Standard Purchase Order Terms and Conditions


CONTRACT FORMATION

These Terms and Conditions, the provisions of any document referring to these Terms and Conditions, any attachments thereto, and any samples, drawings or specifications referred to therein, shall collectively constitute the "Purchase Order". This Purchase Order shall constitute our offer to purchase from you the products and services ordered (“Products”). We may revoke this offer at any time before your acceptance. Upon acceptance, you agree to sell and deliver Products to us in accordance with this Purchase Order. You shall be deemed to have accepted this offer by sending us a written acknowledgment, by delivering any Product ordered, or by commencement of work on Products to be specially manufactured for us.

WE HEREBY OBJECT TO AND REJECT THE PROVISIONS OF ANY ACKNOWLEDGMENT, ORDER ACCEPTANCE, WARRANTY STATEMENT, OR INVOICE WHICH ARE INCONSISTENT WITH OR IN ADDITION TO THE PROVISIONS OF THIS PURCHASE ORDER. THIS PURCHASE ORDER SHALL BE THE COMPLETE AND EXCLUSIVE CONTRACT BETWEEN US WITH RESPECT TO THE PRODUCTS AND MAY BE MODIFIED ONLY IN WRITING SIGNED BY OUR AUTHORIZED REPRESENTATIVE AND BY YOU. NO PRIOR PROPOSALS, QUOTATIONS, STATEMENTS, FORECASTS, COURSE OF DEALING OR USAGE OF TRADE WILL BE PART OF THE CONTRACT BETWEEN US.

COMMERCIAL TERMS

Price. Prices for Products are not subject to increase, except as may be permitted below under “Changes”. Price covers the net weight of material, packaging, labeling, and no extra charges of any kind (including charges for containers, insurance, packing, crating, storage, handling or cartage, interest charges, service charges, taxes, VAT, duties and the like) will be allowed. Unless prohibited by law, you will separately indicate on your invoice any tax that is required to be imposed on the sale of Products.

Changes. All quantities ordered are estimates only and may be revised as our requirements change. We may at any time make changes in Product specifications, drawings, designs, delivery dates, shipping instructions or other terms of the Purchase Order. Such changes will be confirmed in writing signed by our authorized representative. You must notify us within ten (10) days of our notice whether and to what extent such changes will affect price or time of delivery.

Transportation. Unless otherwise specified or specifically included in the pricing hereto, you agree to ship Products to us using our designated carrier with transportation charges billed directly to us by the carrier. We will not pay premium transportation charges unless authorized by us in writing. You will list any unauthorized charges not otherwise billed to us as a separate line item on your invoice. If you ship Products by an unauthorized method or carrier, you will pay any resulting increased freight costs. You will release rail or truck shipments at the lowest valuation permitted and will not declare value on Products shipped.

Title and Risk of Loss. Title and risk of loss will pass to us when the Products are delivered to our designated carrier, or to our docks if we agree not to use our designated carrier.

Shipments. You agree to assure deliveries in the quantities and on the dates specified in this Purchase Order. Unless otherwise expressly stated, time is of the essence. In the event any shipment is not made in time for delivery on the date and in the quantity set forth on the Purchase Order, we may: (i) return to you some or all of the Products in the shipment at your risk and expense, including without limitation warehouse or handling cost; (ii) purchase substitute products elsewhere and charge you with any resulting loss; (iii) direct you to make an expedited shipment of additional or replacement Products, with the difference in cost between any expedited routing and the Purchase Order routing to be paid by you; or (iv) debit you for costs incurred while manually receiving materials into our materials management system. You agree to notify us immediately if you ever have reason to believe that any Product will not be delivered as ordered, or a shipment will not be made as scheduled.

Packing List. Each shipment made by you shall include a packing list containing the Purchase Order number, our product identification and part number and revision, if applicable, quantity shipped, date of shipment, Country of Origin, Product weight, and such other information as we may reasonably request or is required by applicable law.

Invoices. Your Invoices shall contain the Purchase Order number, item number of such release, our part number(s) and revision number, as applicable, invoice quantity, unit of measure, unit price, currency, total invoice amount, your name and phone number, address to which remittance should be sent, and other such information as may be required by law or requested from time to time by us.

Inspection and Rejection. All Products delivered to us by you must meet the terms and conditions of this Purchase Order. All Products shall be received subject to our acceptance or rejection on or before the end of the Inspection Period. We may reject any entire order based upon a reasonable sampling of Products. “Inspection Period” means a reasonable time after delivery of any Products, to allow for the performance of any inspection, installation activities, testing, or trials. Partial or total payment by us for Products under this Purchase Order prior to the end of the Inspection Period shall not constitute its acceptance thereof, nor shall such payment remove your responsibility for any non-conforming items. You agree to provide and maintain inspection and process control systems acceptable to us with respect to the manufacture of Products, and you agree to keep and make available complete records of all your inspection work and process control work for the life of the Products plus seven (7) years.

Quality Assurance. You shall apply, maintain and document a quality system that complies with industry standards for guaranteeing that the Products and/or Services comply with the agreed quality. You shall give us at least sixty (60) days advance notice of a change in manufacturing location for the Products or a material change in the manufacturing process for the Products. In the event Tandem does not consent to such change, Supplier shall use best efforts to allow Tandem to make a last-time buy before such change.

Payments. We shall settle accurate invoices arising under this Purchase Order prepared in accordance with the terms hereof within sixty (60) days (unless we expressly stipulate a different time period herein) after receiving all compliant Product(s). All sums to be paid by us under this Purchase Order shall be in U.S. Dollars, unless otherwise agreed to by the parties. We will not be liable for any late fees, interest, carrying or other charges associated with any late payments in excess of any minimum requirements for late payments prescribed under applicable law.

Set-Off. We may deduct any amounts owed to us by you or any of your affiliates on any basis whatsoever under any order from the amount owed to you. We may set-off such amounts owed us by right, regardless of whether the legal requirements for set-off have been met or not.

Warranty. You represent and warrant that the Products will: (i) be owned by you and free of all liens, claims or encumbrances; (ii) conform strictly to all express or implied specifications, drawings, plans, instructions, samples or other descriptions; (iii) be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if you know (or have reason to know) of a particular purpose for which we or our customers intend to use the Products, will be fit for such particular purpose; (iv) be new and merchantable; and (v) be free from defects in design, material and workmanship, whether latent or otherwise. You represent and warrant that neither the Products nor use of the Products will infringe any patent, copyright, trade secret, trademark or other property right of a third party. You represent and warrant that any service you may provide will be performed in a competent manner and be fit for any purpose for which you know or have reason to know we or our customers intend to use such service. Epidemic Failure: Should Products shipped in any 90-day period to us or should all Products cumulatively received by us experience a failure rate of more than 1% from the same defect or more than 3% from cumulative defects, you shall prepare a plan for diagnosing and addressing the problem and will be responsible for all costs incurred by us and our customers in rectifying such failures, including, without limitation, for engineering changes, testing and field-recovery costs, as well as for all damages.

You agree that these warranties: (x) survive the inspection, acceptance and use of the Products by us and our customers; (y) are for the benefit of us and our successors, assigns, customers and users of our products; and (z) are in addition to any warranties and remedies to which we may otherwise agree or which are provided by law. You agree to extend to our customers and us (and to enforce) any warranties received from your suppliers.

Indemnification. You agree to defend, indemnify and hold us and our customers harmless from and against any and all claims (including without limitation claims for infringement of intellectual property, breach of contract, death or injury to a person or injury to property, or other tort claims), liabilities, damages (whether direct or indirect, incidental or consequential) and expenses (including court costs and attorneys' fees) arising out of or relating to the breach by you of any covenant, representation, certification, or warranty contained in this Purchase Order, or from any act or omission of you or your agents, employees or subcontractors. We will notify you of any such claim, suit or proceeding and will assist you (at your expense) in the defense of the same.

Packaging and Labeling. You shall be responsible at your own expense for the safe and suitable packaging of the Products. You undertake to observe the requirements of all relevant regulations relating to the packaging, labeling and carriage of the Products in the countries of manufacture, shipment, transit or destination.

TERMINATION

Without Cause. We may terminate all or any part of the Purchase Order at our convenience, without cause, at any time by giving you ten (10) days written notice. In such event, you shall immediately cease all work and terminate all orders and contracts, and we shall be liable to you only for your reasonable actual costs which were required based on lead times as a direct result of the termination which may not be recovered or mitigated (e.g. purchased materials and labor costs incurred prior to receipt of notice of termination). You will notify us in writing of such costs within thirty (30) days of termination. The foregoing shall constitute our only liability to you for termination without cause.

With Cause. If you default, we may terminate all or any part of the Purchase Order without liability to you by giving notice to you. A default will occur if you: (i) fail to perform within the time period specified in the Purchase Order; (ii) so fail to make progress as to endanger performance of the Purchase Order, (iii) fail to comply with the applicable laws and regulations under which you do business; or (iv) fail to comply with our integrity policies or the compliance requirements described herein. We may terminate this Purchase Order upon a default and if you do not cure the default within ten (10) days (or any longer period we authorize in writing) after your receipt of our written notice of default. Additionally, if we determine that any of your representations, warranties, certifications or covenants are untrue, we shall have the right to terminate this Purchase Order immediately without further compensation to you, and you shall compensate us for any damages suffered by us as a result of your untrue representations, warranties, certifications or breach of covenants. A default will also occur if you fail to meet your financial obligations as they become due, if any proceeding under the bankruptcy or insolvency laws is brought against you, a receiver is appointed for you, or you make an assignment for the benefit of creditors. If a Purchase Order is terminated due to your default, without prejudice to any other legal or equitable remedies available to us, we will have the right to: (a) refuse to accept delivery of any and all Products; (b) return to you unused Products already accepted and recover from you payments made for such Products (and for our freight, storage and other expenses); (c) recover any advance payments to you for undelivered or returned Products; (d) purchase Products elsewhere and charge you with any resultant losses, including without limitation incidental or consequential damages incurred which are attributed to your default; and (e) take title to and possession of any previously undeliverable part of work performed under this Purchase Order.

Applicable laws. You represent, warrant, certify, and covenant that your performance under this Purchase Order will comply with all applicable laws, ordinances, rules, and regulations, and all conventions and standards, as amended from time to time, of each and all countries where the Products are to be manufactured, used, or delivered, or your performance is to occur, or that relate in any way to the manufacture, labeling, transportation, importation, exportation, licensing, certification, or approval of Products, including, without limitation, those prohibiting bribery or similar payments or practices, and those related to environmental protection, import and export, duties and customs, wages, hours and conditions of employment, occupational safety, ionizing radiation and licensing requirements, food and drug requirements, discrimination, sexual harassment, immigration, subcontractor selection, health and safety, toxic substances, hazardous materials, electrical or electronic equipment, and minority owned businesses.

Conflicts Minerals. You shall disclose any “conflict minerals” (as such term is defined below) used in the production of any Product, and, in the event such materials are used, shall submit, as applicable, either (i) its report filed with the Security and Exchange Commission under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection act, or (ii) a description reasonably acceptable to us of measures taken to assure the appropriate sourcing and chain of custody of such materials. As used above, the term “conflict minerals” shall have the meaning ascribed to it under Dodd-Frank and shall include, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives, or any other mineral or its derivatives determined by the US Secretary of State to be financing conflict in the Democratic Republic of the Congo.

Product Changes. Changes proposed by you, both material and process changes, which may affect form, fit, function, reliability, serviceability, performance, interchangeability, regulatory compliance, safety or interface with our equipment must be submitted along with a written change notice, for our approval. At a minimum, the change notice must include your affected part number, anticipated date of implementation, reasons for the change and the specific dates of the change. This change notice must be sent to us a minimum of ninety (90) calendar days in advance of the proposed implementation date. We then have fifteen (15) days to respond to you with approval of the change, disapproval of the change, or a request for sample evaluation by us.

Our Property. All tools, dies, layouts, models, drawings, plans, data, manufacturing aids, testing or other equipment or materials, inventions, technology, trade secrets, know how, all reproductions and replacements, or other proprietary information, and all intellectual property rights in the foregoing, which we furnish to you, or which is developed or acquired at our expense or at our direction in the performance of work hereunder, shall be our property and deemed a bailment. You hereby assign and agree to assign to us, and to cause your employees to assign to us, in each case without additional compensation, all such property. You shall bear the risk of loss and damage to all such property. You shall perform routine maintenance of such property at your expense. All such property shall be safely maintained separate from your property, and marked "Property of Tandem Diabetes Care". You shall not move our property from your premises or possession without our prior written consent. You agree not to substitute any property for our property and not to use such property except for performance of work hereunder or as authorized by us. You also agree to insure any tangible property at full replacement cost. Tangible property will be held at your risk and subject to removal at our written request (in which event you will redeliver such property to us at your expense in the same condition as originally received by you, reasonable wear and tear excepted).

Your Information. Unless expressly agreed in writing to the contrary, any knowledge or information which you disclose to us will not be considered confidential or proprietary information, and we may use it free from any restrictions. You acknowledge that we will use and rely upon information you furnish to us and that you will indemnify and hold us harmless from any and all costs and damages suffered by us as a result of any inaccuracies in such information.

Our Information. You agree to keep confidential any materials or information furnished by us to you. You will not disclose or use, directly or indirectly, such materials or information for any purpose other than the purposes of this Purchase Order. You will return to us or destroy (if specified by us), at your expense, all such materials and information upon completion of work, termination of this Purchase Order or our request. Notwithstanding anything herein to the contrary, you or your employees or other agents, may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this transaction and all materials of any kind (including opinions and other tax analyses) that are provided to you relating to such tax treatment and tax structure.

Health and Safety. Your employees, agents and representatives visiting any of our sites shall be subject to such safety and security regulations as may be in force on that site. You shall ensure that all information held by or reasonably available to you regarding any potential hazards known or believed to exist in the transport, handling or use of the Products and/or performance of the services shall be received by us in writing prior to delivery of the Products and/or performance of the services.

Audit Rights. At our request, you will allow us to audit and to copy, if applicable, at your expense, any documents you have relating to the performance of your obligations under this Purchase Order or other applicable legal requirements. Additionally, at our request, you will allow us reasonable access to the sites where the work under this Purchase Order is being performed in order to assess (1) work quality, (2) conformance to our specifications and adherence to a quality system and (3) conformance with your representations, warranties, certifications and covenants under this Purchase Order.

Intellectual Property. No rights are granted to you under any of our patents, copyrights, trade secrets or other property rights except as may be expressly agreed to by us. You will not use or incorporate into Products any intellectual property of others without their written permission. Without limiting your indemnity with respect to intellectual property, if the use of a Product or any part thereof is enjoined by a court, you will, at our option and your expense, either procure for us the right to continue using the Product or part, replace the same with a non-infringing equivalent, or remove the Product, refund the purchase price and reimburse us for any related costs incurred by us.

Trademarks. The names and trademarks of each party shall remain their sole and exclusive property. If you place one of our trademarks on any Product, or if a Product is unique to us, such Product will not bear your name or trademark and will not be sold to anyone else.

Publicity. You may not, without our prior written consent, issue any press release or announcement, advertise or publish the fact that we have contracted to purchase goods or services from you, disclose information relating to this Purchase Order, or use our name or trademarks, or the names or trademarks of any of our affiliates or customers.

Work on Our Premises. If you work on our premises or the premises of our customer, you will comply with any applicable site rules and regulations. Except to the extent a claim is due solely and directly to our negligence or our customer’s negligence, you will indemnify us and the customer from any claim which may result in any way from any act or omission of you or your agents, employees or subcontractors while on our premises or the premises of our customer.

Insurance. You agree to maintain such public liability insurance (including without limitation workers compensation, employer’s liability, comprehensive general liability, product liability and property damage insurance) as will adequately protect us in the event of any liability arising under this Purchase Order and, upon our request, you will provide us with evidence of such insurance.

Dispute Resolution. The Purchase Order shall be governed by and interpreted in accordance with the laws of the State of California, exclusive of conflict or choice-of-law rules, except to the extent there may be any conflict between the law of the State of California. The parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods, as may be amended from time to time, shall not apply to the Purchase Order. The parties hereby consent to the personal and exclusive jurisdiction and venue of the California state courts and the federal courts located in San Diego County, California.

Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief or intellectual property claims, any dispute, claim or controversy arising out of or relating in any way to the Purchase Order, any other aspect of the relationship between the parties or their respective affiliates and subsidiaries, the interpretation, application, enforcement, breach, termination or validity thereof (including, without limitation, any claim of inducement of the Purchase Order by fraud and a determination of the scope or applicability of this agreement to arbitrate), or its subject matter (collectively, “Disputes”) shall be determined by binding arbitration before one arbitrator. The arbitration shall be administered by JAMS conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of the Purchase Order, including Rules 16.1 and 16.2 of those Rules. Notwithstanding anything to the contrary in the Purchase Order, the Federal Arbitration Act shall govern the arbitrability of all Disputes. The arbitration shall be held in San Diego County, California, and it shall be conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief.

IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to the Purchase Order, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

Remedies. The rights and remedies herein are cumulative and in addition to all other rights and remedies available at law or in equity.

Waiver and Invalidity. Any waiver or renunciation of a claim or right arising out of breach must be in writing and signed by the injured party. Any failure to enforce any provision of the Purchase Order may not be construed as a waiver of such provision or any other provision nor of the right to enforce such provision. The invalidity, in whole or in part, of any provision hereof shall not affect the remainder of the provisions.

Assignment. You may not assign any right or delegate any duty hereunder without our prior written consent. Any attempted assignment or delegation by you will be void.

Independent Contractor. The relationship of the parties hereunder shall be that of independent contractors. Nothing in this Purchase Order shall be deemed to create a partnership, joint venture, or similar relationship between the parties, and no party shall be deemed to be an agent of the other party. You shall indemnify, defend, and hold us harmless from and against any and all claims by your employees, contractors, or subcontractors regarding entitlement to any compensation or benefits from us or that we are for any purpose their employer or co-employer, including any claim for taxes or related penalties.

Headings. The headings on these Terms and Conditions are for convenience only and may not be used in the interpretation thereof.

Force Majeure. Any delay or failure of you to perform your obligations hereunder shall be excused if and to the extent that it was caused by an event or occurrence beyond your reasonable control and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by you to us within ten (10) days of the occurrence of such event. During the period of such delay or failure to perform by you, we may acquire substitute or replacement items from one or more alternative sources, and in such event, there may be a proportionate reduction of the quantity of Products required from you. If the delay lasts more than thirty (30) days or if you do not provide adequate assurances that the delay will cease within thirty (30) days, we may terminate this Purchase Order and any funds prepaid by us shall be promptly returned.

Labor and Supply Problems Not Force Majeure. Notwithstanding anything in this Purchase Order to the contrary, no delay or failure of to perform your obligations hereunder shall be excused if and to the extent that it is caused by your labor problems, or labor problems of your subcontractors and/or suppliers, such as, by way of example and not by way of limitation, lockouts, strikes, and slowdowns or your inability, or the inability of your subcontractors and/or suppliers to obtain power, materials, labor, equipment, or transportation.