Tandem Diabetes Care Purchase Order Terms

SHIPPING: Supplier shall package and ship Products in accordance with the instructions contained in the PO, the Specifications, or in a manner otherwise specified in writing by Tandem, but in each case, in such a manner to protect the Products against damage or deterioration during shipment or storage. If applicable, Supplier shall provide all documents required in connection with the importation of the Products to the United States. Supplier shall not charge Tandem for packaging Products unless otherwise stated on the PO. “Specifications” means the most current version of all specifications and requirements applicable to any Product or Services that Tandem may provide to Supplier, and any other descriptions provided by Supplier and approved in writing by Tandem.

NON-CONFORMING PRODUCTS: If Tandem determines that the Products or Services do not comply with the PO or these Terms, including the Specifications, Tandem may reject the non-conforming Products or Services. Upon rejection, Supplier shall, at Tandem’s option, promptly: (i) correct any non-conformance; (ii) refund the full amount paid for the rejected items, plus any delivery charges paid by Tandem; or (iii) replace such rejected items. Use of the Products or Services for the purpose inspection and testing or payment of invoices will not be deemed acceptance of such Products or Services.

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PRICING, INVOICING, PAYMENT

1. PRICE: The price for Products or Services must be equal to or less than the price on the PO. Prices are firm and cannot be changed or modified by Supplier without Tandem’s written consent. Supplier is solely responsible for all costs incurred in connection with providing the Products and Services, including, without limitation: (i) all charges for packaging, packing, hauling, storage, insurance and delivery in accordance with the PO; (ii) the cost of any miscellaneous Services of a kind that are commonly provided with the Products; and (iii) any miscellaneous items of a kind that are commonly used or supplied in the performance of, and in conjunction with, the Services.

2. INVOICES: Supplier shall promptly invoice Tandem for Products that have been delivered and Services that have been provided in accordance with the PO and these Terms. Invoices must: (i) reference the PO and the relevant agreement number (if any); (ii) include a detailed description of the Products delivered or Services performed; (iii) have an individual reference number or name of the Tandem primary point of contact or both; (iv) cover no more than one PO; and (vi) be sent to  apayable@tandemdiabetes.com or submitted as specified on the PO or both. At Tandem’s request, Supplier shall correct any non-conforming invoice.

3. CURRENCY: All amounts payable will be in United States Dollars unless otherwise specified by Tandem on the PO.

4. PAYMENT:  Payment is due 45 days from Tandem’s receipt of a conforming and undisputed invoice. If Tandem pays an invoice within 15 days of Tandem’s receipt of such invoice, Tandem may take a 2% discount on the invoice total. The discount period will be calculated from Tandem’s receipt of a conforming undisputed invoice.

5. SETOFF: Tandem may, from time to time, setoff or recoup any amount owed to Supplier by Tandem against any amounts owed by Supplier to Tandem. If required by applicable law, Tandem shall give Supplier notice (including by email) that Tandem has effected a setoff or recoupment within a reasonable time thereafter and any such notice will be effective when given.

6. TANDEM’S FAILURE TO PAY: If Tandem fails to pay an undisputed amount due to Supplier under the PO by the due date and remains in default for 60 days or more after Supplier notifies Tandem in writing that such payment is past due, then Supplier may suspend supplying the Products or performing the Services without liability until Tandem makes such payment.

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TAXES

Tandem is not liable for taxes that Supplier is legally required to pay (e.g., applicable income taxes or withholding taxes). Tandem may withhold any taxes it is required by law to withhold and pay such taxes to the appropriate taxing authority. If a reduced withholding tax rate may apply, Supplier shall provide to Tandem all documentation necessary to demonstrate that Supplier is qualified for the reduced rate or Tandem will withhold at the full rate. Upon request by Supplier, Tandem shall provide Supplier with documentation evidencing the payment of withholding tax. Tandem shall pay any sales tax, use tax, value added tax, services and products tax, consumption tax, or equivalent that Supplier is required by law to collect from Tandem. If Tandem provides Supplier an exemption certificate, Supplier shall not collect the taxes covered by such certificate. Supplier shall provide valid tax invoices to Tandem to support any charges, consistent with the requirements of the relevant jurisdiction.

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WARRANTIES

1. GENERAL WARRANTIES: Supplier represents and warrants that: (i) Supplier has the right to grant the rights and licenses herein and Supplier’s performance hereunder will not cause Supplier to breach any other agreements binding on Supplier; (ii) all Specifications and other documentation provided to Tandem are complete and accurate; and (iii) the Services, and Supplier’s performance under the PO will conform to all Specifications and will be conducted in a professional and workmanlike manner with a degree of skill, care, and diligence used by persons who are skilled, trained, and experienced with respect to the type of Services in the PO.

2. PRODUCT WARRANTY: Supplier represents and warrants that: (i) prior to delivery, Supplier has full and warrantable title to the Products, which will be delivered free and clear of liens and encumbrances; (ii) the Products will not be adulterated, misbranded, or falsely labeled or advertised; (iii) the Products and Services do not infringe any Intellectual Property Rights of a third party, and no fees or royalties will be due from Tandem with respect to the use of the Products; (iv) at delivery to Tandem, the Products are new and comprised of new materials; (v) the Products are safe and fit for any use consistent with the Specifications; (vi) for 18 months from delivery, the Products will conform to the Specifications, drawings, and approved samples, if any, and be free from defects; (vii) Tandem will have the full benefit of any manufacturer’s warranties of components that may be applicable to the Products (and Supplier shall pursue any manufacturer’s warranties on Tandem’s behalf if requested by Tandem); and (viii) with respect to any third-party technology used in the Products, Supplier has obtained all necessary rights  from the third party to permit Tandem to use such technology in accordance with the PO and these Terms without restrictions.

3. REMEDIES: For Products and Services that fail to comply with the warranties in Section X and Y, Supplier shall promptly, at Tandem’s option: (i) correct or replace the Products or Services  as soon as practicable; (ii)  modify the Products or Services to the extent such modification will correct the defect or non-conformance; (iii) re-perform the Services; or (iii) refund any amounts paid for the defective or non-conforming Products or Services within 30 days from Tandem’s request for such refund.

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CHANGE NOTICES: Supplier shall immediately notify Tandem in writing of any changes that impact or may impact the Products, including, without limitation, changes (i) in the source of the Products if obtained from a third party by Supplier, (ii) in the manufacturing process or site changes, or (iii) that may affect the Products’ quality, form, fit, or function. Supplier shall immediately notify Tandem in writing of any recall that impacts the Products.

PRODUCT TRACEABILITY AND RECALLS: Supplier shall number the Products so that they can be traced back to the manufacturing lot in the event of a recall and shall immediately notify Tandem in writing of any recall that impacts the Products.

COMPLIANCE WITH LAW: Supplier shall comply with all applicable federal, state, and local laws, orders, rule, and regulations, including, without limitation, the Federal Food, Drug, and Cosmetic Act and Safe Medical Devices Act, in performing its obligations under the PO.

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AUDIT: Supplier shall maintain all records and agreements related to the Products and Services during the term of the PO and for seven years thereafter. During the term of the PO and for seven years thereafter, Tandem or an independent certified public accountant reasonably acceptable to Supplier, may audit Supplier’s records and inspect Supplier’s facilities to verify that Supplier has complied with its obligations under the PO. Supplier shall promptly provide to Tandem or the auditor any information and documentation reasonably requested in connection with such audit or inspection in the format reasonably requested by Tandem or the auditor. Supplier shall make Supplier personnel who are knowledgeable of the relevant records and business practices available for such audit or inspection.

OPEN SOURCE SOFTWARE: The Products cannot contain any Open Source software unless Tandem has provided its prior written consent. “Open Source Software” means any software that is subject to: (i) a requirement that it is to be distributed or made available in source code; (ii) a requirement that any patents related to the software are either licensed to or may be asserted against recipients of the software; (iii) a requirement to include licensor attribution(s); or (iv) any license meeting the Open Source Definition promulgated by the Open Source Initiative, the Free Software Definition promulgated by the Free Software Foundation), or any substantially similar license, including the GNU General Public License (GPL), Lesser/Library GPL (LGPL), the Mozilla Public License (MPL), the Apache License, the BSD license, or the MIT license.

CONFIDENTIAL INFORMATION: Supplier shall not use any Tandem Confidential Information except to the extent necessary to carry out its obligations under the PO and these Terms. Supplier shall keep the Tandem Confidential Information confidential and shall not disclose the Tandem Confidential Information to any third party except in response to a valid order by a court or other governmental body, or as otherwise required by law. Supplier shall treat all Tandem Confidential Information with the same degree of care as Supplier accords its own confidential information, but in no event with less than reasonable care. Supplier shall promptly return or destroy, at Tandem’s direction, all Tandem Confidential Information in Supplier’s possession and shall promptly notify Tandem upon discovery of any unauthorized use or disclosure (or reasonably suspected unauthorized use or disclosure) of Tandem Confidential Information. “Tandem Confidential Information” means the existence and subject matter of the PO, any specifications, programs, drawings, blueprints, nomenclature, samples, models, and any other nonpublic information or material disclosed by Tandem to Supplier in connection with the PO.

Supplier agrees that if Supplier breaches its confidentiality obligations under these Terms or a confidentiality agreement between the parties (if any), money damages may be inadequate to remedy such a breach and Tandem will be entitled to seek, and a court of competent jurisdiction may grant, injunctive or other equitable relief as a remedy for such breach.

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INTELLECTUAL PROPERTY

1. “Intellectual Property Rights” means all current and future rights in copyrights, trade secrets, patents, trademarks, trade dress, mask works, design rights, moral rights, and any other intellectual property rights that may exist anywhere in the world, including, in each case, whether registered, unregistered, or comprising of an application for registration, and all rights and forms of protection on a similar nature or having equivalent or similar effect to any of the foregoing.
2. DEVELOPMENTS: Subject to Supplier Pre-Existing IP, Tandem will own all right, title, and interest in and to any Intellectual Property Rights created, discovered, or developed in the development of the Products for Tandem under the PO or the performance of the Services, or otherwise created, discovered, or developed using Tandem Confidential Information. “Supplier Pre-Existing IP” means all rights, title, and interest in and to Intellectual Property Rights that Supplier acquired, created, discovered, or developed at any time separately and independently of work performed for Tandem.
3. WORKS FOR HIRE: Where applicable, Supplier agrees that all original works of authorship prepared by or for Supplier in the performance for Tandem under the PO will be “works made for hire” under the U.S. Copyright Act of 1976 or any applicable foreign equivalent and Tandem will own such works and all copyrights therein.  For any original works of authorship prepared by or for Supplier in the performance of the PO, which under the copyright laws of the United States, may not be considered “works made for hire,” Supplier shall take all reasonable steps necessary to enable Tandem to protect its rights in such works.
4. LICENSE: Supplier, on behalf of itself and its affiliates, hereby grants to Tandem a non-exclusive, irrevocable, perpetual, paid-up, royalty-free, worldwide license to use, sell, offer to sell, import, reproduce, display, perform, distribute, modify, prepare derivative works of, and otherwise exploit the Products and Services for any purpose and to have others exercise such rights on Tandem’s behalf.
5. RESTRICTIONS: Supplier shall not use Intellectual Property Rights owned by Tandem or Tandem Confidential Information except to the extent required for the performance of Supplier’s obligations under the PO.

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INDEMNIFICATION

1. Supplier shall defend, indemnify, and hold Tandem, its affiliates and its and their respective directors, officers, employees and agents (the “Tandem Indemnified Parties”) harmless from and against all claims, actions, losses, damages, and other liabilities (including reasonable attorneys’ fees) resulting from any claim, action, allegation, or proceeding brought by a third party against any Tandem Indemnified Party to the extent arising out of: (i) Supplier’s negligent acts or omissions, gross negligence or willful misconduct; (ii) Supplier’s breach of any warranty in these Terms; (iii) personal injury, death, or property damage caused by the Products or Supplier’s provision of the Services; and (iv) the Products or Services, or any portion thereof, on their own  or in combination with other products and services, or the use of the foregoing by Tandem, infringe any Intellectual Property Rights (each of (i) – (iv) is a “Covered Claim”).

2. ASSISTANCE AND SETTLEMENTS: Tandem shall provide Supplier prompt written notice of a Covered Claim.  Tandem may participate in the defense of a Covered Claim, with its own counsel, at its own expense.  Supplier shall not enter into any settlement that affects Tandem’s rights or interest without Tandem’s prior written approval.

3. DUTY TO CORRECT: If a third party claims that the Products or Services infringe any Intellectual Property Rights, Supplier shall promptly notify Tandem of such claim and, at its own expense: (i) obtain from such third party rights to enable Supplier to perform its obligations under the PO; (ii) modify the Products or Services so they are non-infringing and in compliance with the PO and the Specifications; or (iii) replace the Products with non-infringing versions that comply with the requirements of the PO and the Specifications. If Supplier is unable to achieve (i), (ii), or (iii) above within a reasonable period of time, but in no event longer than 30 days after receipt of notice of the third-party claim, Supplier shall promptly refund to Tandem the invoiced purchase price, together with all shipping, late fee assessments, storage, and associated costs, of any affected Products.

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INSURANCE: Supplier shall, at its own cost, maintain the following minimum insurance: (i) commercial insurance of the types and minimum amounts as follows: (i) commercial general liability insurance, including products liability and contractual liability, of not less than $1,000,000 USD combined single limit per occurrence and $2,000,000 USD annual aggregate; (ii) workers' compensation or employer’s liability insurance in compliance with all applicable statutory regulations or laws; (iii) automobile insurance om compliance with all statutory requirements for all owned, non-owned, and hired motor vehicles used in the performance of Supplier’s obligations under the PO; and (iv) if Services are provided, $2,000,000 USD per claim for professional liability insurance. Supplier shall provide written notice to Tandem 30 days in advance of any termination or cancellation of insurance required hereunder. At Tandem’s request, Supplier shall provide Tandem with a certificate evidencing such insurance coverage.

WORK ON TANDEM’S PREMISES: Supplier shall comply with all applicable site rules and regulations while on Tandem’s premises.

COMPOSITION DATA: At Tandem’s request, Supplier shall promptly provide Tandem with applicable safety data sheets, composition data, chemical reports, data composition, or other similar technical or other supporting documentation indicating the chemical composition of the Product.

CONFLICT MINERALS: At Tandem’s request, Supplier shall promptly provide Tandem with the source and chain of custody of any Conflict Minerals present in Products. Supplier shall conduct reasonable due diligence and inquiry to gather such information, and certify, such information is true, accurate, and complete. Supplier shall promptly contact Tandem if any such information changes. “Conflict Minerals” means columbite-tantalite, also known as coltan (from which tantalum is derived), cassiterite (tin), gold, wolframite (tungsten), or their derivatives, as further defined in Section 1502 of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulations.

GOVERNING LAW: The PO and these Terms will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the PO.

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VENUE: Subject to the Arbitration section below, any legal suit, action, or proceeding arising out of or related to the PO must be instituted exclusively in the federal or state courts in San Diego County, California, and each party irrevocably submits to such jurisdiction.

EQUITABLE RELIEF: Notwithstanding the Arbitration section above, each Party may seek injunctive or other equitable relief in a court of competent jurisdiction in accordance with the Venue section above.

INDEPENDENT CONTRACTORS:  Tandem and Supplier are independent contractors. Neither party will have the power, and shall not hold itself out as having the power, to act for or in the name of, or to bind the other party.

SUBCONTRACTORS: Supplier shall not subcontract or delegate any duty under the PO or these Terms without Tandem’s prior written consent. Suppler shall be liable for the acts and omissions of its subtractors.

ASSIGNMENT: Supplier shall not, without first obtaining the written consent of Tandem, assign or transfer the PO, in-whole or in-part. Any attempted assignment without Tandem’s consent will be void. Any permitted assignee must assume in writing all Supplier obligations under the PO.

FORCE MAJEURE: Neither party shall be liable for failure to perform its obligations under a PO if such failure results from an act of God, provided that the other party is notified in writing of these circumstances by the affected party as soon as it becomes aware of the occurrence of such event and that the affected party uses all reasonable endeavors to prevent, avoid, overcome or mitigate the effects of such cause. Notwithstanding anything in these Terms to the contrary, no delay or failure of to perform Supplier’s obligations hereunder will be excused to the extent it is caused by Supplier’s labor problems, or labor problems of Supplier’s subcontractors or suppliers, including, lockouts, strikes, or slowdowns or Supplier’s inability, or the inability of Supplier’s subcontractors or suppliers to obtain power, materials, labor, equipment, or transportation. The doctrines of impossibility and impracticability will not apply to the PO.

PUBLICITY: Neither party shall publish any advertising, marketing, sales promotion, press release or other publicity matter relating to the PO without the prior written consent of the other party.

REMEDIES: Tandem’s rights and remedies under these Terms are cumulative, non-exclusive, and in addition to any other remedies available at law or equity.

ENTIRE AGREEMENT: These Terms and any related confidentiality agreement executed by the parties, will govern the PO and constitutes the sole and entire agreement of the parties with respect to the PO, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO, provided, however, that these Terms will not supersede any provisions of any other written agreement(s) in effect between the parties that governs the same subject matter of the PO.  

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CONFLICT: In the event of a conflict in the documents referred to herein, the order of precedence will be: (i) the terms specified by Tandem on the PO; (ii) any written agreement in effect signed by an authorized representative of Tandem and Supplier that governs the same subject matter as the PO; and (iii) these Terms.

CLICK-WRAP: Any “click-wrap” agreement, terms of use, electronic acceptance, order confirmation, or other terms that a user may be required to acknowledge or accept or that is otherwise displayed or accessible to a user when downloading, receiving, using, or otherwise accessing the Products or Services are of no force and effect as between Tandem and Supplier.

AMENDMENT: Any modification to the PO must be in writing and signed by an authorized representative of Tandem and Supplier.

INTERPRETATION: Any use of the word “including” in these Terms means “including, without limitation.” Unless otherwise specified in a particular case, the word “days” refers to calendar days. The section headings in these Terms are for convenience only and are not to be considered in interpreting or constructing these Terms.

NO WAIVER: No delay or failure to act in the event of a breach of these Terms will be a waiver of that or any subsequent breach of any provision and no waiver will be implied from conduct or failure to enforce or exercise rights. A waiver will not be effective unless in writing and signed by an authorized representative of a party claimed to have waived.

SEVERABILITY: If any provision of these Terms is held by a court of competent jurisdiction unlawful or unenforceable, that provision will be enforced to the maximum extent permissible to effect the intent of the parties, and the remainder of the provisions will continue in full force and effect.

SURVIVAL: provisions of these Terms that by their nature should survive termination or cancellation, will survive such termination or cancellation.

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