1 Entire Agreement.
These Terms and Conditions, including the terms of any written purchase order (an “Order”); any executed change order; and all specifications, samples, and descriptions, constitute the entire agreement (the “Agreement”) and apply to the entire understanding for a purchase of goods or services between Vetsource (“Buyer”) and the supplier named on the Order (“Supplier”). This Agreement supersedes all prior and contemporaneous oral or written agreements, understandings, and communications between Buyer and Supplier. However, if the Agreement covers purchasing of the same subject matter under a written agreement between Buyer and Supplier, the terms and conditions of that written agreement apply and supersede the Agreement. If the Agreement references any specifications of Buyer or statement of work, these documents are incorporated into the Agreement and supersede the Agreement terms in the event of a conflict and unless otherwise agreed in writing. Buyer will be obligated to purchase goods or services only pursuant to an Order submitted by Buyer and accepted by Supplier; these Terms and Conditions alone will not obligate Buyer to purchase any goods or services from Supplier.
2 Acceptance of Terms by Supplier.
This Agreement is an offer, not an acceptance. Buyer expressly limits acceptance of each Order to the terms of this Agreement. Buyer hereby timely objects to any additional or different terms in any invoice, confirmation, or other document unless preceded by a separate writing signed by Buyer specifically modifying these terms. Supplier will be deemed to have accepted the terms of this Agreement (even if Supplier purports to condition its acceptance on Buyer’s agreement to inconsistent, additional, or different terms) when Supplier (a) acknowledges an Order from Buyer in writing or (b) makes any shipment or performance in response to or in anticipation of an Order. No term of any invoice or other document issued by or on behalf of Supplier that is inconsistent with this Agreement will bind Buyer.
3 Volume Commitment.
Buyer will not be obliged to purchase any minimum volume of goods or services unless specifically indicated on the Order or otherwise agreed upon by the parties in writing. Forecasted volumes will not be binding on Buyer. Supplier must advise Buyer immediately if there is any shortage in the supply of raw materials, goods, resources, or personnel necessary to fulfil the Order, and present an action plan to Buyer to remedy the shortage.
4 Origin.
The goods and services provided by Supplier will not in any way directly or indirectly originate from or be provided by any country, person, or entity which would cause Buyer to be in violation of or be penalized by U.S. or other applicable economic-sanctions laws. Supplier must provide at Buyer’s written request all information enabling Buyer to identify the origin, place, and date of manufacture of the goods and the raw materials used to manufacture the goods, and any other information regarding the goods and the related raw materials, in addition to the serial or batch numbers.
5 Purchase and Payment.
a. Supplier will invoice Buyer for the amounts due under an Order. Unless otherwise set forth in the Order, Supplier will not invoice for goods or services until the goods or services have been completed and provided to Buyer. The purchase price for the goods or services ordered will be set forth on the face of the Order.
b. Supplier must send all invoices to Buyer at [email protected], ATTN: Accounts Payable. Supplier’s invoices will contain the following information (as applicable): Buyer’s purchase order number, part number, quantity, unit of measure, a description of the goods or services, unit cost, total cost, sales tax, cash discount terms, method of shipment, and point of destination.
c. Buyer will pay Supplier all undisputed and all properly documented invoices. Buyer will pay Supplier in accordance with the payment terms set out in the applicable Order. If the applicable Order contains no payment terms, Buyer will pay Supplier net 60 days after Buyer’s receipt of an invoice meeting the requirements set forth above. If the payment due date falls on a holiday or weekend, payment will be made on the following business day. Buyer retains the right to withhold payment if Supplier’s invoice is inaccurate, does not meet Buyer’s invoice requirements, does not meet legal or tax requirements, if the delivery requirements set forth in Section 6 (Title and Delivery) are not met, or if there are any disputed amounts. Buyer has the right to set off its claims against the amounts due and claims of Supplier.
d. Unless otherwise agreed in writing, the price of the goods or services includes all costs to comply with the Agreement and all foreign, federal, state, and local sales and use taxes; ad valorem taxes; tariffs; duties; commissions; and other similar charges imposed on any goods or services, or any part of the Order. If Buyer is required to pay any tax or other charges (including penalties and interest) in addition to the price indicated in the Order, Supplier will promptly reimburse Buyer for any such taxes and other charges (including penalties and interest) that Buyer pays.
6 Title and Delivery.
a. Supplier must deliver the goods or services to Buyer according to the Order including volume, price, delivery date, delivery terms, time, and location. Quantity, delivery date, and time of performance are essential conditions of the Order and time of delivery or performance of the Order is of the essence. If delivery or performance is not timely completed, Buyer may, at its election, refuse all or any of the goods and services and cancel all or any part of the Order. Supplier will be responsible for damages incurred by Buyer as a result of Supplier’s failure to deliver the goods or services within the time limits specified in the Order.
b. Except as otherwise stated on an Order, all goods will be delivered (i) freight prepaid, F.O.B. at Buyer’s specified place of delivery if the goods originate in the United States or (ii) Delivery Duty Paid (DDP) Incoterms 2020 to Buyer’s specified place of delivery if the goods are shipped internationally. Supplier retains the risk of loss or damage to the goods until the goods are physically delivered to Buyer’s stated place of delivery. Buyer will obtain full title to the goods upon physical delivery of the goods to Buyer’s stated place of delivery. Supplier will provide any drawings, instructions, descriptions, deliverables, calculations, control certificates and certificates of conformity or analysis, customs clearance documentation, and any other documents relating to the goods or services reasonably required by Buyer. Buyer will not pay any packing charges unless those charges are itemized in the Order. Supplier will not ship goods C.O.D. without Buyer’s prior written consent.
7 Acceptance of Goods and Services by Buyer.
a. Buyer has a reasonable period of time after delivery to inspect and accept the goods and services. Buyer may inspect the goods delivered for external damage to packaging, correct identity, and correct quantity in due course of business and notify Supplier of any such deficiencies in a reasonable time. Buyer will notify Supplier of further defects in a reasonable time after discovery.
b. Buyer’s receipt of, inspection or non-inspection of, or payment for goods or services will not constitute acceptance and will not impair Buyer’s right to (i) reject any nonconforming goods or services, (ii) recover damages, or (iii) exercise any other remedies to which Buyer may be entitled. Rejected goods may be returned to Supplier at Supplier’s sole cost and expense. Supplier will refund Buyer all amounts paid by Buyer for the rejected goods. Buyer does not waive any of its rights or remedies resulting from any breach of the Agreement by accepting goods or
services.
c. Acceptance will not relieve Supplier from its responsibility under any warranty. If any of the delivered goods or services do not comply with one or more of the warranties under Section 8 (Warranties) and without prejudice to Buyer’s other rights under the Agreement, Buyer may reject the goods or services and, at Buyer’s sole option and at Supplier’s expense, (i) Supplier will replace or repair the goods or services as necessary to make them compliant with the warranties or refund Buyer all amounts paid for the rejected goods, (ii) Buyer may procure replacement goods or services at Supplier’s expense, or (iii) Buyer may terminate or modify the Order.
8 Warranties.
Supplier expressly warrants that all services (to the extent applicable) and all goods will: (a) for a period of not less than one year (or such other period as may be specified in an Order) from the date of Buyer’s acceptance, (i) be free from defects in materials and workmanship, (ii) be of merchantable quality, (iii) be fit for the purposes for which goods of that type are ordinarily used, and (iv) perform in conformity with all specifications, samples, and descriptions provided to Buyer; (b) be free from all liens, charges, encumbrances, and claims of every nature; (c) be in compliance with all applicable laws, regulations, and standards; and (d) not infringe on any patent, copyright, trademark, or proprietary rights of any third party. All electrical items included in the goods will be UL approved. These warranties will survive satisfaction of the Order and are in addition to any warranties of greater scope given by Supplier to Buyer. Supplier assigns to Buyer the benefits of all warranties given by any person or entity from whom Supplier purchased any goods or services. Without limiting any other rights or remedies available to Buyer, if any goods or services are defective in any way or fail to conform in any respect to the warranties above, Supplier will, at its own expense, and within a reasonable time after notice, repair, replace, or correct any defective or nonconforming goods or services, provided that Supplier is notified of the defect or nonconformity within a period of one year after the date Buyer discovers the defect. Whether or not Supplier repairs, replaces, or corrects any defect within a reasonable time, Supplier will reimburse Buyer for reasonable expenses incurred in connection with such failure and in enforcing Buyer’s warranty rights (including its reasonable attorney fees at trial and on appeal), in addition to any other remedy Buyer may have. If Buyer is not the end-user of any goods and Buyer sells such goods to a third party, then all warranties, rights, and remedies available to Buyer will extend to such third party in addition to Buyer.
9 Indemnity.
Supplier will hold harmless, indemnify, and defend Buyer (including Buyer’s directors, officers, employees, agents, affiliates and insurers) from, for, and against all third-party claims, demands, lawsuits, losses, damages, injuries, expenses (including attorney fees at trial and on appeal), and other liabilities of any nature arising out of or in connection with the negligent performance, non-performance, or breach of the terms of this Agreement by Supplier (including its employees, agents, contractors, subcontractors, and consultants); any nonconformity, defect, or breach of warranty as to the goods or services; any violation or infringement by the goods or services of any patent, copyright, trademark, trade secret, nondisclosure agreement, or other proprietary rights of any third party; Supplier’s failure to pay any taxes associated with this Agreement to the appropriate governmental authority; or Supplier’s failure to comply with the confidentiality obligations set forth in Section 16 (Confidentiality).
10 Limitation of Liability
Buyer and its affiliates are not liable for any consequential, incidental, indirect, punitive, or special damages, including commercial loss and lost profits, however caused and regardless of legal theory or foreseeability, directly or indirectly arising under the Agreement. Supplier will be liable for all types of damages or losses of Buyer or any affiliate of Buyer resulting from any breach or non-performance by Supplier or any of its agents or sub-contractors of Supplier’s obligations under the Agreement. Further, Supplier will be responsible for and reimburse Buyer for all costs of and liability arising from any repair, recall of finished products (incorporating defective good or alleged defective goods), replacement, or additional services including
transportation.
11 Insurance.
Supplier will maintain and keep in full force and effect such insurance coverages (including public and product liability, employer liability, profession indemnity/liability, property liability) as are sufficient to protect Supplier from all applicable risks. All insurers must have at least AM Best Rating of A-VII or better or the equivalent by another rating agency. Supplier will deliver to Buyer certificates of insurance evidencing the foregoing coverage within 10 business days after Buyer’s request.
12 Changes.
a. Buyer reserves the right at any time to change any one or more of the following: (i) specifications, drawings, and data incorporated in the Order where the goods or services are to be specially manufactured or provided for Buyer; (ii) methods of shipment or packing; (iii) place of delivery; (iv) time of delivery; and (v) increase or decrease of up to 20% in quantities of goods and/or services. Changes under subsection (i) above may be made only before any special manufacturing of such goods has commenced. b. If any change described above causes an increase or decrease in the cost of or the time required for performance of the Order, an equitable adjustment will be made in the contract price or delivery schedule, or both. Any claim by Supplier for adjustment under this clause will be deemed waived unless asserted in writing within 10 business days after receipt by Supplier of Buyer’s request for change. Except as provided above, Buyer and Supplier must agree in writing to all amendments of or modifications to the Order.
13 Termination of Orders/Returns.
a. The term of the Order is as stated on its face or, if not specified, the Order commences on the date of the Order and continues until the last goods or services supplied under it are delivered and accepted by Buyer.
b. Buyer may, without cause and at any time before performance of services or shipment of goods (or, in the case of specially manufactured goods, before manufacturing has begun) terminate an Order in whole or in part without cost or liability by giving written notice to Supplier.
c. Either party may terminate an Order in whole or in part without cost or liability by giving written notice to the other party, if the other party,(i) ceases conduct its operations in the normal course of business; (ii) becomes insolvent; (iii) makes a general assignment or arrangement for the benefit of creditors; (iv) files or has filed against it a petition for bankruptcy, reorganization, or rearrangement and, in the case of an involuntary petition, the petition is not dismissed within 60 days; or (v) has a trustee or receiver appointed to take possession of any of its assets.
d. Buyer may return any stock goods to Supplier for full credit as long as the returned goods are in saleable condition and have not been discontinued by Supplier (stock goods will be deemed to be discontinued by Supplier 90 days after Buyer receives written notice that Supplier intends to discontinue those goods).
e. Any services performed or goods supplied by Supplier without an Order from Buyer will be at Supplier’s own risk and cost.
14 Security Agreement.
To the extent Buyer has made any payments to Supplier, Supplier grants to Buyer a continuing security interest in all or any part of the goods, even if completed, that are identifiable to the Order. Supplier expressly authorizes Buyer to file any use financing statements or notify other secured parties to obtain priority over any competing security interest in the goods.
15 Force Majeure.
Neither Buyer nor Supplier will be liable for a delay in performing its obligations under this Agreement to the extent that delay is caused by insurrection, war, riot, explosion, fire, flood, earthquake, or other catastrophic event beyond the reasonable control of the affected party, provided the affected party promptly notifies the other party and takes reasonable and expedient action to resume performing its obligations under this Agreement. Buyer may terminate an Order at no cost if a force majeure event continues or is likely to continue beyond 10 calendar days and Supplier has not been able to perform in accordance with the terms of the Order.
16 Confidentiality.
a. Unless otherwise agreed in writing, this Section 16 (Confidentiality) will govern Buyer’s Confidential Information disclosed to Supplier. Supplier will not use any Confidential Information for any purpose other than as needed to perform Supplier’s obligations under this Agreement. Supplier will hold all Confidential Information in strict confidence and will not disclose any Confidential Information to any person other than to its employees and independent contractors who (i) have a “need to know,” (ii) have been advised of the confidential and proprietary nature of the Confidential Information, and (iii) have signed a written agreement that is as protective of the Confidential Information as that set forth in this provision. Supplier is responsible for any unauthorized disclosure of Buyer’s Confidential Information by itself, its affiliates or subsidiaries, and its personnel.
b. Supplier may disclose or produce any Confidential Information to the extent required by any discovery request, subpoena, court order, or governmental action, provided Supplier gives Buyer (to the extent not prohibited by law) reasonable advance notice of the same (e.g., to afford the disclosing party an opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure).
c. When Supplier has fully performed its obligations under this Agreement, or at any other time upon Buyer’s request, Supplier will (i) return to Buyer all Confidential Information in tangible form that is in Supplier’s possession and (ii) certify in writing that all Confidential Information has been returned to Buyer. d. “Confidential Information” includes all information and materials relating to Buyer’s business, in whatever form or medium, intentionally or inadvertently disclosed to or received by Supplier, whether visually, by perception, orally, or in writing, whether disclosed before or after the effectiveness of this Agreement, and whether or not specifically marked or otherwise identified as “Confidential” or “Proprietary,” including all summaries and notes prepared by or on behalf of Supplier. Confidential Information does not include any information that Supplier demonstrates: (i) is publicly available when received or subsequently becomes publicly available through no fault of Supplier; (ii) was lawfully obtained by Supplier from a third party without restriction; or (iii) was developed independently by Supplier without the aid, application, or use of Buyer’s Confidential Information.
17 Publicity.
Supplier and its personnel will not use the names, trademarks, logos, service marks, or trade names (whether registered or not) of Buyer or its affiliates and subsidiaries under any circumstances and will not advertise, publicize, or otherwise disclose its association with Buyer or its affiliates and subsidiaries in any manner (written, verbal, or pictorial) without Buyer’s prior written approval.
18 Relationship of Parties.
Buyer and Supplier are independent contractors. Nothing in the Order creates a partnership, a joint-venture or any legal entity, an agency, or an employment contract. Nothing in this Order shall be construed as creating a joint employer relationship between Supplier and Buyer. Supplier personnel providing Services under this Order shall remain under the sole and exclusive control, supervision, and direction of Supplier. Supplier shall determine the terms of employment for its respective personnel in accordance with its standard practices, including hiring and firing; payment of compensation and other benefits of such personnel, including salary, health, accident and worker’s compensation benefits; and all taxes and contributions that an employer is required to pay with respect to the employment of personnel. No act or omission of Supplier shall be construed to create or render Buyer a joint employer.
19 Assignment; Subcontracting.
Supplier will not assign, transfer, or subcontract its rights and obligations under the Order without Buyer’s prior written consent. Any approved subcontracting, transfer, or assignment does not release Supplier from its obligations under the Order. Buyer may assign or transfer all or any of its rights or obligations under the Order to any affiliate or subsidiary of Buyer and Supplier gives its consent to such assignment or transfer.
20 No Waiver.
Buyer’s failure or delay in exercising any right or remedy concerning the Order does not waive that right or remedy. Any such waiver must be in writing and signed by Buyer.
21 Third Party Rights.
Unless it expressly states otherwise, and except in relation to Buyer’s affiliates, the Order does not give rise to third party rights to enforce any term of the Order.
22 Severability.
If any provision of the Order is held by any court to be invalid, illegal, or unenforceable, either in whole or in part, that will not affect the validity, legality, or enforceability of the remaining provisions, or any part thereof, of the Order, all of which will remain in full force and effect.
23 Construction.
a. Unless stated or context requires otherwise: (i) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (ii) the word “or” will be deemed an inclusive “or”; (iii) lists of examples following “including” or “e.g.” or similar words are not exhaustive (that is, they are interpreted to include “without limitation”), unless qualified by words such as “only” or “solely”; (iv) the singular includes the plural and the plural includes the singular; and (v) a reference to a thing includes a part of that thing (that is, it is interpreted to include “in whole or in part”).
b. This Agreement was drafted in English. To the extent of any inconsistency between the English version of this Agreement and a translation of these terms and conditions, the English version will prevail (to the extent permitted by applicable law).
24 Governing Law and Venue.
The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of the State of Delaware, disregarding any conflict of law rules. The parties submit to the exclusive jurisdiction of the state or federal courts of Clackamas County, Oregon for any dispute arising out of or in connection with the Agreement or its subject matter or formation.
25 Exclusion of Conventions.
The following international conventions will NOT apply to the Agreement: (i) the United Nations Convention on Contracts for the International Sale of Goods of 1980 and (ii) the United Nations Convention on the Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and the Protocol Amending the Convention on the Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.
26 Several Liability.
All obligations of Buyer under these terms and conditions will be several and not joint; in no event will any Buyer affiliate be liable for the obligations or performance of any other Buyer affiliate.
27 Survival.
The rights and obligations in sections 1, 5, 8, 9, 10, 11, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 of these terms and conditions survive the termination or expiration of the Agreement for any reason.