All Purchase Order Terms and Conditions apply to both direct and indirect purchases. Anika makes direct purchases for goods and services that become a part of finished products, while indirect purchases are purchases of all other goods and services that do not become a part of Anika’s product.
USA PURCHASE ORDER TERMS AND CONDITIONS FOR SUPPLIERS WORKING WITH ANIKA THERAPEUTICS, INC.
1. AGREEMENT: This order is Anika’s offer to Seller and becomes a binding contract, subject to the terms hereof, when accepted by acknowledgement or commencement of performance by Seller. Buyer objects to all additions, exceptions, or changes to the terms, unless approved by Buyer in writing. To the extent there are any inconsistencies between these terms and those written on the face of the purchase order, the latter will control. If there is a supply contract between Anika and the Seller, the supply contract will control.
2. CHANGES: Anika reserves the right at any time to make written changes to one or more of the following: (a) specifications, drawings, and data incorporate in this Purchase Order; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery; (f) quantities and (g) the scope or quantity of the good or services, hereof, in which event an equitable adjustment will be made to any price, time of performance, and other provision of this order consistent with the original pricing, if appropriate. Claims for such adjustments made must be made within fifteen days from the date of receipt by Seller of notice of the change. Substitutions or changes in quantities or specifications by the Seller shall not be made without Anika’s prior written approval. Price increases shall not be binding on Anika unless evidenced by an amendment or revision to the Purchase Order signed by Anika’s authorized representative.
3. PRICE: Unless otherwise specified, the prices stated on the front of the applicable purchase order include all charges for packing, hauling, storage, transportation to point of delivery, and taxes. Sales and use taxes not subject to exemption shall be stated separately on Seller’s invoice. Seller warrants that the prices quoted in this order are no greater than those currently charged any other buyer for similar quantities of goods or services. Any price reductions extended to others by Seller prior to delivery shall also be extended to Buyer.
4. SUBSTITUTION/MODIFICATIONS: No substitutions or modifications of any goods, component parts, tooling, sourcing of raw materials, processes, or manufacturing sites may be made without Anika’s prior written consent.
5. OVERSHIPMENT: Overshipment of goods not approved by Anika in writing will be returned, at Seller’s expense if such overshipment exceeds 10% of the total order price or $500, whichever is less.
6. INSURANCE: Seller shall obtain and keep in force for three years after the last delivery under this general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than $1 Million Dollars combined single limit with special endorsements providing coverage for:
a. Products Liability
b. Contractual Liability
c. Vendor Liability
If services are performed under this order on Anika’s premises, Seller shall also obtain Premises-Operations, Personal Injury and Independent Contractor’s Protective Liability Insurance coverage in the amounts that meet the statutory limits for the state in which the work is to be performed. If requested, Seller shall furnish Anika with certificate evidencing required insurance.
7. DELIVERY: Shipment or delivery of goods shall be in accordance with the schedule specified in this order. If Seller does not, or it appears that the Seller will not, meet such schedule, Anika may in addition to other rights or remedies provided by law or this order, require the Seller to ship the goods via expedited routing to meet the schedule or recover the time lost and Seller shall pay the difference in shipping costs.
8. RISK OF LOSS: Seller shall bear the risk of loss or damage to the goods covered by this order until they are delivered to and accepted by Anika.
9. INSPECTION/QUALITY TESTING AND ACCEPTANCE: Goods purchased under this purchase order are subject to Anika’s reasonable inspection, testing, and approval at Anika’s destination. Anika reserves the right to reject and refuse acceptance of goods which are not in accordance with this order or Seller’s representation or warranties, expressed or implied. Anika will charge the Seller for the cost of shipping rejected goods back to the Seller. Rejected goods may be returned to Seller, or held by Anika, at Seller’s risk and expense. Payment for any goods under this order shall not be deemed to be acceptance of the goods. Anika may issue a Nonconforming Material Notice (NMN) to Seller.
10. ASSIGNMENT/SUBCONTRACTING: Seller shall not assign this order or subcontract any material portion of the performance of it without Anika’s prior written consent.
a. Seller expressly warrants that the goods or services ordered shall be merchantable, shall confirm to this order, to specifications, drawings, and other descriptions referenced in this order, and to any accepted samples. All materials shall be free from defects in materials and workmanship; shall be free from defects in design unless the design was supplied by Anika; and shall be fit and safe for the intended purpose. Seller warrants that it is has clear title to the goods and that the goods and services shall be delivered free of liens and encumbrances. In addition, Seller warrants that the goods or services being provided to Anika do not infringe the intellectual property of any third party.
b. Seller warrants that the goods: (1) are not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act as amended (the “Act”), or within the meaning of any applicable state or municipal law in which the definitions of “adulteration” or “misbranding” are substantially identical with those contained in the Act; (2) are not goods which may not under the provisions of section 404, 505, 512, 515, or 516 of the Act be introduced into Interstate commerce, or which may not under substantially similar provisions of any State or municipal law be introduced into commerce; (3) are in full compliance with biological products section of the Public Health Service Act; (4) if shipped on wooden pallets, are shipped on heat-treated wooden pallets; and 5) shipped on pallets free of 2, 4, 6-tribromoanisole (TBA) and 2,4,6-tribromophenal (TBP).
c. All these warranties and other warranties as may be prescribed by law shall extend to Buyer, its successors, assigns, and customers and to users of the goods or services and shall run through any expiration date stated on the goods, or, if no expiration date is stated, then for a period of one (1) year after delivery. Claims under these warranties must be made within the applicable period prescribed by statute.
12. RECALL: In the event that a recall of the goods is necessitated by a defect, a failure to conform to the specifications, applicable laws or any other reason within the Seller’s control, Seller shall bear all costs and expenses of such recall, including without limitation, cost associated with notifying customers, customer refunds, costs of returning the goods, lost profits, and other expenses incurred to meet obligations of third parties.
13. SPECIAL LAWS/PROVISIONS: In the performance of this order, Seller will comply with all applicable Federal, State, and local laws and ordinances and all lawful orders, rules and regulations thereunder, including the Fair Labor Standards Act, 1938, as amended (29 U.S.C. Sec 201-219), the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. Sec 34-45), the Contract Work House Standards Act (40 U.S.C. Sec. 327-330), Occupational Health and Safety Act (Pub L 91-596), and all lawful rules and regulations thereunder, and, on its invoice or in other form satisfactory to Anika, Seller shall submit certification with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under Section 14 thereof
14. MATERIAL FURNISHED BY ANIKA: Seller shall not use, reproduce, or appropriate for or disclose to anyone other than Anika, any material, tooling, dies, drawings, designs, or other property or information furnished by Anika (“Material”) without Anika’s prior written approval. Title to all material shall remain with Anika at all times, where practical material shall be clearly marked or tagged to indicate ownership. Seller shall bear the risk of loss or damage to the Material until it is returned to Anika. All material, whether or not expired, spoiled or used, shall be returned to Anika at termination or completion of this order unless Anika otherwise directs.
15. REFERENCE TO ANIKA: Except to the extent required by law, Seller shall make no reference, advertisement, or promotion regarding Anika or Anika’s purchase or use of the goods or serviced covered by this order without prior written consent of Buyer.
16. USE OF ANIKA’S INFORMATION/CONFIDENTIAL INFORMATION: Seller shall not advertise, publicly announce or provide to any other party information relating to the existence of this Agreement or use Anika’s name in any format for any promotion, publicity, marketing or advertising purpose, without Anika’s prior written consent. All information, drawings, material, goods, equipment, apparatus or documents disclosed or delivered to Seller by Anika or arising from work or services done for Anika, and also all knowledge of any business relationship between Seller and Anika, shall be treated by Seller as confidential proprietary information of Anika and shall not be disclosed or made available to others by Seller without prior written permission by an officer of Anika. Seller also agrees not to use any of such information, drawings, material, goods, equipment, apparatus or documents for the manufacture or production of products or components for any other party or for Seller. Such obligation shall not apply to any information, material, goods, equipment or apparatus which Seller establishes (a) is already known to Seller at the time of its receipt from Buyer as shown by Seller’s records, (b) is or subsequently becomes available and accessible to the public through no fault of Seller, or (c) is disclosed to Seller by a third party on a non-confidential basis
17. INDEMNIFICATION: Seller, at its expense, shall protect, defend and indemnify Anika, Anika’s customers, and the users of Anika’s goods against all claims and proceedings alleging infringement of any United States or foreign patent by any goods delivered under this order, and Seller shall hold them harmless from any resulting liabilities and losses, provided Seller is reasonably notified of such claims and proceedings. Seller’s obligation shall not apply to goods manufactured pursuant to detailed designs furnished by Anika nor to any infringement arising from the use or sale of goods in combination with goods not delivered by Seller if such infringement would not have occurred from the use or sale of such goods solely for the purpose for which they were designed or sold to Buyer. Seller, at its expense, shall also indemnify Anika and hold Anika harmless from any and all liability, demands, causes of action or claims, whether well founded or otherwise, including the cost of defending the same, for bodily injury to any person or damage to property, either real or personal, of any person whomsoever in any way arising out of, in the course of, or in connection with the goods or services purchased hereunder or the operations of the Seller in carrying out the provisions and terms of this Agreement
18. TERMINATION: In addition to other rights and remedies that Anika may have, Anika may immediately terminate any order of goods or services in the case of breach of any of these terms and conditions by Seller. In such a case, Anika shall have no obligation to receive or provide payment for any goods or services of Seller with respect to such terminated order and any future order (which shall also be deemed terminated) with Seller.
19. CONTROLLING LAW: This order and the performance under it shall be governed by the law of the Commonwealth of Massachusetts and Seller hereby submits to the jurisdiction of the courts of the Commonwealth of Massachusetts for the purpose of resolving any dispute.