Purchase Order Terms & Conditions
TERMS OF PURCHASE; CONFLICTING TERMS. This complete, final and exclusive offer from Vapotherm, Inc. (“Vapotherm”) to the party identified as supplier on the face of this purchase order (“Supplier”) regarding the goods or services ordered hereunder (“Goods” and/or “Services”) is made solely on the terms and conditions stated in this purchase order and any documents referenced herein (“Purchase Order”). Any of the following acts by Supplier shall constitute acceptance by Supplier of the offer and the terms and conditions as set forth herein regardless of any purported substitution or addition of terms and conditions by Supplier: (i) Signing and returning an acknowledgement copy of this Purchase Order, (ii) electronic confirmation of this Purchase Order to Vapotherm, (iii) furnishing any of the Goods or Services in this Purchase Order to Vapotherm, (iv) acceptance of any payments under this Purchase Order, or (v) commencement of performance under this Purchase Order. All conflicting, different or additional Supplier terms are expressly rejected and acceptance of this offer is expressly limited to the terms stated in this Purchase Order. No course of dealing or usage of trade or actual course of performance shall be relevant to explain or supplement any terms used herein. Acceptance by Vapotherm of any shipment from Supplier shall not constitute acceptance of any such different or additional terms and conditions.
ENTIRE AGREEMENT. Upon acceptance by Supplier, this Purchase Order shall be the exclusive and complete agreement between the parties hereto, and this order shall supersede any prior understanding, agreement, representations and warranties with respect thereto. Notwithstanding the foregoing, if a separate and complete agreement between Vapotherm and Supplier regarding the Goods and/or Services exists prior to Supplier’s acceptance of this Purchase Order or is entered into after Supplier’s acceptance of this Purchase Order (in either case, a “Master Agreement”), then in the event of any conflict between the terms and conditions of the Master Agreement and this Purchase Order, the Master Agreement shall control.
QUANTITIES. The specific quantity ordered must be delivered in full and not be changed without Vapotherm’s prior written consent. Any different quantity without such consent is a material breach and shall be subject to Vapotherm’s rejection and return at Supplier’s expense.
PRICE. The price for each Good and/or Service shall be the price as shown for such Good and/or Service indicated on the face of this Purchase Order. Any change in price without Vapotherm’s prior written consent is a material breach and is expressly rejected by Vapotherm. No additional charges of any kind, including charges for boxing, packing, cartage or other extras will be allowed except with Vapotherm’s prior written consent. Supplier warrants that the price for the Goods and/or Services is not less favorable than the price currently extended to any other customer of Supplier for the same or similar articles in similar quantities. Vapotherm shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by Supplier, whether or not shown on its own terms of sale or provided for in this Purchase Order.
PAYMENT. Unless otherwise agreed, payment shall be due net forty-five (45) days from the date of delivery plus five (5) days, or net forty-five (45) days from the date of receipt of correct invoice, whichever date is later. Unless otherwise agreed, Vapotherm shall be entitled to a two percent (2%) discount off payments remitted within fifteen (15) calendar days from the date of delivery of the Goods or performance of Services, or from the date of receipt of correct invoice, which ever date is later.
TAXES. Except for state sales and use taxes, the price for the Goods and/or Services includes all taxes, fees, and charges that may be imposed with respect to the purchase of the Goods and/or Services.
DELIVERY. Time is of the essence in the performance of this Purchase Order, and any delay in delivery or performance is a material breach of the entire Purchase Order. Supplier shall notify Vapotherm immediately of any cause, which may delay such delivery or performance. If any delivery or performance is delayed, or reasonably appears likely to be delayed, Vapotherm reserves the right, without liability, to refuse any Goods or Services, to cancel all or any party of this Purchase Order, and to purchase elsewhere and hold Supplier accountable therefore. Title transfers to Vapotherm upon delivery of the Goods to Vapotherm. Unless otherwise agreed, shipment of the Goods shall be freight collect via Vapotherm designated mode and carrier. If Supplier fails to comply, shipment is FOB destination with Supplier bearing risk of loss & cost of delivery.
INVOICING. All packages, packing slips and invoices must be plainly marked with the Purchase Order number shown on the face of this Purchase Order and such other information as Vapotherm may request from time to time. Supplier shall state separately on its invoice the amount of state sales and/or use tax applicable to the sale of Goods and/or Services.
INDEPENDENT PARTIES. The relationship between Vapotherm and Supplier is strictly one of a customer and an independent contractor and not one of joint-venture, partnership, or agency. Supplier agrees that all work done under this Purchase Order shall be done as an independent contractor. Agents, employees, or other persons selected or directed by Supplier to perform this Purchase Order shall not be agents or employees of Vapotherm, whether or not a separate charge is made for their services.
INDEMNIFICATION. upplier agrees to indemnify, defend and hold harmless Vapotherm from and against any claims, liabilities, damages and expenses (including but not limited
to attorneys’ fees for defending Vapotherm, its agents and customers) arising out of or resulting from the Goods, Services or any acts or omissions of Supplier, its employees, agents or contractors, and against liability for taxes in connection with the Services performed by Supplier, its employees, agents or contractors. This indemnification shall be in addition to the warranty obligations of the Supplier.
INSURANCE. Any insurance purchased by Supplier to cover loss or damage to the Goods in transit to Vapotherm shall be solely at Supplier’s expense. Supplier shall maintain an adequate and reasonable amount of liability and other insurance covering the risks and any claims associated with the Goods, Services, and Supplier’s performance under this Purchase Order, including without limitation Workers’ Compensation insurance, and upon request name Vapotherm as an additional insured and provide evidence of coverage to Vapotherm.
CHANGES. Vapotherm is entitled, at any time, to change the Specifications for the Goods and/or Services or any other matters relating to performance of this Purchase Order, provided that the price and/or delivery schedule may be equitably adjusted with Vapotherm’s prior written consent to reflect additional costs and/or schedule adjustments required by the changes. For the purposes of this Purchase Order, the term “Specification” shall include any plans, drawings, data, or other information relating to the Goods or Services. Any claim for adjustment is waived unless made in writing within thirty (30) days after receipt of Vapotherm’s written change order. Supplier shall not make any change or deviation to Goods and/or Services covered specifically by this Purchase Order, except with Vapotherm’s prior written consent. Upon approval by Vapotherm of the initial design, any process changes, design changes or deviations considered by the Supplier must be submitted to Vapotherm in writing for review and any failure to do so is a material breach. If changes are submitted for approval, the information submitted must include a complete description of the change and the effect the change will have on all characteristics of the product. Upon request, Supplier shall submit samples of the proposed product for evaluation and approval by Vapotherm.
SUSPENSION OF WORK. Vapotherm may, at any time, direct Supplier to suspend all or any part of the work for not more than 180 days. In the event of a suspension, Vapotherm may, in its discretion, reimburse Supplier for reasonable and actual additional costs incurred solely and directly as a result of the suspension, provided that a detailed claim with supporting documentation of such costs is submitted to Vapotherm within thirty (30) days after the end of the suspension. Supplier agrees to provide Vapotherm a good faith estimate of suspension costs upon request.
WARRANTY SPECIFICATIONS. Supplier warrants that the Goods and/or Services will be in exact accordance with the Specifications, drawings and other instructions attached to this Purchase Order or to which Vapotherm and Supplier subsequently agree in writing. In the case where the Specifications, drawings and other instructions are not attached to the Purchase Order, it is the Supplier’s responsibility to acquire the required documents, with current revisions, from the Vapotherm representative that issued the Purchase Order. Further, Supplier warrants that the Goods and/or Services will be free from defects in materials, workmanship, title, and design (except to the extent such defective design is attributable to Vapotherm); will be adequately contained, packaged, marked and labeled; that all such Goods and Services will conform to any statement made on the containers, labels, advertisements and published specifications for them; that all such Goods and Services will be merchantable, and will be fit and safe for the purpose which Goods or Services of that kind are normally used, as well as for Vapotherm’s particular purpose if Supplier knows or has reason to know that purpose; and that all Services shall be performed diligently by qualified personnel to Vapotherm’s satisfaction. The express warranties herein are in addition to any other warranties given by Supplier to Vapotherm, as well as all warranties implied or given by law, and shall not be limited by any disclaimers, exclusions, or limitations. This warranty shall not be deemed waived by any inspection performed by Vapotherm’s as set forth herein or Vapotherm’s acceptance of or payment for the Goods and/or Services.
INSPECTION. Vapotherm is entitled to inspect the Goods and/or Services (including the performance of tests) before or after receipt and reject them for failure to conform to this Purchase Order, including without limitation the warranties set forth herein, regardless of whether any payment has been made by Vapotherm, whether the nonconformity substantially impairs the value of the Goods and/or Services, or whether the nonconformity may be cured by Supplier. Vapotherm has the right upon reasonable notice to enter Supplier’s facilities to inspect the production of Goods and/or performance of Services, without precluding subsequent inspection and rejection of Goods and/or Services. If the inspection discloses, in Vapotherm’s good faith opinion, that Supplier’s ability to meet the requirements of this Purchase Order is questionable, Vapotherm may treat such circumstance as a material breach and terminate this Purchase Order without liability to Supplier. If Goods tendered by Supplier are nonconforming to this Purchase Order, including without limitation the warranties set forth herein, Vapotherm may return all of the Goods to Supplier, at Supplier’s entire risk and expense, for first priority repair, replacement or a refund at the election of Vapotherm. Nothing contained in this Purchase Order shall relieve Supplier from the obligation of testing, inspection and quality control.
COMPLIANCE WITH LAWS. Supplier represents and warrants that the Goods and/or Services were not manufactured or performed, and are not being sold or priced, in violation of any federal, state, or local law, executive order, or administrative ruling. Without limiting the foregoing, Supplier represents and warrants that it complies with the following provisions of federal law which are incorporated by reference into this Purchase Order: (1) the Federal Food, Drug and Cosmetic Act, as amended, and all applicable regulations and Executive Orders issued thereunder; (2) the Civil Rights Act of 1964, as amended, and all applicable regulations and Executive Orders issued thereunder; (3) the Fair Labor Standards Act, as amended, and all applicable regulations and Executive Orders issued thereunder; (4) FAR 48 C.F.R. 52.222-26 and 41 C.F.R. 60-1.4, relating to Equal Opportunity; (5) FAR 52.222-35 and 41 C.F.R. 60-250.5, relating to Affirmative Action for Disabled Veterans and Vietnam Veterans; (6) FAR 52.222-36 and 41 C.F.R. 60- 741.5, relating to Workers with Disabilities; (7) FAR 52.222-41, relating to the Service Contract Act, as amended; and (8) all regulations relating to Small Business Subcontracting, including FAR 52.219-8. Supplier agrees to indemnify, defend, and hold harmless Vapotherm from and against any and all claims, costs, damages, judgments, losses and expenses (including attorneys’ fees) incurred or resulting directly or indirectly by or to Vapotherm as a direct or indirect result of the breach of any representation or warranty made by Supplier herein. Further, if Vapotherm is a holder of U.S. Government contracts, it may also be subject to certain additional statutory, regulatory, and contract requirements by virtue thereof. If this Purchase Order is issued under a U.S. Government prime contract or a subcontract under a U.S. Government prime contract, Supplier agrees to comply with all statutory, regulatory, and contract requirements applicable to the prime contract or subcontract, copies of which may be furnished to Supplier upon Supplier’s request.
INTELLECTUAL PROPERTY. Supplier warrants that the Goods (including but not limited to software) do not infringe upon any third party’s intellectual property, including patents, copyrights, trademarks or trade secrets, and that Supplier has all necessary rights to sell or license the Goods. Supplier agrees to indemnify, defend and hold harmless Vapotherm, its successors, assigns, customers, and users of its products from and against all claims, costs, damages, judgments, losses and expenses (including attorney’s fees) arising from the infringement or alleged infringement of any intellectual property, patent, copyright, trademark, license or other proprietary right of any third party in connection with such Goods or Services, unless infringement occurs solely due to Supplier’s incorporation of Vapotherm’s Specifications into the Good(s) or Service(s),
OWNERSHIP AND USE. All ideas, inventions, copyrightable subject matter (including computer or other electronic data files, drawings, and other materials), and other items prepared by Supplier or arising specifically in connection with this Purchase Order (including tooling), and all items furnished by Vapotherm, shall be the property of Vapotherm and no reproductions or property interest shall be retained by Supplier. To the extent allowed by law, copyrightable subject matter created by Supplier shall be deemed “work made for hire.” In all cases, Supplier agrees to assign and hereby assigns its rights in all such ideas, inventions, copyrightable subject matter and items to Vapotherm. Such items shall only be used for the benefit of Vapotherm and shall not be disclosed to any other party. Such property while in Supplier’s custody shall be at Supplier’s risk and shall be returned to Vapotherm in the same condition as received, ordinary wear and tear accepted.
VAPOTHERM-FURNISHED PROPERTY. Supplier shall be liable for any loss or destruction of, or damage to, property furnished to it by Vapotherm for use under this Purchase Order, and Supplier shall be responsible for return of any such property in as good condition as when received except for reasonable wear and tear and for its use in accordance with the provisions of this Purchase Order.
CONFIDENTIALITY. Supplier may not disclose to any third party (other than a government or judiciary body, as required by law), or use to the detriment of Vapotherm, the existence or details of this Purchase Order, any Specification, any agreement or arrangement with Vapotherm, or any information Supplier receives or learns about Vapotherm in connection with or as a result this Purchase Order, except as is necessary to perform this Purchase Order and only with prior notice to Vapotherm of any such disclosure.
ELECTRONIC DATA INTERCHANGE. If used in this Purchase Order, the term “Electronic Data Interchange” or “EDI” shall be broadly construed to include and encompass internet-based and traditional EDI systems. If utilized, Supplier and Vapotherm agree that communication utilizing EDI pursuant to applicable law shall be permitted under this Purchase Order and shall be legally effective and enforceable, provided that Supplier and Vapotherm shall each adopt an electronic identification consisting of symbol(s) or code(s) that will be included in each EDI communication. Transmission of an EDI communication including such symbol(s) or code(s) will verify the identity of the party originating the communication. EDI communications will be deemed received when accessible and legible to the receiving party. Supplier shall institute and adhere to security procedures to ensure that all EDI communications are authorized and that all business records and data are protected against loss, alteration, destruction, or access by unauthorized parties.
SOFTWARE LICENSES. If software is licensed under this Purchase Order, except as agreed to the contrary by Vapotherm in writing, the license is worldwide, perpetual, royalty-free and granted in favor of Vapotherm and its affiliates, which may make a reasonable number of copies of the software. A Vapotherm affiliate is an entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, Vapotherm. Supplier represents and warrants that there is no unauthorized code in any of the hardware or software supplied, that any support/maintenance by Supplier will not introduce unauthorized code into the hardware or software, and that the software is not subject to undisclosed licensing restrictions or contain open source code. Unauthorized code means any virus, trojan horse, or other software routines designed to permit unauthorized or undocumented access, to disable, erase or otherwise cause harm to software, hardware or data.
TERMINATION. Vapotherm may terminate all or any part of this Purchase Order without cause by providing Supplier at least ten (10) calendar days’ notice in advance of the effective termination date. In the event of termination by Vapotherm without cause, Vapotherm’s liability shall be limited to the price of, and Supplier shall deliver to Vapotherm, Goods and/or Services scheduled for delivery and/or performance during the period ending on the effective termination date. Vapotherm shall not be liable to Supplier for any damages, costs or charges in respect of such termination without cause. Supplier hereby waives any right that it may have to specific performance under this Purchase Order. Vapotherm may immediately terminate upon notice all or any part of this Purchase Order without obligation to Supplier upon the occurrence of any of the following causes: (a) a material breach of any term of this Purchase Order by Supplier, including, but not limited to, untimely shipment of Goods, or shipments of Goods which do not conform to this Purchase Order, (b) the filing by or against Supplier of any insolvency of bankruptcy proceedings or proceedings for reorganization, receivership or dissolution; or (c) any material adverse change in the condition of Supplier, which Vapotherm in good faith believes to impair the likelihood that Vapotherm will receive timely and full performance of this Purchase Order. All of Supplier’s confidentiality and indemnification obligations survive termination.
REMEDIES/LIMITATION OF VAPOTHERM’S LIABILITY. Vapotherm’s remedies shall be cumulative and the remedies herein specified do not exclude any remedies allowed by law. IN NO EVENT SHALL VAPOTHERM BE LIABLE FOR ANTICIPATED PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
FORCE MAJEURE. Where the need for Vapotherm’s delay in performance is occasioned by causes beyond Vapotherm’s control, Vapotherm in its sole discretion may delay its acceptance, or Supplier’s performance or delivery, of Goods or Services hereunder without liability. At Vapotherm’s option, the period specified for delivery or performance hereunder shall be extended by the period of delay so occasioned, and deliveries or services omitted shall be made or performed during such extension, or the total ordered hereunder shall be reduced by the deliveries so omitted. Causes beyond Vapotherm’s control shall include, without limitation, government actions or failure of the government to act where such action is required, strike or other labor trouble, flood, fire and unusually severe weather.
ADVERTISING. Without Vapotherm’s prior written consent, Supplier shall not advertise in any manner or publish the fact that it has furnished or contracted to furnish Vapotherm any Goods or Services ordered hereunder, nor disclose any of the details connected with this Purchase Order to any third party.
LIMITATIONS. Any actions or claims by Supplier under this Purchase Order for breach, nonperformance or otherwise shall be commenced within twelve (12) months after the occurrence giving rise to the action or claim.
WAIVER. Vapotherm’s rights hereunder may not be waived except by written instrument signed by an authorized agent. Vapotherm’s waiver of a breach of this Purchase Order in one instance shall not be deemed a waiver for any other breach.
ASSIGNMENT. This Purchase Order inures to the benefit of and is binding upon the successors and assignees of the Parties. Neither Party may assign any of its rights or obligations under this Purchase Order without the prior written consent of the other except that: (1) Vapotherm may assign this Purchase Order or transfer its rights and obligations under this Purchase Order to an Affiliate of Vapotherm or a successor to all or substantially all of its assets or business relating to this Purchase Order, whether by sale, merger, operation of law, or otherwise.
MODIFICATIONS. This Purchase Order may be modified or revised only in writing, executed by Vapotherm and Supplier. Vapotherm must be notified in writing in advance of any price, product, process, or specification change.
APPLICABLE LAW/JURISDICTION. The terms and conditions of this Purchase Order and the resolution of any disputes arising out of it shall be governed by and interpreted in accordance with the laws (without giving effect to conflicts of law principles) of the State of New Hampshire. The parties agree to submit to the jurisdiction of the courts of New Hampshire for all matters relating to this Agreement.
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