- SCOPE. These Purchase Terms apply to the purchase by Particles Plus, Inc. (“PPI” or “Particles Plus”) of any goods or services (together, “Products”) described on PPI’s Purchase Order (collectively with these Purchase Terms, this “Purchase Order”) from Seller. As used herein, “Seller” or “Supplier” means the legal person to whom the Purchase Order is issued. This Purchase Order, whether or not issued with reference to a quotation or proposal of Seller, shall constitute an offer to enter into the purchase agreement it describes, and it, together with these Purchase Terms (together, the “Agreement”), shall be the complete and exclusive statement of such purchase agreement. Seller shall accept the offer in writing. By so accepting, or by processing the Purchase Order, Seller agrees to be bound by the Agreement and unequivocally waives all other terms and conditions. No modifications or changes proposed by Seller shall be valid unless confirmed in writing by PPI. PPI is not bound by any printed matter on Seller’s acknowledgement forms or invoices that impose additional conditions or conditions not agreeable to the terms on this Purchase Order.
- PRICES AND TAXES. Unless otherwise stated on the Purchase Order, the price for the Products includes all charges, including packaging, shipping and delivery charges and all taxes, duties and tariffs, except for excise, sale, use, value-added and similar taxes that Seller is required by law to collect from PPI. Seller will separately state such taxes in Seller’s invoices. Sales and use taxes shall not be added to the purchase price of items designated as nontaxable by PPI.
- CHANGES. PPI, at any time, by written order, may change the design (including drawings, materials, and specifications), processing, method of packing and shipping, and the place, quantity, and time of delivery, of the supplies and services. Seller shall not make any change in the design, processing, packing, shipping or place and time of delivery of the supplies and services without PPI’s written approval. Unless otherwise stated on the Purchase Order, all Products must meet original manufacturer’s specifications for form, fit and function and be new and unused and in good condition. Seller shall notify PPI in writing of any changes it plans to make that may affect the stability or performance of any Products or its plans to discontinue manufacturing or distribution of products at least 180 days before making the changes. PPI will have the right to review and approve the proposed changes, provided that such review and approval shall not relieve Seller of the obligation to deliver Products that meet PPI’s specifications.
- FABRICATION AND MATERIAL COMMITMENTS. Unless otherwise authorized in writing by PPI, Seller shall not make commitments for material or fabricate in advance of time necessary to permit shipment on prescribed delivery dates. PPI may cancel or reschedule the delivery of all or any part of a Purchase Order at any time.
- PACKING, MARKING, ROUTING, AND SHIPPING. Seller shall pack and ship the articles in accordance with the requirements of PPI and the carrier transporting such articles. Seller shall mark each package in accordance with the current edition of PPI’s packaging specifications and additional instructions of PPI and the carrier. Seller shall reimburse PPI for all expenses incurred by PPI as a result of improper packing, marking, routing, or shipping. Seller shall not charge separately for packing, marking, or shipping, or for materials used therein, unless PPI specifies, in writing, that it will separately reimburse Seller for such charges. PPI may require shipment of any of the articles by a more expeditious method of transportation if Seller fails to meet the shipping requirements of this Purchase Order, and Seller shall bear the cost difference of such transportation unless such failure is due, as defined in Section 6, to an excusable delay. All shipments will be F.O.B. destination; i.e., Seller shall be responsible for any loss, damage, or injury which results from or occurs during shipment of Products and transfer of title to the Products occurs only at the time the Products are physically received by PPI at PPI’s designated location.
If the Products are not shipped in accordance with PPI’s direction and the instructions set out in this Purchase Order, Seller shall be responsible for any excess cost thereby caused. Except for customary quantity variations recognized by trade practice, quantities in excess of those specified will not be accepted, and may be returned to Seller freight collect at PPI’s discretion.
- DELAYS. In the event of any delay by Seller, including any delay as a result of Seller’s failure or refusal to proceed with any purchase order, or failure to make delivery according to the specified delivery schedule, PPI may cancel any remaining open balances of this Purchase Order, unless such delay is an excusable delay (as provided in this Section 6), acknowledged as such in writing by PPI. As used herein, the term “excusable delay” means any delay resulting from causes or events beyond reasonable control and without fault or negligence on the part of the party involved, including but not limited to acts of God or of the public enemy, fires, floods, any allocation order issued by the Government or any other act of Government, and delays of a Seller due to such causes. In the event of a delay in performance, PPI, at its option, may acquire possession of all finished Products, work-in-process, and parts and materials produced or acquired for the work hereof, and Seller shall deliver such articles to PPI F.O.B. destination.
Seller shall notify PPI promptly if it has reason to believe that it may not be able to meet one or more delivery dates. The notification does not excuse Seller from the late delivery, but provides PPI the opportunity to elect to expedite shipment of the
Product(s) affected by the delayed delivery so as to minimum costs incurred by PPI as a result of the late delivery. Without limitation to any other available relief or remedy to which PPI may be entitled, if Seller had previously agreed to a delivery date, PPI may opt to bill Seller or take credit for the difference between the original shipping fee and the cost for the expedited shipping service.
- INSPECTION AND ACCEPTANCE OF PRODUCTS. Inspection and test of the articles by PPI may at PPI’s option be made at Seller’s plant and/or points of destination. At PPI’s option, PPI may make a surveillance of Seller’s inspection, quality, and reliability procedures as well as the data supporting same. Acceptance of the Products by PPI shall not relieve Seller from any obligations and warranties hereunder. In no event shall payment be deemed to constitute acceptance. Any initial inspection performed by PPI upon receipt of the Products is a conditional acceptance and shall not waive the right of PPI to return Products with latent defects within a reasonable time after the defect has become apparent.
PPI may reject, or retain and correct, Products that fail to meet the requirements of this Purchase Order. Upon notice of such nonconformity, Seller shall promptly correct or replace Products at Seller’s expense. If Seller shall fail to do so, PPI may cancel this Purchase Order as to all such Products, and in addition, may cancel the then remaining balance of this Purchase Order. After notice to Seller, all such Products will be held or returned at Seller’s risk and expense. If PPI elects to correct the Products, it shall consult with Seller on the method of correction. Seller shall reimburse PPI for reasonable expenses resulting from rejection or correction.
- PROPERTY USED OR FURNISHED. Unless otherwise specified herein, any necessary special tools, dies or other equipment shall be furnished at the expense of Seller. If agreed and specified, or if charged to PPI, any necessary tools or dies or other equipment shall be the property of PPI, and are for the sole use of PPI. If Seller is not keeping the tools, dies or other equipment in Seller’s plant, Seller must identify the party which is holding this property. If Seller does not provide such party’s name, PPI has the right for refund on tools, dies or other equipment involved. Notwithstanding the foregoing, Seller agrees that it will use the designs, tools, patterns, drawings, information and equipment for PPI in the production of articles called for herein and not otherwise except with PPI’s written consent. PPI does not warrant the accuracy of the tools and fixtures that it furnishes, and all work must be in strict accordance with blueprints and specifications. While such property is in Seller’s possession, Seller bears all responsibility for any loss or damage, regardless of cause or fault, to property furnished or owned by PPI, but excluding normal wear and tear. Seller shall at its expense, insure for reasonable value, house and maintain on Seller’s premises, and identify as property of PPI all such articles. PPI shall have the right to enter Seller’s premises at reasonable times to inspect such articles and Seller’s records pertaining thereto. Upon completion or termination of this Purchase Order, all items furnished or owned by PPI shall be forwarded to PPI within seven (7) days unless otherwise specified by PPI. Delivery shall be by a carrier selected by PPI, at PPI’s option F.O.B. carrier, Seller’s facility, or F.O.B. PPI’s facility, properly packed and marked in accordance with the requirements of the carrier and PPI.
- SAMPLES. If the Purchase Order specifies any samples, Seller, at its own expense, shall fabricate from production tooling and processes and furnish to PPI the number of samples specified on the face of the Purchase Order. Seller shall inspect such samples before delivery and shall certify inspection results in the manner required by PPI.
- INDEMNITY. Except as may be otherwise expressly agreed to in writing between PPI and Seller, in no case shall PPI indemnify or hold harmless Seller against any claim for personal injury, property, incidental, consequential, or special damages arising out of or resulting from improper or defective design, material, or workmanship in Products purchased from Seller hereunder. Seller agrees to defend, indemnify and hold PPI and its directors, officers, employees, and insurance carriers harmless from and against all claims, liabilities, demands, causes of action, and expenses (including reasonable attorney’s fees) suffered or incurred by PPI as a result of personal injury, property damage or other damage suffered or incurred by any person or entity to the extent such personal injury, property damage or other damage is caused by or results from (1) Seller’s failure to manufacture any Product in accordance with PPI’s specifications and requirements or Seller’s published specifications, (2) failure of any Product to perform in accordance with Seller’s published specifications, (3) Seller’s failure to provide complete and accurate information regarding any Product, the hazards and risks associated with its use, or the steps necessary to use the Product safely, (4) any act or omission on the part of Seller and its employees, agents, subcontractors, or vendors in performing pursuant to the Agreement, or (5) use by PPI or its direct or indirect customers of Seller’s Products.
Seller agrees to assume full responsibility for the defense of any suit or proceeding brought against PPI, which alleges in whole or in part that any Product violates or infringes any patent, trademark, copyright, trade secret or any other proprietary right. Seller agrees that PPI, at its sole option, may actively participate in the suit or proceedings through counsel of its own choosing. Seller further agrees to indemnify PPI against any and all costs (including reasonable attorney’s fees), expenses, losses, liabilities, royalties, loss of profits, damages, settlement, and judgment suffered or incurred by PPI as a result of the claim of infringement and, if requested by PPI, to use
its best efforts to procure for PPI the right to continue using the infringing Products, replace or modify the Product(s) so it becomes noninfringing without reducing its performance, or accept return of said Product(s) and refund to PPI the purchase price and any transportation and installation costs thereof. Seller’s obligations under this Paragraph shall survive acceptance of the Products or termination of the Agreement. Seller’s obligations shall apply even though PPI furnishes all or any portion of the design and specifies all or any portion of the processing.
- WARRANTY. (a) Seller warrants that all Products delivered hereunder shall be free from defects in workmanship, material, and manufacture; shall comply with the requirements of the Agreement, including any drawings or specifications incorporated herein or samples furnished by Seller, and where design is Seller’s responsibility, shall be free from defects in design. (b) Seller warrants all Products purchased hereunder shall be of merchantable quality and shall be fit and suitable for the purposes intended by PPI. The foregoing warranties shall constitute conditions and are in addition to all other warranties, whether expressed or implied, and shall survive any delivery, inspection, acceptance, or payment to Seller. (c) Seller warrants that all articles, material and work covered by this Purchase Order will conform to the specifications, drawings, samples, or other description furnished by PPI and will be fit and sufficient for the purpose intended, merchantable, of good material and workmanship free of defects. (d) Seller warrants that the use and sale of the Products delivered hereunder and the designs upon which they are based do not infringe any present or future patent, copyright, trademark, industrial design right, or other proprietary right. (e) PPI’s approval of Seller’s material or design shall not relieve Seller of the warranties set forth in this clause, nor shall waiver by PPI of any drawing or specification requirement for one or more of the items constitute a waiver of such requirements for the remaining items to be delivered hereunder unless so stated by PPI in writing. The provisions of this clause shall not limit or affect the rights of PPI under Section 7 of these Purchase Terms.
- TERMINATION. PPI may terminate its purchase obligations hereunder in whole or in part at any time by written notice of termination to Seller. PPI shall have such right of termination notwithstanding the existence of an excusable delay as defined herein. Upon receipt of the notice of termination, Seller, unless otherwise directed by PPI, shall; (a) terminate promptly all work under this Purchase Order; (b) transfer title and deliver to PPI the finished work, the work-in-process, and the parts and materials which Seller produced or acquired in accordance with this Purchase Order and which Seller cannot use in producing Products for itself or for others; (c) settle all claims by subcontractors for actual costs that are rendered unrecoverable by such termination, and; (d) take any actions reasonably necessary to protect property in Seller’s possession in which PPI has an interest. Upon termination by PPI under this section, PPI’s obligations to Seller shall be; (e) the purchase order price for all finished work and completed services which conform to the requirements of the purchase order; (f) Seller’s actual cost of the work-in-process and parts and materials transferred to PPI in accordance with subsection (b) hereof; (g) Seller’s actual costs of settling the claims by subcontractors of subsection (d) hereof; but PPI’s obligations shall not exceed those PPI would have had to Seller in the absence of termination. PPI’s obligations as indicated by this Section 12 are without limitation on PPI’s termination right pursuant to Section 13 (Assignment, Delegation and Insolvency). In no event shall PPI be liable for any indirect or consequential damages or loss of profits, whether characterized as direct or indirect damages.
Seller shall furnish to PPI, within one month after termination date, Seller’s termination claim, which shall consist exclusively of the items of PPI’s obligations to Seller set forth in this Section 12. PPI may audit Seller’s records, before or subsequent to payment to verify amounts requested in Seller’s termination claim. PPI shall have no obligation to Seller if PPI terminates its purchase obligations of this Purchase Order because of default by Seller.
- ASSIGNMENT, DELEGATION AND INSOLVENCY. Assignment of this Agreement, or any interest therein or any payment due or to become due, or delegation of any duty therein without the written consent of PPI shall be void. If Seller ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature), or if any proceeding under the bankruptcy or insolvency laws brought by or against Seller, or a receiver for Seller is appointed or applied for, an assignment for the benefit of creditors is made by Seller, PPI may terminate the order without liability except for deliveries previously made or for Products covered by the order then completed and subsequently delivered in accordance with the terms on the order.
- REMEDIES. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law.
15. PROPRIETARY RIGHTS. (a) Seller grants to PPI a nonexclusive, royalty free, irrevocable license to rebuild and have rebuilt the supplies or products purchased by PPI under this Purchase Order. (b) Seller will neither assert nor transfer to another a right to assert against PPI or customer thereof, any copyright of Seller that is applicable to any works of authorship furnished to PPI in the course of Seller’s activity hereunder. (c) All
technical information disclosed heretofore and hereafter by Seller to PPI in connection with these products or services is disclosed on a non-confidential basis. (d) Seller may not refer to PPI in any advertising or other public release without the written consent of PPI. (e) This document and any material transmitted herewith, including but not limited to drawings, schematics, or specifications, may contain information proprietary to PPI, its subsidiaries or affiliates, and such information is not to be used by the recipient for any purpose other than the purpose for which it was transmitted.
The Agreement does not grant to Seller any right, title, or interest in or to PPI’s proprietary rights or information, including, but not limited to, PPI’s name, trademarks, trade names, trade dress, trade symbols, copyrights, patents, patent applications, inventions, trade secrets, product names or designations, model names or numbers, processes, models, prototypes, designs, or formulas. Seller shall not use PPI’s trade names or trademarks on any of its products or in conjunction with Seller’s business operations except as specifically authorized in writing by PPI. In addition, all improvements to PPI’s existing products and all new inventions and designs for PPI’s products shall be PPI’s property. Seller will not have any right, title or interest in or to them. Seller hereby irrevocably and unconditionally assigns to PPI all right, title and interest in and to such designs, products, improvements and inventions, and as requested by PPI, Seller will execute any reasonable document confirming PPI’s ownership of these designs, products, and inventions. Although Seller shall own new product designs and improvements to products made by Seller for Seller’s use, PPI shall possess a non-exclusive, irrevocable, worldwide license to use such products for its business. PPI’s proprietary information shall be maintained in confidence and not disclosed to third parties without the written consent of PPI, and such documents, including but not limited to drawings, schematics, or specifications, will be returned to PPI on request.
16. CONFIDENTIAL INFORMATION. Supplier agrees that all of the information which it obtains while performing the work required by the Agreement or which is disclosed to it by PPI under the Agreement (including, but not limited to, information regarding design and specifications, PPI’s forecasts, PPI’s facilities, manufacturing processes, and existing or proposed products) is PPI’s confidential and proprietary information, regardless of the form of disclosure. Supplier agrees that it will maintain all of PPI’s confidential and proprietary information in confidence, will not disclose or disseminate the information to any third party, without PPI’s express, prior written consent, and will use the information only for the purpose of fulfilling its obligations under the Agreement. Supplier agrees that it will disclose the information provided by PPI only to Supplier’s employees, officers, directors, and consultants who have signed agreements obligating them to keep the information in confidence, have been advised of the confidential and proprietary nature of the information, and have a need to know the information for the purposes of carrying out Supplier’s obligations under the Agreement.
17. GOVERNING LAW. The contract resulting from the acceptance of this Purchase Order is to be construed according to the laws of the Commonwealth of Massachusetts, without regard to its choice of laws provisions. PPI and Seller specifically agree that any legal action brought relating to Products purchased or relating to this contract will be brought and tried in Massachusetts. PPI and Seller agree that the contract resulting from the acceptance of this Purchase Order is to be governed where applicable by the provisions of the Uniform Commercial Code and not the United Nations Convention on Contracts for the International Sale of Goods.
18. COMPLIANCE WITH LAWS; CODE OF CONDUCT. Seller agrees to comply with, and warrants that the products and services which are the subject of this Purchase Order, and the production thereof, comply with, all applicable state, federal, foreign and local laws, rules and regulations. Further, Seller agrees it will comply with PPI’s Supplier Code of Conduct, attached hereto as Annex 1 and made a part of this Purchase Order in its entirety.
19. WAIVER. PPI’s failure to insist upon the performance of any or all terms of the Agreement or failure to exercise any rights or remedies hereunder shall not be construed as a waiver of the future performance of any such terms or of the future exercise of such rights or remedies unless otherwise provided for herein.
20. SEVERABILITY. In the event that any one or more of the provisions contained in the Agreement shall for any reason be held by a court of competent jurisdiction to be unenforceable in any respect, such holding shall not affect any other provisions of the Agreement, and the Agreement shall then be construed as if such unenforceable provisions are not a part hereof.
21. SURVIVING PROVISIONS. All provisions that by their nature are intended to survive, including but not limited to Sections 10 (Indemnity), 11 (Warranty), 14 (Remedies), 15 (Proprietary Rights), 16 (Confidential Information), 17 (Governing Law), 18 (Compliance with Laws), and 20 (Severability) shall survive any termination or expiration of the Agreement.
[End of Purchase terms]
SUPPLIER CODE OF CONDUCT
In addition to any restrictions on the use of subcontractors that are otherwise agreed to between Supplier and Particles Plus or the applicable subsidiary, Supplier will not use any subcontractor in connection with any Particles Plus or subsidiary business unless the subcontractor has received a copy of this Code.
Supplier will comply with all laws and regulations applicable to its business, as well as the standards of its industry, including those pertaining to the manufacture, pricing, sale, distribution, labeling, transport, import, and export of goods and services. Without limiting this requirement, Supplier will not: (A) violate, misappropriate or infringe upon the intellectual property rights of any person or entity, including Particles Plus and its subsidiaries; or (B) engage in any activities which would violate any applicable laws and regulations relating to (1) bribery, corruption or illegal payments, (2) unfair competition or unfair and deceptive trade practices, (3) the environment, (4) health and safety, (5) international trade, including exports and imports, (6) data privacy and security, (7) money laundering, (8) labor and employment, (9) contracting with governmental entities, or (10) healthcare and medical devices.
INTEGRITY AND COMPLIANCE
Supplier must be committed to the highest standards of integrity in conducting its business. Specifically:
- Corruption, Extortion or Embezzlement; Improper Advantage. Supplier will not engage in corruption, extortion or embezzlement in any form, offer or accept bribes or employ any other means to obtain an undue or improper advantage. Supplier must comply with all applicable anti-corruption laws and regulations of the countries in which it operates, the U.S. Foreign Corrupt Practices Act, the UK Anti-Bribery Act, the OECD Anti-Bribery Convention and all international anti-corruption conventions. Additionally, Supplier must not bribe or provide kickbacks or any other improper payments or improper gifts to any officer, director, employee, representative or agent of Particles Plus or any of its subsidiaries. Supplier must immediately report to Particles Plus any circumstance where an officer, director, employee, representative or agent of Particles Plus or any of its subsidiaries has made any such improper request or demand of the Supplier.
- Accounting Records. Supplier’s accounting records must (1) be kept and presented according to the laws of each applicable jurisdiction, (2) in reasonable detail, accurately and fairly reflect transactions, assets, liabilities, revenues and expenses, and (3) not contain any false or misleading entries.
- Conflicts of Interest. Supplier must immediately report to Particles Plus or the applicable Particles Plus subsidiary any “conflict of interest” of which it becomes aware. A “conflict of interest” is any circumstance, transaction or relationship directly or indirectly involving the Supplier in which the private interest of any employee of Particles Plus or any of its subsidiaries improperly interferes, or even appears to improperly interfere, with the interests of Particles Plus and/or its subsidiaries.
- Reporting Violations, Non-Retaliation. Supplier is expected to have a policy prohibiting unlawful and inappropriate conduct that provides employees, and other representatives of Supplier, a way to raise concerns and a process for investigating and resolving incidents. Supplier must not tolerate retaliation against any employee who makes a good faith report of abuse, intimidation, discrimination, harassment or any violation of law or of this Code, or who assists in the investigation of any report.
Supplier must comply with all applicable labor and employment laws and regulations. Specifically:
- Supplier must comply with all applicable wage and hour laws and regulations, including those relating to minimum wage, overtime, and other elements of compensation, and must provide all legally mandated benefits.
- Hours of Work. Supplier must maintain work hours in compliance with all applicable laws and regulations. Supplier will not require employees to work more than any limits on regular and overtime hours allowed under applicable law.
- Forced Labor / Prison Labor. Supplier will not use forced or involuntary labor, including prison, bonded, or indentured labor, or engage in any form of human trafficking.
- Child Labor. Supplier will not use child labor. “Child” means any person who is either (1) younger than 16, or (2) younger than the minimum age required for employment under applicable law. Supplier will comply with all applicable laws and regulations regarding the employment of minors.
- Fair Treatment. Consistent with applicable employment and labor laws, Supplier will treat each employee with dignity and respect, and will not threaten workers with or subject them to harsh or inhumane treatment, including sexual harassment, sexual abuse, corporal punishment, mental or physical coercion or verbal abuse.
- Supplier will not unlawfully discriminate against any worker in its hiring and employment practices on the basis of race, sexual orientation, gender identity, characteristic.
- Freedom of Association. Supplier must respect workers’ rights to associate freely as permitted by and in compliance with all applicable laws.
ENVIRONMENTAL, HEALTH AND SAFETY
Supplier must comply with all applicable environmental, health and safety laws and regulations. Specifically:
- Workplace Safety & Emergency Planning. Supplier must provide a safe and healthy workplace for employees by meeting, and endeavoring to exceed, international safety standards. Supplier must have procedures in place for handling emergencies such as fire, spills, and natural disasters.
- Environmental Protection. Supplier must seek ways to conserve natural resources and energy, reduce waste and the use of hazardous substances, and minimize adverse impacts on the environment.
MANAGEMENT SYSTEMS, MONITORING COMPLIANCE AND REPORTING
Management System and Communication. Supplier must establish and maintain a management system reasonably designed to ensure compliance with, mitigate the risks identified in, and facilitate continuous improvement with respect to, this Code. Supplier must ensure that this Code is appropriately communicated to all of its officers, directors, employees, representatives, agents and subcontractors.
Monitoring and Compliance. Supplier must maintain all documentation necessary to demonstrate its compliance with this Code and will provide Particles Plus or its applicable subsidiary access to such documentation upon the request of Particles Plus or its applicable subsidiary. Supplier understands that Particles Plus, its subsidiaries or our designated agents (including third parties) may engage in monitoring activities to assess compliance with this Code, including on-site inspection of facilities and review of books and records. Neither Particles Plus nor any of its subsidiaries or authorized agents assume any duty to monitor or ensure compliance with this Code, and Supplier understands that Supplier is solely responsible for full compliance with this Code by its officers, directors, employees, representatives and agents.
Reporting. Supplier must immediately notify Particles Plus +1-781-341-6898, upon learning of any known or suspected improper behavior by Supplier or by employees of Particles Plus or its subsidiaries.