Terms and Conditions of Purchase

  1. Applicability. The purchase order (“Purchase Order”) together with these terms and conditions, which are attached, referenced or hyperlinked from the Purchase Order or otherwise provided or made available to Vendor, collectively constitute a binding agreement (the “Agreement”) between the Buyer and the Vendor (each as indicated on the face of the Purchase Order), and apply to all purchases of products (“Products”) and services (“Services” and together with the Products, “Ordered Items”) by Buyer from Vendor, as such Ordered Items may be described on the face of the Purchase Order. Forecasts, to the extent any are provided by Buyer, are strictly non-binding, do not constitute any commitment by Buyer to purchase, and may not be relied upon by Vendor. In the event of any conflict between the Agreement and any other document or instrument submitted by Vendor, the Agreement will govern. Vendor must reject Purchase Orders within three (3) days of receipt or the Agreement will be deemed accepted by Vendor. Buyer expressly limits acceptance of the Agreement to the terms stated herein. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgment, acceptance, or confirmation used by Vendor in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer, however such proposal does not operate as a rejection of the Agreement (unless such variances are in the terms of the description, quantity, price or delivery schedule of the Ordered Items), but will be deemed a material alteration thereof, and the Agreement shall be deemed accepted by the Vendor without any additional, different or inconsistent terms. As an exception to the foregoing, any written agreement (including, without limitation, a quality agreement or a confidentiality agreement) between Buyer and Vendor applicable to the Ordered Items and in effect at the time Buyer submits a Purchase Order, that contains terms and conditions that are inconsistent with these terms and conditions, will have priority over these terms and conditions.
  2. Shipment and Deliveries.
    1. Shipment. All Products must be (i) suitably packed or otherwise prepared by Vendor for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with Good Distribution Practices and the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Vendor.
    2. Documentation. Vendor’s name, Buyer’s complete ship to address, and Purchase Order number, must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons and weight and date of shipment. Detailed packing slips must accompany all shipments listing contents of shipment. For import shipments, documentation accompanying the shipment must also include an invoice or commercial invoice referencing, as applicable, the appropriate HS code, country of origin, correct valuation and the identity of the notify party.  All shipping documents must be submitted by email to the Buyer with a copy to CA_TOR_DIST_INV@fresenius-kabi.com and the designated notify party.
    3. Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order. Unless otherwise provided in the Purchase Order, delivery terms are DAP Buyer’s designated destination per INCOTERMS 2020 if shipment is international, and FOB Buyer’s designated destination if shipment is domestic). Title to and all risk of loss or damage to Products remains with Vendor until receipt by Buyer of conforming Products at the required destination in accordance with the applicable delivery term. If delivery is not expected to be made on time, Vendor must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late.
    4. Specifications. Buyer may reject any delivery or cancel all or any part of any Purchase Order if Vendor fails to make delivery in conformity with the terms and conditions of the Agreement including, without limitation, any failure of Products to conform to the specifications (“Specifications”) and performance criteria published by Vendor or otherwise provided to or made available to Buyer, for the Products. Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries.
    5. Alternate Source. If Vendor (i) fails to supply Products, (ii) fails to supply Products meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, then Buyer may, in its sole discretion, purchase alternative products in lieu of the Products, from another supplier, as Buyer in its sole discretion deems necessary. In such event, Vendor shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Products from such other supplier as an alternate source. Upon identification and notification of defective Products or non-conforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Vendor, together with shipping, processing and related costs, if applicable. Within thirty (30) days of the shipment of the defective Product, Vendor shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence.
  3. Prices; Payment. Prices for all Ordered Items will be as stated in the Purchase Order, and include all applicable federal, state, provincial, and local taxes; provided, however, that in no event will the price charged by Vendor under the Agreement be less favorable than the lowest price charged by Vendor to other customers purchasing similar or lesser quantities of the Ordered Items. Payment terms for all Ordered Items will be as stated in the Purchase Order, and if not stated on the Purchase Order shall be 2% 15 Net 60. Buyer shall be entitled to set off any amounts owing at any time from Vendor to Buyer or any of its affiliated companies against any amount payable at any time by Buyer or such affiliates in connection with the Agreement.
  4. Changes. Any change to the Ordered Items set forth in the Purchase Order shall be approved in writing by Buyer before the Vendor implements any such change. Should Vendor change the Ordered Items without prior written approval from Buyer, without waiving any other rights against Vendor Buyer shall not be liable for charges related to such changes.
  5. Inspection/Testing. Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect within ninety (90) days from the date of receipt of Ordered Items and to reject any or all Ordered Items that are in Buyer's judgment defective or nonconforming. Buyer shall provide Vendor notice of rejection of any Ordered Items with respect to any latent defects within thirty (30) days of discovery. Buyer may request, at its option, prompt replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Purchase Order may be returned to Vendor at Vendor’s expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Vendor. Nothing contained in the Agreement relieves Vendor from the obligation of testing, inspection and quality control.
  6. Confidentiality. Any specifications, drawings, sketches, models, samples, tools, technical information, methods, processes, techniques, practices, plans, know-how, trade secrets, or data, written, oral or otherwise (collectively, the “Information”) furnished to Vendor under, or in contemplation of, the Agreement, remain Buyer's property. All copies of such Information, in written, graphic or other tangible form, must be immediately returned to Buyer upon request. The Information shall be kept confidential by Vendor, shall be used only in the fulfillment of Purchase Orders, or in performing Vendor’s obligations under the Agreement, and may be disclosed or used for other purposes only upon such terms as may be agreed upon between Buyer and Vendor in writing.
  7. Proprietary Rights. Vendor hereby grants to Buyer a perpetual, transferable, sublicensable, and royalty-free license to use, sell, offer for sale, import, distribute, advertise, market and promote Ordered Items (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part the patent, copyright, trademark, trade dress or other intellectual property rights of Vendor. Vendor hereby assigns to Buyer, and not otherwise to make use of, any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of the Agreement by Vendor or any employee of Vendor or any other person working under Vendor’s direction, and such assignment shall be considered as additional consideration for the making of the Agreement. Upon request of Buyer or completion of performance of the Agreement, Vendor shall deliver to Buyer any and all information relating to any such invention, improvement or discovery, and shall cause employees or others subject to Vendor’s instruction to sign as appropriate all documents necessary to enable Buyer to file applications for patents throughout the world and to obtain title thereto.
  8. Warranties. Vendor represents and warrants that:
    1. all Ordered Items and Vendor’s performance under the Agreement will (i) conform to all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Vendor, and (ii) be free from defects in design, material, and workmanship;
    2. the Ordered Items (including packaging, labeling and documentation) do not infringe upon or violate any intellectual property, right of privacy or other proprietary or property right of any third party;
    3. Vendor has the right to grant Buyer a license to any software embedded or incorporated into any Ordered Items;
    4. all Services will be performed in a skillful, professional, and workmanlike manner;
    5. Vendor has and will maintain in effect licenses, permissions, authorizations, consents and permits needed to carry out its obligations under the Purchase Order; and 
    6. Vendor has complied and shall comply with all laws applicable to its performance under the Agreement.
  9. No Debarment. Vendor represents, warrants, and covenants that (to the extent applicable) Vendor:
    1. has not been debarred under the Generic Drug Enforcement Act of 1992, 21 U.S.C. § 335 (or similar laws) or otherwise similarly restricted by any governmental or regulatory authority;
    2. is not subject to debarment (or similar restriction) by a governmental or regulatory authority; and
    3. shall not use, in any capacity, in connection with performance under this Purchase Order, any person or entity that has been debarred (or similarly restricted), or is the subject of debarment proceedings (or similar proceedings) by any governmental or regulatory authority.
    If Vendor learns that a person or entity performing on its behalf under this Purchase Order has been debarred (or similarly restricted), or has become the subject of debarment (or similar restriction) proceedings, Vendor shall promptly notify Buyer and shall prohibit such person or entity from performing under this Purchase Order.
  10. Compliance with Laws. By the acceptance of this Agreement, Vendor represents and warrants that the Ordered Items provided pursuant to this Agreement shall be 10. manufactured, labeled, shipped, stored and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, guidelines, orders, and industry standards, including without limitation: the Food and Drugs Act, R.S.C. 1985, c. F-27; current Good Manufacturing Practices; the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, the US Foreign Corrupt Practices Act 1977, any laws relating to: combating money laundering and terrorism financing, the protection of human rights, data protection, the protection of personal information, and customs and immigration, along with any and all regulations, amendments and standards promulgated or adopted under any of the foregoing, all of which are incorporated by reference. Vendor further represents and warrants to Buyer that it shall comply and cause each of its employees, agents and representatives to comply with all such laws, codes, ordinances, regulations, guidelines, orders, and standards. Vendor shall promptly furnish, upon Buyer’s request, all certifications required under any such laws, codes, ordinances, regulations, guidelines, orders, and standards. In providing Ordered Items, Vendor shall comply with all applicable federal and provincial laws, regulations, guidance, ethical industry standards and Buyer’s policies as provided or made available to Vendor, including without limitation Buyer’s Suppliers Code of Conduct, which is located at www.fresenius-kabi.com/us/company/supplier-relations and is hereby incorporated by reference.
  11. Termination. The term of this Agreement begins upon Vendor’s acceptance (or deemed acceptance as set forth in Section 1) and continues until Buyer’s acceptance of the Ordered Items, subject to the terms that survive termination of this Agreement. Buyer may terminate the Agreement in whole or in part upon fifteen (15) days’ written notice to Vendor. If Vendor defaults in the performance of its obligations under the Agreement and is unable to cure the default within ten (10) days following notice of the default, Buyer may terminate the Agreement upon written notice. Upon the termination of the Agreement in whole or in part by Buyer for any reason, Vendor shall immediately:
    1. stop all work under the terminated Agreement;
    2. cause any of its suppliers or subcontractors to cease work; and
    3. preserve and protect work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers' or subcontractors' plants pending Buyer's instructions.
    Buyer shall not owe Vendor any lost profit or payment for any materials or Products that Vendor may consume or sell to others in its ordinary course of business.
  12. Indemnity. Vendor shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, legal fees, and other expenses, relating to or arising out of:
    1. Vendor’s breach of the Agreement;
    2. death or injuries to persons or property due to Vendor’s breach of the Agreement;
    3. the failure of the Products or Vendor’s performance of the Services to comply with the requirements of the Agreement, including the timely delivery of the Products or Services; or
    4. infringement of a third party’s intellectual property rights by any Products (including packaging, labeling and documentation) or Services.
  13. Insurance. Vendor shall at all times maintain commercial general liability insurance, including products and completed operations liability, with limits and in the form as requested by Buyer (and in any event not less than CAD$2,000,000 combined single limit). This limit may be met with an excess liability policy. Additionally, Vendor shall maintain workers' compensation insurance as required by law. At Buyer's request, Vendor shall have Buyer added as an additional insured on the commercial general liability insurance policy and shall furnish Buyer with a certificate of insurance.
  14. Limitation of Liability. BUYER WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. In no event shall Buyer's aggregate liability for any loss or damage arising out of or in connection with or resulting from the Agreement exceed the price allocable to the Products or Services or unit thereof which gives rise to the claim. Buyer shall not be liable for interest charges or penalties of any description.
  15. Audit. Upon reasonable notice, Vendor shall provide and shall cause Vendor’s contractors, subcontractors and agents (collectively “Personnel”) to provide to Buyer or its representatives, including its external auditors, access to any facility of Vendor (and Vendor’s Personnel) and to data and records relating to the Ordered Items for the purposes of:
    1. verifying the integrity and security of Buyer data;
    2. observing Vendor’s performance of its obligations under the Agreement; and
    3. enabling Buyer to comply with all applicable laws.
    If any such audit reveals that Vendor has overcharged Buyer, Vendor shall promptly reimburse Buyer for such overcharge, and in the event that any such overcharge exceeds five percent (5%) of the amount that should have been charged, Vendor shall promptly reimburse Buyer for all reasonable costs and expenses incurred in the conduct of the audit.
  16. Governing Law. The Agreement and all rights and duties under the Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflicts of laws principles. Any and all disputes arising under the Agreement, whether as to interpretation, performance or otherwise, shall be subject to the exclusive jurisdiction of the courts of the Province of Ontario, and each of the parties hereto hereby irrevocably attorns to the jurisdiction of the courts of such province. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Buyer's rights under the Agreement are in addition to any other legal or equitable remedies it may have against Vendor.
  17. Notice. All notices to Buyer shall be sent via registered mail or nationally recognized courier service to: Fresenius Kabi Canada Ltd., Attn: Legal, 165 Galaxy Blvd, Suite 100, Toronto, Ontario, M9W 0C8.
  18. Publicity. Unless otherwise required by law, Vendor shall not issue any press release or other publicity materials, or make any presentation with respect to the existence of this Purchase Order or the terms and conditions hereof without Buyer’s prior written consent. Vendor shall not publicize or use any name, trade name, service marks, trademarks, trade dress or logos of Buyer nor identify Buyer as a customer without Buyer’s prior written consent.
  19. Force Majeure. Neither party shall be liable for any failure to perform or any delays in performance if such failure or delay is due to any causes that are beyond its reasonable control, including, without limitation, such causes as acts of God, natural disasters, flood, severe storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of government, war (whether or not declared), acts of terrorism, or other similar causes (“Force Majeure Event”). Raw material price increases and unavailability of raw materials shall not be deemed a Force Majeure Event. In the event of a Force Majeure Event, the party prevented from or delayed in performing shall promptly give notice to the other party and the unaffected party may elect to:
    1. suspend performance;
    2. extend the time for performance; or
    3. cancel all or any part of the unperformed part of this Purchase Order.
  20. General. The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege. The Agreement may be amended or modified only by a written instrument separately signed by Buyer and Vendor. Vendor shall not subcontract or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's prior written consent. The failure of Buyer to insist in any instance upon strict performance by Vendor of any provision of this Purchase Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Purchase Order or any corresponding Agreement. Vendor agrees to pay all costs and expenses paid or incurred by Buyer in enforcing its rights under this Purchase Order, including, without limitation reasonable legal fees and costs. The provisions of Sections 1, 4 – 20, and those provisions that by their nature are intended to survive, shall so survive termination or expiry of the Agreement.