purchase order terms

1.  Purchase Order (PO) TERMS.  These PO terms are applicable to and incorporated by reference into any PO issued to Seller by Dayton Children's Hospital, Ohio (“Buyer”) for goods, materials, equipment, software (i.e., “Deliverables”), or services listed in the PO. All references herein to “the PO” include these PO terms.  Either (a) receipt by Buyer of a signed or electronic acknowledgement of the PO from Seller, or (b) shipment or provision of any portion of the Deliverables or services, will constitute an unqualified acceptance of all PO terms and will be binding on Seller and Buyer.  The PO  will constitute the complete and exclusive statement of the agreement between Seller and Buyer with respect to the subject matter hereof, and no part of the PO will be added to, modified, or superseded except as mutually agreed in writing.  Seller agrees that any provisions contained in any acknowledgement hereof or in Seller’s invoice that are inconsistent with or in addition to the PO will have no effect, and will not constitute any part of the PO.  Formal contract terms may be used a default terms.
2. PRICE.  Buyer will not pay higher prices for the Deliverables than those stated on the PO unless confirmation with correct pricing is received and acknowledged by the Buyer in the form of a corrected PO. Unless otherwise specified, the prices include all charges for packaging, handling, storage and delivery.  Seller will pay all delivery charges in excess of the delivery charges which Buyer has agreed in writing to pay.  If Seller makes any price reductions after the date of this PO but prior to the payment date, such price reductions will be applicable to this PO. Seller warrants that the prices of the Deliverables covered by this PO are not in excess of the Seller's lowest prices in effect on the date of this PO for comparable quantities of similar Goods.
3. PAYMENT.  Buyer will pay Seller’s correct and undisputed invoices within 30 days of receipt of such invoices for Deliverables or services received by Buyer.  For Deliverables to be installed by Seller, 80% of the purchase price will be invoiced upon delivery, and 20% upon acceptance of such Deliverables, or as otherwise set forth in the PO  Buyer is entitled to adjust any payments for rejection or any setoff or counterclaim arising out of this PO or any other of Buyer’s purchase orders with Seller.
4. MARKING, PACKING, SHIPPING, DELIVERY, RISK OF LOSS, AND TITLE.  The PO number must appear on all invoices.  Each package will be numbered and labeled with the PO number, will contain an itemized packing slip, and will be properly prepared for shipment.  Seller will not charge Buyer for any packaging or delivery unless stated in the PO.   The acceptance of late or defective Deliverables or services will not be deemed a waiver by Buyer of its right to cancel the PO or to refuse to accept further Deliverables or services.  Seller will notify Buyer of any delay and the reasons.  Upon request by Buyer, at Seller’s own cost Seller will avoid delays by any means necessary.  Delivery will be FOB Destination.  Risk of loss for the Deliverables will pass from Seller to Buyer only upon receipt of delivery by Buyer.  Seller will bear all risk of loss for rejected Deliverables after written notice of rejection has been provided.  Title will pass on the later of acceptance or final payment for Deliverables, even if Deliverables are specially manufactured or have been identified to the PO 
5. INSPECTION AND ACCEPTANCE.  Notwithstanding payment for Deliverables, Buyer retains the right to inspect shipped goods within a reasonable time after delivery, and to reject and return or hold at Seller’s expense and risk any nonconforming, short, or inferior Deliverables, or any Deliverables not fully in compliance with the warranties hereof.  Any Deliverables damaged when received may be exchanged by Buyer at Seller’s cost for a period of 90 days.  If Buyer rejects any Deliverables: (i) Buyer will be relieved of payment obligations therefore; (ii) Seller will pay Buyer’s expenses of inspecting, repacking, storing, and reshipping any Deliverables that are rejected, and immediately return any consideration previously paid by Buyer for such Deliverables and all related services; and (iii) Buyer will be entitled to require Seller to provide other Deliverables that comply with the PO  Buyer may elect, at its sole option, to accept defective Deliverables, subject to a mutually agreeable reduction in price.  Buyer’s mere receipt and/or signature acknowledging receipt of Deliverables will not constitute acceptance.  Acceptance of Deliverables will occur when Buyer notifies Seller in writing that the Deliverables are operating in compliance with their specifications and documentation, are ready for clinical use if applicable, and any required training by Seller is complete.
6. WARRANTIES.  Seller represents and warrants that: (a) all Deliverables and all services will fully conform to the PO, the applicable documentation, specifications, samples, Request for Proposal responses, proposals, requirements, or other descriptions given; (b) the Deliverables will be new and unused, of high quality material and workmanship, merchantable, free from defects, and free and clear of any and all claims, liens, and encumbrances; (c) Seller will adhere to the highest ethical and business standards in providing the Deliverables and services; (d) Seller’s employees and agents have all skills, tools, and equipment necessary to competently provide the Deliverables and perform the services, and all of the services will be performed in a timely, professional, and high quality manner; (e) the Deliverables and services are and will be in compliance with all applicable laws, rules, regulations, and ordinances which govern the manufacture, sale, delivery or provision of the Deliverables and services; and (f) if any Deliverables or services are subject to any manufacturer’s warranties, Seller will assign such warranties to Buyer.  At Buyer’s option, Seller will promptly repair or replace any Deliverables and re-perform any services not complying with these warranties at no cost to Buyer, and Seller will bear all transportation costs and risk of loss and damage in connection therewith.  Repaired and replacement Deliverables, and re-performed services will also be warranted as set forth in this PO  If Seller does not repair or replace any Deliverables or re-perform any services not complying with these warranties within 30 days after notice from Buyer, then at Buyer’s option, Seller will refund all consideration received from Buyer under the applicable PO
7. INDEMNIFICATION.  Seller agrees to indemnify, defend and hold harmless the Buyer, its directors, officers, employees and agents from any and all liabilities, claims, damages, loss and costs (including reasonable attorney’s fees) to the extent arising from the negligent acts or omissions or willful misconduct of the Seller or from the Seller’s breach of its obligations under this agreement. The Buyer shall promptly notify the Seller of any claims for which indemnification is sought.  However, the Buyer shall not be responsible for any liability, damages, losses or costs that are incurred because of a delay in giving such notice except to the extent that the Seller is prejudiced by the delay.  Seller shall assume the defense of any claim for which indemnification is sought using legal counsel reasonably acceptable to the Buyer. The Seller shall not enter into a settlement of any claim that is the subject of the indemnification without the prior written consent of the Buyer (which consent shall not be unreasonably withheld or delayed).
8. SOFTWARE (IF APPLICABLE).  To the extent any Deliverables include any software, Seller grants to Buyer a perpetual, royalty-free, nonexclusive license to use such software (including third-party or packaged software) and its related documentation effective as of the date of the PO 
9. TERMINATION.  Notwithstanding acceptance of Deliverables or any performance after Seller’s breach, Buyer will have the right to immediately cancel and terminate the PO without cost or liability to Buyer if Seller breaches any part of the PO, or if Seller is otherwise unable to meet its obligations as they become due.  Buyer may also terminate the PO for convenience at any time and for any reason by providing 30 days notices.
10. MISCELLANEOUS. Assignment: If Seller delegates or assigns any duties or claims under the PO without Buyer’s prior written consent, then Buyer will have the right to cancel all of Buyer’s obligations under the PO, without liability or cost to Buyer.  Governing Law and Attorney Fees: This PO will be governed by and construed in accordance with the laws of the State of Ohio.  Seller consents to personal jurisdiction in the State of Ohio.  Venue for any dispute arising out of the PO, or the subject matter hereof, or related directly or indirectly to the foregoing, will be in Montgomery County, Ohio.  In any litigation, mediation, or other legal proceeding relating to the PO, the prevailing party will be entitled to recover from the other party its reasonable attorney fees together with expenses and costs incurred therein.  Identification: Without Buyer’s prior written consent, Seller will not engage in promotion or publicity related to the PO, or make public use of any copy or semblance of any trade name, trademark, service mark, insignia, symbol, or logo of Buyer.  Limitation of Damages: IN NO EVENT WILL BUYER BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, RELATED TO THIS PO.  Notices:  All notices required or permitted to be given hereunder shall be in writing, shall refer to the PO, and shall be delivered by hand, or dispatched by prepaid overnight courier or by U.S. Postal Service, postage prepaid.  Partial Invalidity; No waiver:  If any provision of the PO is or becomes void or unenforceable by force or operation of law, the other provisions will remain valid and enforceable.  The failure of either party to enforce any of its rights under the PO will not constitute a waiver of such rights or of any other rights under the PO Remedies: No remedy conferred by any of the specific provisions of the PO is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder, now or hereafter, existing at law, in equity, by statute or otherwise.  The election of any one or more remedies by either party will not constitute a waiver of the right to pursue other available remedies.  Seller Cooperation: Seller agrees to cooperate with Buyer in any instance involving a report or complaint under the Safe Medical Devices Act or other applicable law by providing information useful or necessary in connection with such report or complaint.