this Order. Title and risk of loss shall not pass to Buyer until delivery of the goods to the location designated on the face of this Order and acceptance by Buyer. If Buyer rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. If Seller’s carriers are used, the responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.
(c) Anticipation of delivery schedule: Goods shipped to Buyer which arrive more than 5 business days in advance of the date requested on the front of this Order may be returned to Seller at Seller's expense.
(d) Seller's inventory: Buyer will have no obligation to request quotations or place Orders with Seller, both of which will be in Buyer's sole discretion. Buyer acting in its sole discretion will determine the actual quantity of goods or services to be purchased.
(e) Force majeure: Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.
(f) Publicity: Seller will not use Buyer's name or logo in publicity, advertising, or similar activity, except with Buyer's prior written consent. Seller will not disclose the existence of this Order or any of its respective terms to any third party without Buyer's prior written consent.
(g) Documentation: All technical documentation and other literature necessary for the proper use of the goods or services will be provided to Buyer with the goods or services, unless otherwise directed by Buyer, and its cost is included in the price.
(h) Governing law: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of Delaware in the United States of America without regard to its conflict of law principles.
(i) Waiver; modification: A waiver of any term, condition or default of this Order shall not be construed as a waiver of any other term, condition, or default. This Order may be amended only by a written agreement signed by authorized representatives of both parties.
(j) Severability: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.