PURCHASE ORDER TERMS & CONDITIONS

1. Application of These Terms

1.1 Subject to clause 1.2, these Terms shall: (a) govern the supply of Products or Services ordered under the PO issued by Convatec; and (b) prevail over any other terms and conditions and/or order acknowledgements provided by the Supplier.
1.2 Where Convatec and the Supplier have an Existing Agreement in place, the terms of the Existing Agreement shall govern the supply of Products or Services under the PO instead of these Terms.

2. Definitions and Interpretation

2.1 In these Terms, the following definitions apply:
“Authorised Persons” means the directors, employees, officers, advisers, agents, and contractors of the Recipient Party.
“CGMPs” means the Current Good Manufacturing Practice Regulations enforced by the US Food and Drug Administration.
“Confidential Information” means all information in any medium or format (whether or not marked as “confidential”), which relates to a party (the “Disclosing Party”) or to its employees, officers, customers, or suppliers, and which is disclosed by the Disclosing Party to the other party (the “Recipient Party”) in the course of their dealings relating to the PO, whether before or after the date of the PO, and which would reasonably be regarded as confidential. However, the following information is not “Confidential Information”: (a) information which is in the public domain other than as a result of breach of these Terms or any separate confidentiality undertaking between the parties; (b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (c) information which was developed or created independently by or on behalf of the Recipient Party.
“Convatec” means the Convatec entity specified in the PO.
“Convatec Affiliates” means Convatec’s subsidiaries, holding companies, and every subsidiary of each such holding company from time to time (and "subsidiary" and "holding company" shall be construed in accordance with section 1159 of the Companies Act 2006).
“Data Protection Legislation” means the GDPR, the UK GDPR, Directive 2002/58/EC, and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts, or consolidates any of them, and all other applicable Laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by supervisory authorities.
“Delivery” means, as applicable: (a) the delivery of the Products ordered under the PO to the delivery address specified in the PO or otherwise notified by Convatec to the Supplier; and/or (b) the completion of the Services, in all cases in accordance with the PO and these Terms, and “Deliver” shall be construed accordingly.
“DPA” means a data processing agreement entered into by the parties.
“Existing Agreement” means an agreement between Convatec and the Supplier governing the purchase of the Products or Services that remains in effect at the point of the issuance of the PO.
“Fees” means the fees specified in the PO for the Products and/or the Services.
“GDPR” means, in each case to the extent applicable to the processing activities: (a) Regulation (EU) 2016/679; and (b) the GDPR as applicable as part of UK domestic law.
“Intellectual Property Rights” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, service marks, and trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions, and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect which currently exist anywhere in the world.
“Laws” means (a) statutes, statutory instruments, regulations, by-laws, rules, ordinances, guidance, or subordinate legislation; (b) the common law and law of equity; (c) a binding court order, judgement, or decree; (d) any industry code, guidance, policy, or standard which, in each case, is enforceable by law or a regulator; and (e) any direction, policy, rule, requirement, or order that is legally binding and that is imposed or given by a regulator.
“Personal Data” has the meaning set out in the Data Protection Legislation.
“PO” means the purchase order issued by Convatec concerning the Products and/or Services.
“Products” means the items, goods, deliverables, or materials set out or referenced in the PO.
“Product Recall” means where: (a) any government authority issues a request, directive, or order that any of the Products be recalled or withdrawn from any market; (b) a court of competent jurisdiction orders such a recall or withdrawal of any of the Products; or (c) Convatec decides or determines in its sole discretion to recall or withdraw any of the Products whether on the basis that the Products are (or may be) unsafe, that the Products are (or may be) non-compliant with any applicable Laws, regulation, or safety-related standard, that a defect (or potential defect) in the Products may cause harm to Convatec’s reputation or brand, or for any other reason.
“Services” means the services set out or referenced in the PO.
“Specification” means the specification, requirements, or scope in respect of the Products or Services agreed by the parties in writing or identified in the PO (or if no specification, requirements, or scope is so agreed or identified, the Supplier’s published technical, functional, or operational specifications).
“Supplier” means the supplier entity specified in the PO.
“Terms” means these purchase order terms and conditions.
“Warranty Period” means the shelf-life of the relevant Products as set out in the relevant certificate of compliance (or, if no shelf-life is so specified, two years from the manufacturing date of the relevant Products).

3. Scope

3.1 The Supplier provides the Products and/or the Services to Convatec on a non-exclusive basis.
3.2 Nothing in these Terms commits or guarantees any future purchases of Products and/or Services by Convatec.
3.3 The Products and/or the Services are purchased for the benefit of Convatec and the Convatec Affiliates.

4. Delivery

4.1 The Supplier shall Deliver any Products ordered under the PO: (a) in accordance with the PO, these Terms, and any other reasonable instructions provided by Convatec; and (b) by the delivery date specified in the PO.
4.2 The Supplier shall Deliver any Services ordered under the PO: (a) in accordance with the PO, these Terms, and any scope of work agreed between the parties; and (b) in accordance with any dates set out in the PO (including any milestones) or as otherwise agreed by the parties in writing.
4.3 Where the PO does not specify a date of Delivery (and the parties have not otherwise agreed a date in writing), the date for Delivery shall be 30 days following the date of the Supplier’s receipt of the PO.

5. Fees and Payment

5.1 Unless otherwise agreed in writing, the Fees are: (a) inclusive of all requirements including without limitation all packaging, labelling, customs, freight, and transportation duties or charges; (b) exclusive or inclusive of VAT as stated in the PO and any applicable VAT shall be paid by Convatec at the prevailing rate prescribed by applicable Laws; and (c) inclusive of all travel, accommodation, document reproduction, or other expenses incurred by the Supplier in connection with the PO.
5.2 Unless otherwise agreed in writing, the Supplier shall submit an invoice for the Fees to Convatec following Delivery and send such invoice to Convatec’s nominated invoice address set out in the PO (or otherwise nominated in writing by Convatec). Each invoice submitted by the Supplier shall include the PO’s unique identification number and be in accordance with any other reasonable instructions of Convatec.
5.3 Convatec shall pay all undisputed amounts to the Supplier account indicated on the relevant invoice within 90 days from the date of receipt of the Supplier’s invoice.
5.4 If there is a good faith dispute about whether any amount is payable under these Terms, Convatec may withhold the amount in dispute until the dispute is resolved, provided that: (a) Convatec shall pay any undisputed amount in accordance with clause 5.3; and (b) the other obligations of the parties will in no way be affected by any such dispute. To enable payment of any undisputed amount, the Supplier shall credit the disputed invoice and issue a new invoice for the undisputed amount.
5.5 Convatec may at any time, upon notice to the Supplier, set off any liability of the Supplier to Convatec against any liability of Convatec to the Supplier.
5.6 If Convatec fails to make payment in accordance with this clause 5, then the Supplier may charge interest on the overdue amount at a rate of two percent (2%) per annum above the base rate of the Bank of England.

6. Title and Risk in Products

6.1 Title and risk in any Products ordered under the PO shall pass to Convatec on Delivery.

7. Documentation

7.1 If the Supplier is required to provide any documentation (including user manuals or training materials) in relation to or as part of the Products or Services ordered under the PO, the Supplier shall ensure that the documentation: (a) is in English; (b) contains sufficient information to enable Convatec to make full and proper use of the Products or Services; and (c) is presented in a clear and accurate manner.

8. Cancellation and Rejection

8.1 If the Products and/or Services fail to materially comply with the Specification, the PO, or these Terms, or if Delivery is delayed by more than 7 days after the due date under clause 4, then Convatec may: (a) immediately cancel the PO (in whole or in part) by written notice to the Supplier; or (b) reject the affected Products or Services.
8.2 If Convatec cancels the PO or rejects all or part of the Products or Services under clause 8.1, the Supplier shall accept the return of any Products (if applicable) and immediately refund to Convatec the total Fees paid for the Products or Services, plus (in the case of Products) any costs incurred by Convatec in returning the Products to the Supplier.

9. Quality

9.1 The Supplier shall manufacture any Products ordered under any PO in accordance with these Terms, the relevant PO, the Specification, all applicable Laws, CGMPs, and recognised quality standards (for example, ISO 9001/2 or ISO 13485). The Supplier is responsible for the investigation of any Products complaints arising from the manufacturing process.
9.2 The Supplier agrees that it shall conduct all of its operations dealing with the Products in full compliance with all applicable Laws, CGMPs, and other requirements then in effect.
9.3 The Supplier shall not in any way impair Convatec’s ability to obtain any regulatory approvals in relation to Convatec products incorporating the Products (where applicable). Upon Convatec’s request, the Supplier shall provide all information reasonably required by Convatec for the purposes of the registration, authorisation, and/or placing on the market of any such Convatec products in any applicable jurisdiction.
9.4 The Supplier shall immediately: (a) notify Convatec of any contact which the United States Food and Drug Administration (FDA), United Kingdom Medicines and Healthcare products Regulatory Agency (MHRA), or any other regulatory or other governmental authority has with it concerning the Products, including, but not limited to, CGMPs, product registrations, and safety and efficacy claims; and (b) report to Convatec any adverse incidents related to the manufacture of the Products which may require notification of regulatory authorities. The parties shall consult with one another in an effort to arrive at a mutually agreed response.
9.5 In the event that Convatec is required or voluntarily elects to recall or withdraw any Convatec products incorporating the Products from any market as a result of the Supplier’s processes or any non-compliance with these Terms, the Supplier shall fully cooperate with Convatec in connection with such recall or withdrawal.
9.6 The Supplier’s documentation for manufactured Products shall be retained for 10 years beyond the supply of the Products. The Supplier shall provide quality control examination of a sample prior to release to ensure the Products accord with the Specification. The Supplier shall notify Convatec of any rejection of the Products intended for Convatec, in whole or in part.
9.7 The Supplier shall keep and maintain full, complete, and detailed records of its operations under the PO for 10 years following Delivery, including without limitation, quality control and Products purchased by Convatec.
9.8 The Supplier shall (and shall procure that its sub-contractors providing raw materials shall) provide Convatec and its representatives from time to time, as elected by Convatec upon reasonable notice during normal working hours, access to books, records, documentation, and facilities which are reasonably necessary to audit and verify records and inspect operations relevant to the manufacture and supply of Products and raw materials used in the Products. Such access will be exercised in such a manner as to avoid unreasonable interference with operations and will end two (2) years following the date of the PO.
9.9 The Supplier shall (and shall procure that its sub-contractors providing raw materials shall), upon request: (a) furnish Convatec with complete valid copies of any and all of Supplier’s (and sub-contractors’) licences and permits required under applicable Laws relating to the manufacture of the Products and raw materials used in the Products; and (b) provide Convatec reasonable access to any facility of the Supplier (and/or such sub-contractor) at which Products or raw materials used in the Products are to be manufactured, processed, packaged, or stored.

10. Intellectual Property

10.1 Each party (and/or its third-party licensors) retains ownership of any Intellectual Property Rights in any materials created by it prior to or outside the scope of the PO (“Pre-Existing IP”).
10.2 Convatec will own all right, title, and interest, including Intellectual Property Rights, in and to any documentation, materials, software, or other output developed by or on behalf of the Supplier for Convatec under the PO (“Deliverables”), excluding the Supplier’s Pre-Existing IP.
10.3 Excluding the Supplier’s Pre-Existing IP incorporated into any Deliverables, the Supplier: (a) hereby irrevocably assigns to Convatec as at the date of creation all of its right, title, and interest (including all Intellectual Property Rights) in and to any Deliverables without further consideration and such assignment will also be an assignment (in respect of any copyright existing therein) of future copyright pursuant to section 91 of the Copyright, Designs and Patents Act 1988 or equivalent provision in any relevant jurisdiction; and (b) shall do and/or procure all acts and things as may be reasonably necessary, and execute all necessary documents relating to such matters, to vest the ownership of the Deliverables (including all Intellectual Property Rights therein) in Convatec.
10.4 The Supplier grants to Convatec a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable, and sub-licensable licence to use the Supplier’s Pre-Existing IP: (a) to the extent that such Pre-Existing IP is contained in the Products, for the purpose of manufacturing the Convatec products and supplying such Convatec products to its customers; and (b) otherwise so as to receive full benefit of the Deliverables. Such licence shall take effect on the date that the relevant Supplier’s Pre-Existing IP is first made available to Convatec.

11. Warranties and Indemnities

Product Warranties
11.1 The Supplier warrants that any Products ordered under the PO: (a) shall conform to the Specification, these Terms, and the PO, and shall continue to materially so conform during the Warranty Period; (b) shall be produced in compliance with, and comply with, all applicable Laws and industry standards; (c) during the Warranty Period, shall be free from defects in materials, workmanship, and fabrication; (d) are of satisfactory quality and reasonably fit for their purpose and use; (e) are new and have not been used by any person, unless otherwise agreed in writing by Convatec; (f) shall, at the point of Delivery, have no less than 85% of their original shelf life remaining; and (g) shall be free from any lien, charge, mortgage, reservation of title, encumbrance, or other adverse interest of any nature when title passes to Convatec.
Services Warranties
11.2 The Supplier warrants that the Services ordered under the PO: (a) will be performed with the skill and care to be reasonably expected of a service provider which is a leader in the field of providing equivalent services; (b) will be performed in compliance with the PO, these Terms, the Specification, and all applicable Laws; and (c) will be performed using an adequate number of appropriately trained, skilled, and experienced personnel.
Compliance with Applicable Laws
11.3 The Supplier warrants and undertakes that it will supply the Products and/or perform the Services ordered under the PO, and perform its other obligations under these Terms, in accordance with all applicable Laws.
Intellectual Property Rights Warranty
11.4 The Supplier warrants that (a) the use or receipt by Convatec or any Convatec Affiliate of any Products or Deliverables ordered under the PO (including to manufacture, sell, and distribute Convatec products); and (b) the receipt of any Services ordered under the PO, will not infringe the Intellectual Property Rights of any person.
Indemnity
11.5 The Supplier shall indemnify Convatec from any loss, damage, fines, liability, charge, expense, outgoing, or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind arising out of a breach by the Supplier of any warranty or undertaking in this clause 11.

12. Product Recall

12.1 In the event of a Product Recall relating to any Products ordered under the PO: (a) the party instigating the Product Recall shall notify the other party in writing of the Product Recall; (b) the parties shall take all appropriate corrective actions and measures in relation to the Product Recall (including, but not limited to, pursuant to the parties’ obligations under applicable product safety regulations or requirements); and (c) the Supplier shall give such assistance as Convatec reasonably requires in connection with the Product Recall and comply with Convatec’s instructions regarding the implementation of the Product Recall.
12.2 In the event that a Product Recall results from the defective or unsafe design, manufacture, or assembly of any Products ordered under the PO or any other cause or event attributable to the Supplier, the Supplier shall: (a) be responsible for all costs and expenses incurred in the Product Recall; and (b) indemnify Convatec against all costs incurred by Convatec in the Product Recall.

13. Liability

13.1 Nothing in these Terms will operate so as to exclude or limit the liability of either party to the other for fraud, death, or personal injury arising out of negligence or any other liability that cannot be excluded or limited by law.
13.2 Subject to clause 13.1, the total aggregate liability of Convatec to the Supplier for any and all causes of action arising under or in connection with the PO or these Terms, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty, or otherwise but excluding Convatec's obligation to pay the Fees under clause 5, shall not exceed a sum equal to 100% of the total Fees paid or payable under the PO.
13.3 Neither party will be liable to the other party for any indirect or consequential losses or damage, arising under or in relation to the PO, even if the first party was aware of the possibility that such loss or damage might be incurred by the other party.

14. Confidentiality

14.1 The Recipient Party shall: (a) keep all Confidential Information secret and securely protected against theft or unauthorised access; (b) not disclose Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with this clause 14; and (c) only use or make copies of Confidential Information in connection with and to the extent necessary for the purposes of the PO.
14.2 The Recipient Party may disclose Confidential Information to Authorised Persons on a “need to know” basis, provided that the Recipient Party: (a) informs any such Authorised Persons that the Confidential Information is confidential; (b) ensures that such Confidential Information is kept confidential by any such Authorised Persons; and (c) shall be responsible for all acts and omissions of Authorised Persons as though they were its own acts or omissions.
14.3 The Recipient Party may disclose any Confidential Information to any regulator, law enforcement agency, or other third party if and to the extent it is required to do so by applicable Laws.

15. Data Privacy

15.1 The parties shall comply with their obligations under the Data Protection Legislation.
15.2 The Supplier will not process any Personal Data of Convatec unless it has entered into a separate DPA with Convatec.

16. Miscellaneous

16.1 Where any provision of these Terms refers to a party notifying the other party, any such notice shall be in writing, properly addressed to the specified recipient at the address specified by the other party from time to time and sent by first-class recorded delivery with a copy transmitted via email. Any notice complying with this clause 16.1 will be deemed to have been received by the addressee on the later of: (a) two (2) business days after posting; and (b) the time and date of transmission of the associated email if received at or before 17:30 hours on any business day and otherwise at 09:30 hours on the next business day.
16.2 The rights, powers, and remedies provided in these Terms are cumulative and not exclusive of any rights, powers, and remedies provided by applicable Laws or otherwise.
16.3 Nothing in these Terms will be deemed to constitute a partnership or create a relationship of principal and agent for any purpose, between the parties.
16.4 The failure to exercise, or delay in exercising, a right, power, or remedy provided by these Terms or by applicable Laws will not constitute a waiver of that right, power, or remedy. If a party waives a right, power, or remedy arising as a result of a breach of any provision of these Terms, this shall not operate as a waiver of any right, power, or remedy arising as a result of any subsequent breach of that provision or any other provision of these Terms.
16.5 If any provision, or part of a provision, of these Terms is found by any court or authority of competent jurisdiction to be illegal, invalid, or unenforceable, that provision or part-provision will be deemed not to form part of these Terms, and the legality, validity, or enforceability of the remainder of the provisions of these Terms will not be affected, unless otherwise required by operation of applicable Laws. The parties shall use all reasonable endeavours to agree within a reasonable time any lawful and reasonable variations to these Terms which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
16.6 Each party shall at its own cost and expense execute (or use all reasonable endeavours to ensure the execution of) whatever further documents or deeds the other party reasonably requires from time to time for the purpose of giving that other party the full benefit of the provisions of these Terms.
16.7 In the event of any conflict between the English version of these Terms and any translation of these Terms, the English version shall prevail.

17. Entire Agreement

17.1 Subject to clause 1.2, the PO and these Terms constitute the entire agreement between the parties in relation to their subject matter, and supersede and extinguish all agreements, arrangements, promises, undertakings, proposals, warranties, representations, and understandings between them at any time before their respective signature (“Pre-Contractual Statements”), whether oral or written, in relation to that subject matter.
17.2 Each party acknowledges that in entering into the PO and these Terms it does not rely on any Pre-Contractual Statement made by or on behalf of the other party (whether made innocently or negligently) in relation to the subject matter of the PO or these Terms, other than those which are set out expressly in the PO or these Terms.
17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on, and hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
17.4 Nothing in this clause 17 shall limit or exclude the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

18. Governing Law and Jurisdiction

18.1 The PO, these Terms, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the PO or these Terms or their subject matter or formation.