Purchase Order Terms & Conditions

The Purchase Order Terms & Conditions provided below govern all purchase orders issued by Surgalign Spine Technologies, Inc., including its subsidiaries and affiliates.

 

1. 1. Applicability. This purchase order is an offer by Surgalign Spine Technologies, Inc., Inc., including its subsidiaries and affiliates (“Surgalign”), to purchase the goods (the “Goods”) or services (“Services”) specified on the order from the party to whom the order is addressed (the “Seller”).
   2. Acceptance of Order. This order is not binding on Surgalign until Seller accepts the order in writing, or starts to perform in accordance with the order. Surgalign may withdraw the order at any time before it is accepted by Seller.
   3. Packaging of Goods. All Goods shall be packed for shipment according to Surgalign’s instructions, or if Surgalign does not provide instructions, in a manner sufficient to ensure the Goods are delivered in an undamaged condition.
   4. Title and Risk of Loss. Title passes to Surgalign upon delivery of the Goods to the address specified in this order. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the address specified in the order.
   5. Delivery of Goods. Seller shall deliver the Goods in the quantities and on the date(s) specified in this order, or as otherwise agreed to in writing between the parties. The order number shall appear on all shipping documents, labels, invoices, correspondence and any other documents pertaining to the order. Timely delivery of the Goods is of the essence. All Goods shall be delivered to the address specified in this order during Surgalign’s normal business hours, or as otherwise instructed by Surgalign.
   6. Quantity of Goods. If Seller delivers more or less than the quantity of Goods ordered, Surgalign may reject all of the Goods or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Surgalign does not reject the Goods and instead accepts delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
   7. Change Control – Per Surgalign Supplier Approval & Monitoring procedure, all approved suppliers shall notify Surgalign of intended changes to the product or service they provide prior to implementation. Surgalign shall evaluate the possible risk resulting from the intended change to product/service safety and efficacy with relation to Surgalign products. Only Surgalign approved changes shall be implemented. Review and written approval shall not be unreasonably withheld, conditioned or delayed. Supplier’s sub-contractors are included in this requirement. Supplier Change request are submitted through Supplier Quality Assurance
   8. Inspection of Goods and Services.  If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, then Surgalign, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. Surgalign may reject all of the Goods, or any portion of the Goods, if it determines the Goods are in any way nonconforming or defective. If Surgalign rejects any portion of the Goods, Surgalign has the right to: (a) rescind the order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Surgalign requires replacement of the rejected Goods, Seller shall, at its expense, promptly replace the rejected Goods and pay for all related expenses, including but not limited to, transportation charges for the return of the rejected Goods and delivery of the replacement Goods. Notwithstanding the foregoing, Supplier shall be solely responsible for the repair or replacement cost relating to hidden or latent defects or nonconformities that are not generally discoverable on reasonable inspection and ordinary vigilance.
   9. Price of Goods and Services. The price of the Goods and Services is the price stated in this order (the “Price”). Unless otherwise agreed to in writing between the parties, the Price includes all packaging costs and insurance.
   10. Payment. Seller shall promptly issue an invoice to Surgalign after delivery of the Goods, and Surgalign shall pay to Seller all properly-invoiced amounts. All payments hereunder must be in U.S. dollars. In the event of a payment dispute, the parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the order notwithstanding any such dispute.
   11. Warranties. Seller warrants to Surgalign that for a period of one (1) year from the date of delivery to Surgalign, all Goods shall: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Surgalign; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. Seller warrants to Surgalign that any Services rendered by Seller to Surgalign shall be performed in a professional and workmanlike manner.  These warranties survive any delivery, inspection, acceptance or payment for the Goods by Surgalign. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Surgalign’s discovery of the noncompliance of the Goods with any of the foregoing warranties.
   12. Indemnification. Seller shall defend, indemnify and hold harmless Surgalign, including its subsidiaries, affiliates, successors and assigns, and its respective directors, officers, shareholders and employees (collectively, the “Indemnitee”) against any and all loss, damage, liability, claim, action, judgment, fine, cost or expense, including reasonable attorney’s fees, arising out of, or occurring in connection with: (a) the Goods purchased from Seller; or (b) Seller’s negligence, willful misconduct, or breach of these terms. Seller shall not enter into any settlement or admit fault without the Indemnitee’s prior written consent.
   13. Insurance. Seller shall, at its own expense, maintain and carry insurance in amounts necessary to cover its obligations under this order, with financially sound and reputable insurers. Such insurance shall include commercial general liability and products liability insurance. Upon Surgalign’s request, Seller shall provide Surgalign with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified. Seller shall provide Surgalign with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy.
   14. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all licenses, authorizations, and permits that it needs to carry out its obligations under this order.
   15. Termination. Surgalign may immediately terminate this order, in whole or in part, upon written notice to the Seller: (a) if the Goods have not been delivered by the date specified in the order; (b) if Seller has not complied with any of these terms; or (c) if Seller becomes insolvent, files a petition for bankruptcy or has commenced against it proceedings relating to bankruptcy.
   16. Waiver. No waiver by any party of any of the terms of this order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights arising from the order shall operate, or be construed as, a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other exercise thereof.
   17. Confidential Information. All non-public and proprietary information of Surgalign, including but not limited to, specifications, designs, plans, customer lists, and pricing, disclosed by Surgalign to Seller in connection with this order, whether disclosed orally or in written, electronic or other form, and whether or not designated as “confidential”, is confidential information of Surgalign. Seller shall not disclose the confidential information of Surgalign to any third party, and Seller shall not use the confidential information of Surgalign except in performance of Seller’s obligations under this order. Confidential information of Surgalign does not include information that is: (a) already in the public domain at the time of disclosure by Surgalign; (b) already known to Seller at the time of disclosure by Surgalign; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.   Seller shall protect Surgalign’s confidential information with at least the same degree of care that it uses to protect its own information, but in no event less than a reasonable degree of care.  The non-use and non-disclosures provisions set forth in this paragraph shall remain in effect as long as such information remains in Seller’s possession.
   18. Force Majeure. Neither party shall be liable to the other party for any delay or failure in performing its obligations under this order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party. Such events include, but are not limited to, acts of God, natural disasters, floods, fire, earthquakes, hostilities, strikes, embargoes, governmental orders or regulations, pandemic, epidemic, industry-wide material or labor shortages, and regional utility disruptions.. Seller’s economic hardship or changes in market conditions are not considered such events. Seller shall notify Surgalign immediately upon the occurrence of any such event, provide an estimate of the anticipated duration of any such event, use best efforts to end the delay or failure of its performance, ensure that the effects of any such event are minimized and resume performance under the order as soon as possible.
   19. Assignment. Seller shall not assign any of its rights or obligations under this order without the prior written consent of Surgalign.
   20. Amendment and Modification. No change to this order is binding upon Surgalign unless it is agreed to in writing by Surgalign.
   21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
   22. No Third-Party Beneficiaries. This order is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein is intended to, or shall confer upon, any other person or entity, any right, benefit or remedy of any nature whatsoever.
   23. Governing Law / Venue. All matters arising out of this order shall be governed by the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any action or proceeding arising out of the order shall be instituted in the state or federal courts located in the State of Delaware.
   24. Notices. All notices hereunder shall be in writing and addressed to the parties at the addresses set forth on this order. All notices shall be delivered by personal delivery, nationally-recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this order, notices are effective only: (a) upon receipt of the receiving party; and (b) if the party giving the notice has complied with the requirements of this section.
   25. Severability. If any provision of this order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the order.
   26.  Survival. Provisions of this order which by their nature should apply beyond the completion of the order will remain in force after any termination or completion of the order including, but not limited to, the following provisions: Warranties, Indemnification, and Confidential Information.
   27. Subject to Change.  Seller understands and agrees that these terms and conditions are subject to change by Surgalign without advance notice to Seller. Last Updated: January 14, 2022