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Unless otherwise stated in the purchase order, shipping is DDP (Incoterms® 2020) to the point of delivery stated in NAR MD’s purchase order.
Supplier warrants the products will be merchantable; all information provided with products is complete and accurate; and, Supplier has legal title to the products. Supplier will make available to NAR MD and its customers all manufacturers’ warranties (express or implied) relating to the components comprising the product. Supplier will honor any third-party warranties not directly assignable or transferable to NAR MD or NAR MD’s customer. The term of the warranty shall not exceed the shorter of (a) the expiry of the product (or component) or (b) the term of such manufacturer warranties. Supplier will repair or replace product that does not conform to this warranty at no cost to NAR MD or NAR MD’s customer.
Supplier represents it owns or holds valid licenses of all Intellectual Property and Marks necessary to sell the products and, if applicable, manufacture the products. Supplier grants NAR MD a non-exclusive, worldwide, royalty free license to use Supplier’s Marks on or in association with the marketing and distribution of the product (including any associated packaging, promotional, and advertising material). Supplier’s license will include any subsequently acquired Marks applicable to the products. Supplier warrants it has not knowingly infringed or violated any third-party Intellectual Property or Mark rights relating to the product. Intellectual Property means any patents, know-how, designs, data, specifications, or similar information currently existing or subsequently developed by the proprietary party. Mark means copyright, trademark, trade dress, or similarly protected designations.
Supplier will accept returns of saleable inventory and non-saleable customer returns for a full refund without penalty.
In the event of a recall, all recalled product in NAR MD’s inventory will be returned to Supplier, at Supplier’s expense, for a full credit with no penalties. Supplier will repair, replace, or refund NAR MD’s customers for recalled products, covering the cost of any shipping or destruction, as applicable. At NAR MD’s reasonable discretion, Supplier will administer the recall, including contacting NAR MD’s customers. In such an instance, NAR MD will provide Supplier a list of all customers who purchased the recalled product, specific to the recalled lots (if applicable), and customer contact information NAR MD has on file. Supplier will reimburse NAR MD for the administrative costs, including personnel costs, of a recall.
Supplier will promptly notify NAR MD of any of the following related to the product: Recalls; discovered design, manufacturing, or warranty defects; pending or threatened litigation; pending or threatened government action, including investigations; and material or recurring customer complaints.
Supplier agrees to defend, indemnify, and hold harmless NAR MD from and against any Losses, by reason of or arising out of any suit or claim against NAR MD relating to (i) any breach of Supplier’s obligations under these terms, (ii) the negligence, gross negligence, or willful misconduct of Supplier, and (iii) Supplier’s violation of any applicable law or governmental regulations. Losses means any liability, loss, expense, cost, claim, or judgment, including reasonable attorneys’ fees.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAR MD WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES.
Prior to the shipment of products to NAR MD for sale to any market, and during the Term, Supplier will have all applicable governmental registrations, licenses, approvals, and requirements necessary for the manufacture, assembly, sale, and distribution of the products to the applicable markets, including, as applicable, Unique Device Identifiers, CE registration, and U.S. Food and Drug Administration approval/compliance. Supplier represents it is not on any restricted party list, including the Denied Persons List and Specially Designated Nationals List.
Country of Origin Requirements
Supplier warrants the country of origin of product is accurate and properly marked on the product. Upon request, Supplier will provide NAR MD (i) certification a product is compliant with the Buy American statute, 41 USC § 8301, et. seq.; Trade Agreements Act, 19 USC § 2501, et. seq.; Berry Amendment, 10 U.S.C. §2533a; or, Kissell Amendment, 6 U.S.C. §453b, as implemented by the Federal Acquisition Regulation and Department/Agency Supplemental Regulations (e.g., DFAR) (collectively, Country of Origin Requirements (COR)), to the extent applicable to the product, (ii) for a product not compliant with COR, a statement the product is not compliant, or (iii) sufficient information for NAR MD to determine compliance with COR.
Supplier agrees to maintain at its own expense commercial general liability insurance, including products liability coverage. The applicable limits shall be no less than $3,000,000 per occurrence for Rx products and medical devices or 1,000,000 per occurrence for all other products. All insurance shall be placed with insurers rated at least A- by A.M. Best. All liability policies shall be written (i) on claim’s made basis, with such policy maintained through the expiry of the product, or for products with no expiry, for 5 years after purchase, or (ii) on an occurrence basis. Such insurance coverages shall not act to limit Supplier’s liability under this agreement.
NAR MD’s purchase orders and payment to Supplier are expressly conditional on Supplier’s assent to these terms. Statements, clauses, or conditions modifying, adding to, or inconsistent with these terms contained in any order submitted by Supplier are void, and do not become part of the agreement between NAR MD and Supplier without NAR MD’s express written acceptance of those statements, clauses, or conditions. NAR MD’s acceptance of product shall not be construed as assent to any of the terms proposed by Supplier and will not constitute a waiver by NAR MD of any of NAR MD’s terms.
This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings relative to such subject matter. No provision or term herein may be modified, supplemented, waived, discharged, terminated, or otherwise altered except in writing signed by the parties.
Any failure or delay by NAR MD in exercising any right or remedy provided by or relating to this agreement does not constitute a waiver and shall not prohibit NAR MD from exercising such right or remedy at a later time or from exercising any other right or remedy available.
The provisions of these terms are separate and independent covenants. Accordingly, the invalidity or unenforceability of one or more of these provisions or covenants will not affect the validity or enforceability of the remaining provisions.
NAR MD shall not be liable for any loss arising out of any delay or failure in the performance of its obligations hereunder that result from events beyond its reasonable control, including (a) acts of God; (b) acts or regulations of any governmental or national authority; (c) war, terrorism, or other civil unrest; (d) accident, fire, flood, or other natural event; (e) strikes, industrial disputes; or other labor matters; or (f) shortages in labor or supplies.
Notices and other communications given under this agreement will be in writing and effective if delivered via (a) hand-delivery; (b) certified United States mail; (c) overnight courier; (d) electronically to [email protected]; or (e) any other method in which proof of receipt can be independently verified.
Supplier agrees disputes regarding the provisions and performance of this agreement shall be resolved according to the Conflict Resolution Appendix (Employment/Services 2018) which is incorporated into this agreement by reference. This agreement will be governed by, construed under, and interpreted according to the laws of the State of South Carolina without regard to conflict-of-laws principles. The Parties agree the courts in Greenville, South Carolina, whether state or federal, shall have exclusive jurisdiction in any proceeding initiated between the Parties regarding this agreement.