MIMEDX GROUP INC. AND SUBSIDIARIES (COLLECTIVELY, “MIMEDX”) STANDARD PURCHASE ORDER TERMS AND CONDITIONS
The Purchase Order attached to or included with these PO Terms (collectively, the “Order”) is expressly subject to Seller’s agreement to these PO Terms. This Order shall constitute a binding contract upon the earlier of Seller’s acceptance of the Order or Seller’s performance of any portion of this Order, whether by delivery of Goods or performance of services, as applicable. MIMEDX objects to all additions, exceptions, or changes to the Order, whether contained in any printed form of Seller or elsewhere, unless such terms are expressly approved by MIMEDX in writing. There may be no substitutes or variations from specifications or instructions, or partial shipments, without the prior written approval of MIMEDX.
- Definitions. For purposes of this Order, the term (i) “Goods” means all goods (including associated documentation) and services provided by Seller under this Purchase Order, and (ii) “MIMEDX” means one or more of the affiliated companies of MIMEDX Group, Inc. identified on the Order.
- Conflicts and Priority. In the event of a conflict between the terms of these PO Terms and the terms of any previously existing, fully signed and executed agreement between the parties relating to the subject of this Order (“Existing Agreement”), the terms and conditions of the Existing Agreement shall control, unless an order or change order expresses specific intent to supersede the terms of the Existing Agreement. Except where an Existing Agreement has been executed by the parties, this Order constitutes the entire agreement between the parties with respect to the Goods and/or services reflected in this Order.
- Price and Payment. Seller shall invoice MIMEDX the purchase price specified in this Order (“Purchase Price”) after delivery of the Goods to MIMEDX or performance of the services, as applicable. MIMEDX shall pay Seller the Purchase Price net 60 days, from the later of (I) receipt of an accurate and proper invoice, or (II) acceptance of the Goods. MIMEDX may withhold all or part of payment if MIMEDX disputes Seller’s compliance with the terms of this Order. MIMEDX’s payment of this Order is not acceptance of the Goods. The Order number must appear on all invoices, notices and packing materials. Seller’s price shall include all taxes, except sales and use taxes. MIMEDX shall provide Seller with MIMEDX’s exemption certificate where applicable. Seller shall make any claims for unpaid fees, invoices, or other amounts owing to it, within one hundred twenty (120) days of the earlier of (A) the date of Seller’s first invoice for such amounts or (B) the date on which the alleged payment obligation accrued. If Seller fails to make a claim within the foregoing time period, then MIMEDX will not be obligated to make payments for, or investigate such claims.
- Travel and Related Expenses (for Services). MIMEDX agrees to reimburse Seller for reasonable travel expenses incurred in connection with services performed pursuant to this Order, provided such expenses are expressly approved by MIMEDX in writing in advance and incurred in accordance with MIMEDX’s Corporate Travel Policy, a copy of which shall be made available on request, where applicable. MIMEDX shall not be obligated to reimburse Seller for any expense for which Seller does not provide a receipt as and when requested.
- Shipment and Delivery. Seller shall deliver Goods DDP Destination (Incoterms 2010), unless otherwise specified in the Order. For clarity, this means that Supplier shall be responsible for paying all freight costs and delivering the Goods to the named placed of destination, and where applicable, cleared for import with all duties and customs formalities fulfilled. Seller must comply at Seller’s expense with any packing and shipping instructions issued by MIMEDX. Seller is responsible for risk of loss or damage to the Goods caused by packing. Seller is responsible for additional costs caused by Seller’s failure to comply with shipping instructions. Seller must give MIMEDX immediate notice of its anticipated failure to meet the shipment or delivery schedule.
- Title and Risk of Loss. Title to and risk of loss of the Goods shall pass to MIMEDX upon delivery and acceptance of the Goods.
- Acceptance and Rejection. All Goods purchased under this Order are subject to MIMEDX’s acceptance. MIMEDX’s count of Goods will be conclusive on shipments not accompanied by a packing slip. MIMEDX reserves the right to reject, refuse acceptance of, or revoke acceptance of, any Goods. MIMEDX shall be allowed the later of a reasonable period of time or thirty (30) days to inspect and accept the Goods and to notify Seller of any nonconformance within the terms and conditions of the Order. Payment for any Goods under this Order shall not be deemed to be acceptance of the Goods. MIMEDX’s inspection or acceptance of the Goods shall not (i) relieve Seller of its obligation to comply with the terms of the Order, including without limitation all applicable warranties, or (ii) be conclusive with respect to latent defects, fraud or gross mistakes. Rejected Goods may be returned to Seller or held by MIMEDX for replacement of such rejected or returned Goods, in either event, at Seller’s risk and expense. No rejected or returned Goods shall be replaced without MIMEDX’s written approval. If Seller fails to promptly replace or correct any Goods to MIMEDX’s satisfaction, MIMEDX may purchase or replace the same and Seller shall be liable to MIMEDX for any additional cost or expense thereby incurred by MIMEDX.
a. Seller warrants that all Goods delivered pursuant to this Order shall (i) be new (unless otherwise expressly agreed in writing), (ii) be free of design, material and workmanship defects, (iii) be fit and safe for the intended purpose, (iv) not infringe the intellectual property rights of any third party, (v) conform with the Order, (vi) be delivered free and clear of any liens and encumbrances, and (vii) have been or will be produced in compliance with the Fair Labor Standards Act of 1938 (29 U.S.C. 201-219), as amended from time to time.
b. Seller warrants that any services performed pursuant to this Order shall be performed in a professional and workmanlike manner, with requisite care, skill and diligence, in accordance with industry standards by individuals who are appropriately trained, experienced and qualified.
c. Seller warrants it has the right to sell and pass title to the Goods to MIMEDX. Seller further represents, warrants and certifies that it shall maintain (i) in full force and effect all licenses, permits, authorizations, registrations and qualifications necessary to perform its obligations hereunder, and (ii) all records relating to performance of this Order in compliance with applicable laws, but not less than four (4) years.
d. Seller’s warranties shall run to MIMEDX and/or its customers. Seller shall repair, replace or re-perform, at its expense (including any installation or transportation cost, where applicable), any defective or non-conforming Goods for a period equal to the longer of: (i) 12 months from MIMEDX’s first use of the Goods, or (ii) such longer warranty period provided in Seller’s standard or other agreed warranty period for such Goods. MIMEDX’s acceptance of the Goods shall not relieve Seller of its warranty obligations. If Seller fails to correct a defect within a reasonable period of time, or in the event of an emergency, MIMEDX may repair or replace any defect in warranted Goods at Seller’s expense. With respect to latent defects, fraud or gross error or mistake, Seller shall repair or replace, at Seller’s expense, such defect irrespective of when the defect was discovered.
- Failure to Timely Perform. If Goods are not shipped, delivered, or performed on time, or in the event of any other failure to perform this Order by Seller, MIMEDX may, at its option, in whole or in part, and without waiving its claim for damages against Seller: (a) cancel the Order; (b) return all or a portion of the Goods to Seller at Seller’s expense; or (c) obtain substitute Goods. In such event, Seller shall pay MIMEDX the difference between the Purchase Price and the price paid by MIMEDX for any substitute or replacement Goods. MIMEDX shall use reasonable commercial efforts to mitigate the amount to be paid by Seller under this Section.
- Non-Discrimination. The parties hereby incorporate the requirements of 41 C.F.R. §§ 60-1.4(a), 60-250.5(a), 60-300.5(a), 60-741.5(a), and 29 CFR Part 471, Appendix A to Subpart A, if applicable. Furthermore, it is the policy of MIMEDX not to engage in any discrimination practices based on race, religion, sex, color, national origin, ancestry, age, physical or mental disability, sexual orientation, gender identity/expression, veteran status, pregnancy, marital status, creed, status with regard to public assistance or any other status protected by federal, state or local law (“Protected Class”). Seller hereby represents that it is an equal opportunity employer and agrees not to discriminate against any member of the Protected Class in its employment practices. Seller further agrees not to discriminate against qualified individuals with disabilities in any aspect of employment and will make reasonable accommodations to disabled individuals who are otherwise qualified, so long as such accommodations do not cause an undue hardship. A violation of this Section constitutes a material breach of the Order. The Seller and any subcontractor thereof shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. The Seller and any subcontractor thereof shall abide by the requirements of 41 CFR 60-741.5(d). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
- Compliance with Laws. Each of MIMEDX and Seller agree that it will strictly comply with all applicable international, federal, state and local laws and regulations related to its operations, including but not limited to (i) all applicable customs and import/export laws, including rules of origin marking, and (ii) applicable laws, treaties, conventions and regulations prohibiting any form of child labor or other exploitation of children in the manufacturing and delivery of Seller’s products or services.
- Debarment. In accordance with the provisions of 48 C.F.R. § 52.209-6, Supplier represents, warrants and certifies that neither it nor its principals or employees providing services in connection with this purchase order was or is debarred, suspended, proposed for debarment or otherwise determined to be ineligible to participate in federal health care programs (as that term is defined in 42 U.S.C. 1320a-7b(f)) or convicted of a criminal offense related to the provision of health care items or services, but has not yet been debarred, suspended, proposed for debarment or otherwise determined to be ineligible to participate in federal health care programs. In the event that Supplier, or any of its principals or employees, is debarred, suspended, proposed for debarment or otherwise determined to be ineligible to participate in federal health care programs or convicted of a criminal offense related to the provision of health care items or services, Supplier will notify MIMEDX immediately.
- Confidentiality. Seller agrees (a) to protect the Confidential Information of MIMEDX with at least the same degree of care used to protect its own most confidential information; (b) not to use (except for the purpose described herein), publish or disclose to third parties such Confidential Information; and, (c) upon the request of MIMEDX, to promptly deliver all written copies of its Confidential Information. “Confidential Information” shall include any information or material provided by MIMEDX to Seller, unless such information is already known to the recipient at time of disclosure or is now or in the future becomes publicly known other than as a result of a breach of this Section. All devices, drawings, data, designs, reports, and other technical information provided by MIMEDX remains the sole property of MIMEDX and no right to such property is granted to Seller except to the limited extent necessary to perform this Order.
- Termination. MIMEDX may, for cause or for its convenience, terminate or cancel all or any part of the Order upon notice to Seller. Upon termination, Seller shall immediately stop work on the terminated portion of the Order. If such termination is for a reason other than breach of this Order by Seller, Seller shall submit to MIMEDX an invoice with supporting information setting forth the Purchase Price for Goods delivered prior to the notice of termination, or in the case of services, a pro-rated amount of the Purchase Price based on the percentage of services performed prior to termination. The terms and conditions of Section 8 (Warranty), Section 13 (Confidentiality) and Section 15 (Indemnification), shall survive the termination of the Order and/or the expiration of the Order by virtue of delivery and acceptance of the Goods under the Order.
- Indemnification. Seller shall defend, indemnify and hold MIMEDX, its successors, assigns, officers, directors, and employees harmless with respect to all fines, penalties, claims, liability, damage, loss and expenses, including reasonable attorney’s fees, environmental claims or liabilities, which are related to, caused by, or arise in connection with: (i) defects in the Goods or other non-conformance of the Goods to the terms of this Order; (ii) breach of any provision of this Order including breach of warranty; (iii) failure to deliver the Goods on a timely basis, including MIMEDX’s cost to cover; (iv) failure of the Goods to meet the requirements of the applicable federal, state, and local law, ordinances, regulations, rules, declarations, interpretations and orders law, (v) fraud, negligence or willful misconduct of Seller, (vi) any claims by Seller’s employees against MIMEDX, and (vii) any recall of Goods, except to the extent that any of the foregoing arise from the negligence or willful misconduct of MIMEDX. In the event of a claim under this paragraph, MIMEDX may at its option cancel this Order or defer acceptance of the balance of the Goods ordered until the claim is resolved. If MIMEDX is enjoined from use of the Goods, Seller shall, at MIMEDX’s option, either procure for MIMEDX the right to continue using the Goods, replace the Goods with substantially equivalent Goods, modify the Goods so as to be usable by MIMEDX, or repurchase the Goods at the price set forth in this Order. With respect to claims against MIMEDX by Seller’s employees, Seller agrees to expressly waive its immunity as a complying employer under applicable workers’ compensation laws, but only to the extent that such immunity would bar or affect recovery under or enforcement of this indemnification obligation. With respect to the State of Ohio, this waiver applies to Section 35, Article II of the Ohio Constitution and Ohio Rev. Code Section 4123.74.
- Limitation of Liability. MIMEDX SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL DAMAGES OR LOST PROFITS. MIMEDX’S TOTAL LIABILITY UNDER THIS ORDER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE.
- Requirements for On-Site Activities.
a. MIMEDX Policies. At any time while Seller is on MIMEDX’s site, Seller will comply with any MIMEDX policies provided or made available to Seller.
b. Access to Premises. While on MIMEDX’s premises, Seller, its agents, employees, subcontractors, or assigns: (i) shall comply with MIMEDX’s then current policies with respect to conduct of visitors; (ii) shall display a MIMEDX issued identification badge and act in a professional manner at all times; and (iii) shall enter only those portions of the premises as approved by MIMEDX
a. If Seller is supplying Goods, Seller shall maintain product liability insurance with a minimum limit of $5,000,000 per occurrence.
b. At any time while Seller is on MIMEDX’s premises, Seller shall (a) comply with applicable Workers’ Compensation laws and maintain Employer’s liability insurance with limits of $1,000,000 each accident and shall waive subrogation rights against MIMEDX for workers’ compensation benefits; (b) maintain commercial general liability insurance with limits of not less than $1,000,000 each occurrence and aggregate; and, (c) maintain commercial general automobile liability insurance with limits for bodily injury and property damage of not less than $1,000,000 each accident. MIMEDX shall be named as an additional insured under the Commercial General Liability and Auto Liability policies described above.
c. Policies written on a claims-made basis shall be maintained for five (5) years after performance of the Order is completed. If requested by MIMEDX, Seller shall provide MIMEDX with an acceptable certificate of insurance evidencing the insurance required under this Order. Any such certificate of insurance must state that the insurance carrier has issued the insurance specified, that such policies are in force, and that the insurance carrier will give MIMEDX thirty (30) days prior written notice of any material change in, or cancellation of, such policies.
- Miscellaneous. Seller shall be an independent contractor of MIMEDX in the performance of this Order. Seller may not assign this Order without MIMEDX’s prior written consent. No waiver by either party of any default shall be deemed a waiver of any subsequent default. If any provision of this Order is held to be invalid, such invalidity shall not affect the remaining provisions of this Order. This Order shall be governed by the laws of the State of Georgia, without reference to conflicts of law principles.