Purchase Terms

Southmedic Standard Purchase Terms and Conditions

1. Definitions:

The definitions in the Southmedic MTA apply.

2. Acceptance of Purchase orders:

2.1 Any of the following acts of Supplier shall constitute acceptance of Southmedic   Participating Site’s Purchase order and all of its terms and conditions without modification: Supplier’s delivery of any of the Deliverables; Supplier’s commencement of performance under a Purchase order; or Supplier’s acknowledgement of Southmedic Participating Site’s Purchase order.

2.2 Any terms different from or additional to the terms of Southmedic Participating Site’s Purchase order which may be contained in Supplier’s acknowledgement or Supplier’s other documents are expressly rejected by Southmedic Participating Site unless accepted in writing by an authorized representative of Southmedic Participating Site.  Southmedic Participating Site’s Purchase order is expressly conditional upon acceptance of the terms of the Purchase order unless an authorized representative of Southmedic   Participating Site otherwise agrees in writing.

3. Independent Supplier Relationship

3.1 The relationship of the Supplier to Southmedic Participating Site is that of an independent contractor and nothing herein shall be construed as creating any other relationship.  The Supplier may adopt such arrangements as the Supplier may desire with regard to the details of the Services performed hereunder, the hours during which said Services are to be provided, and the place or places where said services are to be furnished, provided that such details, hours and services shall be consistent with the proper accomplishment of said Services and provided further that said Services shall be performed in a manner calculated to attain the most satisfactory results for Southmedic Participating Site.

3.2 Supplier accepts, in connection with the work called for hereby, exclusive liability for the payment of any taxes or contributions measured by Supplier’s income or levied on Supplier’s property (real or personal).  Supplier also assumes all liability for Social Security, unemployment insurance, annuities or retirement benefits which are measured by wages, salaries or other remuneration’s paid by Supplier to any and all persons employed by it in connection with the performance of the work, and to comply with all valid Federal, Provincial and State administrative regulations respecting the assumption of liability for any of the aforesaid taxes or contributions.  Supplier represents that the Purchase order prices incorporated herein include all such taxes or contributions and agrees to indemnify and hold Southmedic, Southmedic Participating Site and their directors, officers and employees harmless from and against any and all liability for the delay or failure of Supplier and its subcontractors to pay any such taxes or contributions.

3.3 Supplier agrees to take appropriate preventive steps before the assignment of any of its employees to perform work under this Purchase order to ensure that its employees and subcontractor’s employees at any level will not engage in inappropriate conduct while on a Southmedic Participating Site’s premises.  Inappropriate conduct shall include, but not be limited to: being under the influence of, or affected by alcohol, illegal drugs, or controlled substances; the manufacture; use distribution, sale or possession of alcohol, illegal drugs, or controlled substance, the possession of a weapon of any sort; and/or harassment, threats or violent behavior.  Violation of this provision may result in termination of this Purchase order and any other remedy available to Southmedic     Participating Site in law or equity.

3.4 Supplier agrees to provide Southmedic Participating Site any information about Supplier’s personnel that Southmedic Participating Site is required by law to obtain, including information on “leased employees” and “management Services organizations.

4. Delivery, Transit, Quantity:

4.1 Delivery:  Supplier shall furnish the Deliverables called for by a Purchase order in accordance with the delivery schedules stated in Southmedic Participating Site’s Purchase order or under delivery schedules separately provided to Supplier.  Southmedic Participating Site may from time-to-time adjust its delivery schedules, and unless otherwise agreed in writing, such changes in schedule shall not affect the prices of the Deliverables ordered.  Unless otherwise agreed in writing, deliveries shall be F.O.B. destination, and Southmedic Participating Site may defer payment for, or return at Supplier’s expense, any Deliverables delivered more than two weeks in advance of the scheduled delivery date or in excess of the quantity specified for such Deliverables.  Time is of the essence for the performance the Purchase order.

4.2 Notice of Delay:  Whenever an actual or potential reason for delay (including but not limited to labor disputes), delays or threatens to delay the timely performance of a Purchase order, Supplier agrees to immediately notify Southmedic Participating Site in writing of all relevant information and, subject to the force majeure provision set forth herein, to make and pay for all necessary changes to fulfill its obligations under the Purchase order and mitigate the potential impact of any such delay. Southmedic Participating Site has the right to cancel any Deliverables affected by the delay in performance.

4.3 Insurance and Risk of Loss:  Unless otherwise mutually agreed in writing, where Supplier is responsible for delivering Deliverables to a specific location, Supplier shall be responsible for any damage to or loss of Deliverables in transit to the location.  Where Supplier agrees to deliver the Deliverables to a location at Southmedic Participating Site’s risk and Supplier arranges the transport of the Deliverables, unless otherwise agreed in writing, Supplier shall insure the Deliverables for their full value while in transit.

4.4 Packing:  Supplier shall not charge separately for packaging, packing or boxing, unless Southmedic Participating Site has agreed to such charges in writing.  Supplier shall not combine in the same container, material that is to be delivered to different receiving locations.

4.5 Marking:  Unless otherwise agreed in writing, exterior containers shall be marked with the following:  (1) Address of Southmedic Participating Site and Supplier; (2) Purchase order number; (3) Part number; (4) Special markings called for on the Purchase order; (5) Quantity; and (6) (where applicable) Vendor Code or other vendor identification number.

4.6 Bills of Lading:  Bills of Lading shall reference Purchase order number and Southmedic   Participating Site’s receiving address and purchase point of contact.  When Southmedic Participating Site will be the importer of record, Supplier will follow the instructions of Southmedic Participating Site’s import administrator regarding completion of documentation used in the importation process and proper declaration of value. The original copy of the bill of lading with the Supplier’s invoice shall be mailed to the location specified by Southmedic Participating Site’s procurement contact, or if no location is specified by Southmedic Participating Site, to Southmedic Participating Site’s applicable Accounts Payable Department or Accounts Payable service provider.

4.7  Southmedic Participating Site’s Routing Instructions:  On Purchase orders where Southmedic Participating Site either pays for or reimburses Supplier directly for shipping costs, Deliverables shall be shipped in accordance with routing instructions furnished by Southmedic Participating Site.  Supplier shall request a copy of Southmedic   Participating Site’s standard routing instructions if Supplier does not have them.

4.8 Packing Slip:  Unless otherwise agreed between Southmedic Participating Site and Supplier, Supplier shall include an Itemized packing slip with all shipments which will adequately identify the Deliverables shipped, including part number and the applicable Purchase order number.

4.9 Test Reports:  Any Supplier test reports or other test results related to the Deliverables shall be provided to Southmedic Participating Site as set forth in the terms of the Purchase order, or if not specified in the Purchase order terms, upon Southmedic    Participating Site’s request.

4.10 Hazardous Materials:  If the products or materials to be shipped under a Purchase order have been classed as hazardous materials by the Federal, provincial or state government, Supplier warrants that the product shall be packaged, marked, labeled and transported in full compliance with all applicable laws.  Supplier shall hold harmless and indemnify Southmedic Participating Site for Supplier’s failure to comply with the requirements of this provision.

4.11 Customs Clearance:  In case of a non-US Supplier, the Southmedic Participating Site will determine the cost and responsibility for customs clearance (and duty if applicable) on shipments (sale, loaned or consigned material) into its resident country using Supplier furnished documentation, in accordance with International Chamber of Commerce Incoterms.  Supplier’s shipper should contact appropriate Import, Traffic & Customs Department as instructed by the Southmedic Participating Site to arrange a mutually agreeable border crossing point, time and broker, and to discuss customs documentation requirements.

5. Changes:

Southmedic Participating Site (through its authorized purchasing personnel only) shall have the right at any time prior to the delivery date of the Deliverables to make changes (i) in drawings, designs, specifications if the Deliverables are manufactured to Southmedic Participating Site’s drawings, designs and/or specifications; or (ii) in packaging, time or place of delivery, and method of transportation.  If any such changes cause an increase or decrease in the cost or the time required for the performance or otherwise affect any other provision of a Purchase order, an equitable adjustment shall be made and the Purchase order shall be modified in writing accordingly; provided, no equitable adjustment in price will be applicable to changes in delivery schedule where deliveries continue to be scheduled in either the same calendar year or, if not in the same calendar year, within four (4) months of the existing delivery schedule.  Supplier’s claims for an equitable adjustment under this Article shall be deemed waived unless asserted in writing (including the amount of the claim) and delivered to Southmedic Participating Site within thirty (30) days, or other period agreed in writing by Southmedic Participating Site, from the date Supplier receives the change.  Supplier shall provide supporting documentation justifying its claims, and if requested, shall promptly provide additional clarification or support for such claims as reasonably requested by Southmedic Participating Site.

6. Inspection, Rejection:

All Deliverables being manufactured to Southmedic Participating Site’s specifications and/or drawings covered by a Purchase order may be inspected and tested by Southmedic Participating Site or its designee, at all reasonable times and places, including during manufacture. Supplier shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests.

6.1 All inspection records relating to Deliverables covered by the Purchase order and being manufactured to Southmedic Participating Site’s specifications and/or drawings shall be available to Southmedic Participating Site during the performance of the Purchase order and for such longer periods as specified by Southmedic Participating Site.

6.2 If any Deliverables covered by the Purchase order are defective or otherwise not in conformity with the requirements of the Purchase order, Southmedic Participating Site may, (i) rescind the Purchase order as to such Deliverables, and rescind the entire agreement if such defect or non-conformity materially affects Southmedic    Participating Site; (ii) accept such Deliverables at an equitable reduction in price; or (iii) reject such Deliverables and require the delivery of replacements.  Deliveries of replacements shall be accompanied by a written notice specifying that such Deliverables are replacements.  If Supplier fails to deliver required replacements promptly, Southmedic Participating Site may (i) replace, obtain or correct such Deliverables and charge Supplier the cost occasioned Southmedic Participating Site thereby, or (ii) terminate the Purchase order for cause.

6.3 Rejected Deliverables may be returned to Supplier at Supplier’s cost.

7. Indemnification: Supplier shall indemnify, protect, defend and save Southmedic and Southmedic Participating Sites harmless from all suits, claims, loss, damages, injuries, costs or expenses (including attorney’s fees) arising out of, or caused by, Supplier’s performance hereof or any defects in the Deliverables.
8. Infringement Protection, Patents and Copyrights: Supplier shall defend, at its own expense, any suit or claim that may be instituted against Southmedic Participating Site or any customer of Southmedic Participating Site for alleged infringement of patents, copyrights or other intellectual property matters relating to Deliverables furnished pursuant to a Purchase order , except for any such infringement necessarily resulting from compliance with detailed designs provided by Southmedic Participating Site, and Supplier shall indemnify, hold Southmedic    Participating Site and its customers harmless in connection with all suits, claims, liability, loss, damages, costs or expenses arising out of such alleged infringements.

8.1 Southmedic Participating Site shall have the right at no additional charge to use and/or reproduce for its use Supplier’s literature provided to Southmedic Participating Site and related to the Deliverables, such as operating and maintenance manuals, technical publications, prints, drawings, training manuals and other similar supporting documentation and sales literature.  During the period of performance of the Purchase order, Supplier shall supply Southmedic Participating Site with any updated information relative to such literature and documentation.

9. Confidential Information and Competitive Activities:

9.1 “Confidential Information” shall mean any information disclosed to Supplier by Southmedic Participating Site, or, pursuant to the terms of this MTA or a Purchase order, created by Supplier under this MTA or a Purchase order and owned by Southmedic Participating Site, that is (i) marked with a legend indicating its confidential nature, (ii) identified by Southmedic Participating Site in a writing to Supplier within 30 days following disclosure that such information is confidential to Southmedic    Participating Site, or (iii) otherwise specified to be the confidential or proprietary information of Southmedic Participating Site under the express terms of this MTA or a Purchase order. Such information may include, by way of example and not limitation: computer programs and documentation; technical design, manufacturing and application information; customer information, supplier information (including information, such as price information, concerning Southmedic Participating Site’s past, present or future suppliers as well information received by Supplier from its current or future suppliers to meet its obligations under this Purchase order ); training information; financial information; personnel information; new product developments; advertising and business and marketing plans.

9.2 Supplier shall have no obligation of confidentiality with respect to any Confidential Information which:

i) was not developed by Supplier hereunder and was already known to Supplier prior to acquisition from, or disclosure by Southmedic Participating Site; or

ii) is received without restriction as to disclosure by Supplier from a third party having the right to disclose it; or

iii) is approved for purchase order by written authorization of Southmedic   Participating Site; or

iv) is or becomes publicly known without fault of Supplier.

9.3 Supplier shall safeguard and shall neither disclose to any third person nor use for Supplier’s own benefit nor for the benefit of others, Confidential Information however or whenever acquired by Supplier.

9.4 Supplier hereby represents and warrants that Supplier is under no obligation to any other person or company whereby conflicts of interest are or may be created by Supplier entering or performing a Purchase order with Southmedic Participating Site.

9.5 The Supplier shall contractually bind its employees and such other persons or parties as may be used by the Supplier in the performance hereunder to obligations substantially the same as those established under this Provision, and, in the event of a breach of these obligations by such employees, other persons or parties, Supplier shall enforce such contractual provisions and, upon the written request of Southmedic Participating Site, permit Southmedic Participating Site to enforce such contractual provisions in Supplier’s name.

9.6 Upon expiration or termination of the MTA for reason whatsoever, Supplier shall promptly return to Southmedic Participating Site or otherwise dispose of at Southmedic Participating Site’s direction, all Confidential Information.

10. Intellectual Property:

10.1 “Intellectual Property” shall mean all patents, copyrights, mask works, trademarks, Confidential Information and other rights and information of a similar nature worldwide contained in, arising out of, or applicable to, the items required to be delivered (including, but not limited to, any written materials such as reports or memoranda, software code, drawings, schematics, process sheets, evaluations, etc.) to Southmedic    Participating Site or specified to be performed for the benefit of Southmedic   Participating Site (such as improvements to Southmedic Participating Site’s processes, procedures or software) as part of the work hereunder.

10.2 Supplier will promptly disclose in writing to Southmedic Participating Site all Intellectual Property as defined above. To the extent permissible by law, all deliverables and work product specified to be performed for the benefit of Southmedic Participating Site shall be deemed works made for hire for Southmedic Participating Site.  In addition, Supplier, on behalf of itself, its employees and any others used by Supplier, hereby irrevocably assigns to Southmedic Participating Site all right, title and interest to all Intellectual Property, and agrees to do all things reasonable necessary to enable Southmedic     Participating Site to secure patents, copyrights and other rights relating to Intellectual Property, including the execution of a specific assignment of title of any Intellectual Property to Southmedic Participating Site. Supplier, on behalf of itself, its employees and any others used by Supplier, hereby irrevocably waives all “moral rights”, all rights under the Visual Artists Rights Act, all rights of privacy and publicity, and the like, in all materials provided to Southmedic Participating Site.

10.3 In addition to the rights in Intellectual Property described in Paragraphs a and b above, Supplier, on behalf of itself, its employees and any others used by Supplier, hereby grants to Southmedic Participating Site worldwide, non-exclusive, perpetual, fully-paid, irrevocable, transferable licenses (with rights to grant sublicenses to make, copy, distribute, display, perform, adapt and use, in any and all media), in any information other than Intellectual Property provided to Southmedic Participating Site under this agreement.

10.4 Supplier hereby represents and warrants to Southmedic Participating Site that all materials, devices and other information used by Supplier in performing the Services are lawfully and properly used by Supplier.

10.5 Supplier shall hold Southmedic Participating Site harmless from and against all damages, liabilities and costs in connection with any claim that the exercise of any right(s) assigned/granted under this provision, infringes or violates any patent, copyright, trade secret or other intellectual property right or other right worldwide, provided that Southmedic Participating Site: (i) gives Supplier notice of such claim, (ii) permits Supplier to defend or reasonably settle same, and (iii) gives Supplier all reasonable assistance to enable Supplier to do so.

10.6 Supplier shall contractually bind its employees and such other persons or parties as may be used by the Supplier in the performance of Services hereunder to obligations substantially the same as those established under this provision, and, in the event of a breach of these obligations by such employees, other persons or parties, Supplier shall enforce such contractual provisions and, upon the written request of Southmedic  Participating Site, permit Southmedic Participating Site to enforce such contractual provisions in Supplier’s name.

11. Publicity:

Supplier shall not make or authorize any news purchase order, advertisement, or other disclosure which shall deny or confirm the existence of a Purchase order or which shall make use of Southmedic Participating Site’s name without the prior written consent of Southmedic Participating Site, except as may be reasonably required to perform the Purchase order.

12. Southmedic Participating Site Furnished Material:

Should Southmedic Participating Site furnish to Supplier any material (including, but not limited to, raw materials, samples, tools, dies, jigs, gauges, fixtures, patterns, molds, testing apparatuses, machinery, equipment and the like), such material shall remain the property of Southmedic Participating Site, subject to repossession, or possession, by Southmedic Participating Site any time.  Supplier shall be liable for risk of loss of such material while in Supplier’s possession and shall deliver same to Southmedic Participating Site in the same condition as received by Supplier, reasonable wear and tear excepted. When Southmedic Participating Site furnishes any raw material for the manufacture of Deliverables, Supplier shall not substitute raw material from any other source nor shall Supplier alter the physical or chemical properties of the Southmedic Participating Site furnished raw material except with Southmedic Participating Site’s written approval.

13. Termination for Convenience:

13.1 Southmedic Participating Site may terminate, for its convenience, all or any part of a Purchase order at any time by written notice to Supplier. Southmedic Participating Site’s sole obligation will be to pay for those Deliverables satisfactorily delivered or performed through the date of termination in accordance with the then current schedule at the time of the termination notice and for any cancellation charges that are specified in this MTA to be made.  Supplier shall submit any claim for any such defined cancellation charges within sixty (60) days following the termination and provide reasonably complete documentation supporting such claim.  Supplier shall promptly submit any additional information reasonably requested by Southmedic Participating Site related to Supplier’s termination claim. In no event shall cancellation charges exceed the total Purchase order price (as reduced by any payments previously made to Supplier), nor shall such charges include profit on terminated Deliverables.  If part of the defined cancellation charges involve value of such items, Supplier shall make good faith, diligent efforts to apply terminated raw materials, work-in-process, or completed Deliverables that Supplier does not wish to receive to other customers of Supplier.

13.2 Termination of Quantities under Purchase orders.  In the event a Southmedic    Participating Site terminates for its convenience any quantities under a Purchase order, the Participating Site’s termination liability to Supplier shall be limited as follows:

Except as otherwise agreed in writing, termination costs shall be limited to (i) the cost of Deliverables that are (or were) required to be delivered pursuant to Purchase orders within the “Lead Time Period” as defined below, and (ii) such charges that are allowed under Section 13.1 above. The “Lead Time Period” for each terminated Deliverable will be that period having a commencement date as of the date of Supplier’s receipt of the Southmedic Participating Site’s termination notice, and an end date as of the applicable lead time forward, from such commencement date.

14. Waiver:

The failure of Southmedic Participating Site to insist upon the performance of any provision of a Purchase order shall not be construed as waiving any such provision or any other provision.

15. Representations, Warranties, Agreements and Covenants:

Supplier represents, warrants, covenants and agrees that:

The Supplier and any others used by the Supplier in the performance of Purchase order s will comply with Southmedic ’s “Code of Ethics”

15.1 and shall not, directly or indirectly, wrongfully solicit, obtain or use on behalf of Southmedic Participating Sites, or wrongfully disclose to Southmedic Participating Sites, any information of any other person, association, firm, corporation, government or other entity, including information which is a trade secret, confidential, proprietary, government security classified, or government procurement sensitive (including documents identified prior to the award of a government contract as source selection information and any other information which offers or may offer Southmedic     Participating Sites an illegal or unfair competitive advantage); and, unless otherwise specifically identified in writing at the time of disclosure, all information disclosed to Southmedic Participating Sites by the Supplier and any others used by the Supplier in the performance of Services hereunder may be used or disclosed by Southmedic     Participating Sites without restriction;

15.2 None of the provisions of a Purchase order, nor the services performed thereunder by the Supplier and any others used by the Supplier, contravenes or is in conflict with any law, judgment, decree, order or regulation of any governmental authority, or with any contract or agreement with, or any obligations owed to, any other person, association, firm, corporation, government or other entity to which the Supplier or any such others used by the Supplier are subject, including without limiting the generality of the foregoing, employment agreements, consulting agreements, disclosure agreements  or agreements for the assignment of inventions;

15.3 No entertainment, gift, gratuity, money, or anything of value shall be paid, offered, given or promised by the Supplier or by any others used by the Supplier in the performance of services hereunder to, or be obtained or solicited by the Supplier or by any such others from, directly or indirectly, any person, association, firm, corporation, government or other entity that is prohibited by Southmedic ‘s Code of Ethics, by applicable law or regulation, by the policies of that association, firm, corporation, government or other entity, or by Southmedic’s Policy Statement on Business Ethics and Conduct.

15.4 If the services comprise consulting, lobbying, marketing, or will be directly charged to a Government contract or subcontract, and if the Supplier (or any others used by the Supplier in the performance of Services hereunder) is expected to or may engage in services considered to be within the definitions of a “Government Marketing Consultant”, “Lobbyist”, or “current or former employee of, or consultant to, the Government,” as such terms are defined in pertinent laws and regulations, the Supplier agrees to notify the applicable Southmedic Participating Site immediately in writing;

15.5 The Supplier shall avoid and refrain from all activities on behalf of Southmedic Participating Sites that could be interpreted as creating conflicts of interest or the appearance of a conflict for Southmedic Participating Site or the Supplier.  The Supplier is familiar with and shall continue to be familiar with conflicts of interest laws and regulations and shall provide such written certifications under such laws and regulations as Southmedic Participating Sites may reasonably request.  Failure to promptly and accurately complete certifications shall be grounds for Southmedic Participating Site’s immediate termination of this Purchase order, without liability to Southmedic Participating Site.  The Supplier agrees to promptly notify the applicable Southmedic  Participating Site if the Supplier at any time has information or reason to believe that the performance of services hereunder would violate any such laws or regulation or would create such a conflict of interest, or the appearance of a such a conflict;

15.6  Neither the Supplier nor, where applicable, any others used by the Supplier in the performance of services hereunder, has been convicted of a felony or has been debarred or suspended from doing business with any and all Government agencies or declared ineligible by the any and all Government agencies to perform Services for or on behalf of Southmedic Participating Site, or is presently the subject of any such action;

15.7 Prior to the effective date hereof and throughout the term of this Purchase order, the Supplier shall promptly notify the applicable Southmedic Participating Sites in writing of any action, change or development which would make any representation, warranty, covenant or Purchase order in or furnished under or as a part of this Purchase order untrue, inaccurate or incomplete in any respect.

15.8 If this Purchase order supports Southmedic Participating Site’s performance of a contract or subcontract with a Government or Prime Contract then the Supplier and any other persons used by the Supplier in the performance of services hereunder shall not contact, directly or indirectly, (i) any officer, employee, principal or agent of the Government (including any elected member of the legislative branch of the Government or their staff) or, (ii) any customer, competitor, prime Supplier, subcontractor, vendor or supplier of Southmedic Participating Site, if such contact relates to a current or prospective government procurement; unless the Supplier is specifically authorized to make such a contact under the terms of this Purchase order or the Supplier receives the prior written approval of the applicable Southmedic Participating Site to make such a contact; in any and all such instances the Supplier and any such others used by the Supplier shall comply with all applicable laws and regulations.

16. Permits and Licenses:

Except for permits and/or licenses required by statute or regulation to be obtained by Southmedic Participating Site, Supplier agrees to obtain and maintain – at its own expense – all permits, licenses and other forms of documentation required by Supplier in order to comply with all existing laws, ordinances, and regulations of the Southmedic Participating Site Federal, Provincial, State, county, township, or municipal subdivision thereof, or other governmental agency, which may be applicable to Supplier’s performance of work hereunder.  Southmedic Participating Site reserves the right to review and approve all applications, permits, and licenses prior to the commencement of any work hereunder.

17. Remedies Cumulative: The remedies of Southmedic and the Southmedic Participating Site’s shall be cumulative, and remedies herein specified do not exclude any remedies allowed by law. Waiver of any breach shall not constitute waiver of any other breach of the same or any other provision. Acceptance of any Deliverables or payment therefore shall not waive any breach.
18. Insurance:

18.1 Without limiting Supplier’s duty to defend, hold harmless and indemnify hereunder, Supplier agrees to secure and carry as a minimum during the entire term of this MTA and any Purchase order, the following insurance:

i) Workers’ Compensation Insurance, inclusive of an alternate employer endorsement, in an amount sufficient by virtue of the laws of the foreign country, state, or other governmental subdivision in which the work or any portion of the work is performed and Employer’s Liability Insurance in the amount of $1,000,000 for any one occurrence;

ii) General Liability Insurance including Premises and Contractual Liability, in which the limit of liability for property damage and bodily injuries, including accidental death, shall be at a minimum, a Combined Single Limit of $5,000,000 for any one occurrence.

iii)  If Supplier vehicles are used on Southmedic or Southmedic Participating Site’s premises and/or used to accomplish work under this MTA or a Purchase order or otherwise on behalf of a Southmedic Participating Site, Automobile Liability Insurance in which the limit of liability for property damage and bodily injuries, including accidental death, shall be a combined single limit of $2,000,000 for any one occurrence.

iv) If Supplier or its subcontractors have Southmedic Participating Site’s materials or equipment in its care, custody or control, Supplier shall maintain All Risk Property Insurance in an amount sufficient to meet or exceed the replacement value of such material.

vii) If Supplier is performing professional services on behalf of Southmedic    Participating Site, Supplier shall maintain Professional Liability Insurance with a limit of not less than $5,000,000; and

18.2 All such insurance shall be issued by companies authorized to do business under the laws of the Province in which all or part of the Services are to be performed.

18.3 The insurance coverages described above shall be in form satisfactory to Southmedic and shall contain a provision prohibiting cancellation except upon at least ten (10) days’ prior notice to Southmedic.  All such insurance policies will be primary in the event of a loss arising out of the Supplier’s performance of work and shall provide that where there is more than one insured the policy will operate, except for the limits of liability, as if there were a separate policy covering each insured and shall operate without right of contribution from any other insurance carrier by Southmedic or Southmedic Participating Sites.  Certified copies of said policies or certificates evidencing such insurance and endorsements naming Southmedic and the Southmedic Participating Sites as an additional insured or, in the case of All Risk Property Insurance, naming Southmedic and Southmedic Participating Sites as a loss payee, shall be filed with Southmedic upon execution of this MTA and before commencement of any work hereunder, and within a reasonable time after any renewals or changes to such policies are issued.  To the extent permitted by law, Supplier and its insurer(s) agree that subrogation rights against Southmedic and Southmedic Participating Sites are hereby waived.  Supplier shall reflect such waiver in any policy(s) required under this MTA and shall advise the amount of available policy limits as of execution of this MTA and shall identify the amounts of any self-insured retention.

18.4 The certificate of insurance shall identify the contract number or work to be performed and shall acknowledge that such coverage applies to liabilities incurred by supplier, its employees, invitees or agents under the MTA and that such insurance shall not be invalidated by any act or neglect of the supplier whether or not such act or neglect is a breach or violation of any warranty, declarations or conditions of the policies.

18.5 Supplier agrees to insert the applicable substance of this provision in all subcontracts entered by Supplier to support work performed under a Purchase order to this MTA.

19. Toxic, Hazardous or Carcinogenic Substances:

Supplier warrants that each chemical substance delivered under Purchase order s is not on the Inventory List (see 40 C.F.R. § 710) published by the Environmental Protection Agency pursuant to the Toxic Substances Control Act (15 U.S.C . § 2601 et seq.) at the time of such delivery.  If Supplier provides a product under the Purchase order which contains a toxic or hazardous substance as identified under Occupational Safety and Health Standards, 29 C.F.R. § 1910.20 or 29 C.F.R. § 1910.1000 et. seq. (Subpart Z), or a carcinogenic substance, Supplier shall provide Southmedic Participating Site with a Material Safety Data Sheet (meeting the requirements of 29 C.F.R. § 1910.1200(g) and the latest revision of Federal Standard No 313), and any other information required by any applicable law with the initial shipment of the product and when a change in formulation occurs.  Supplier shall label each container or such products in a clearly legible and conspicuous form, stating that a toxic or hazardous substance is contained therein, and providing Southmedic Participating Site with a copy of any restrictions on handling or use.

20. Clean Air Act:

Supplier agrees that the Deliverables delivered hereunder shall be accurately labeled in accordance with the requirements of the Clean Air Act and the regulations promulgated thereunder, including but not limited to requirements contained in 40 C.F.R. §§ 82.114 and 82.116.  At Southmedic Participating Site’s request, Supplier shall certify in a form satisfactory to Southmedic Participating Site whether the Deliverables were manufactured with a controlled substance, as defined in 40 C.F.R. § 82.104.

21. Computer Access:

21.1 Supplier agrees that Southmedic Participating Site shall have sole discretion as to whether Supplier is granted access to Southmedic Participating Site’s computer-based information systems and agrees that any access privileges granted to Supplier will be defined by Southmedic Participating Site.

21.2 Supplier shall ensure that access privileges identified by Southmedic Participating Site are limited to Supplier’s employees approved by Southmedic Participating Site, and shall ensure that such access privileges are not assigned or provided to any other employees or persons.

21.3 Supplier warrants that Supplier’s employees shall limit their access to computer-based information systems, databases, and/or files containing data and/or information related to subject areas approved by Southmedic Participating Site, and shall not access, nor attempt to access, computer-based information systems, databases, and/or files containing data and/or information that are not related to such identified subject areas.  Supplier warrants that such access shall not be used to analyze, copy (including printed copies), merge, modify, reverse compile, or reverse engineer any software, data and/or information residing in, or associated with, any of Southmedic Participating Site’s computer-based information systems.  Supplier warrants that Supplier’s employees shall only use accessed data and/or information for the sole purpose of performing under this Purchase order or any Purchase order.

21.4 In the event that Southmedic Participating Site provides written authorization to Supplier to analyze, copy (including printed copies), merge, modify, reverse, compile, or reverse engineer any software, data and/or information residing in, or associated with, any of Southmedic Participating Site’s computer-based information systems, Supplier shall mark all electronic and printed copies or extracts of any portion of such software, data, and/or information.

21.5 Supplier shall promptly notify Southmedic Participating Site whenever the need to access Southmedic Participating Site’s computer-based information systems ceases for any of Supplier’s employees having access to Southmedic Participating Site’s computer-based information systems. The need to access Southmedic Participating Site’s computer-based information systems shall automatically cease for employees terminated, transferred, or no longer employed by Supplier.

21.6 Supplier agrees that Southmedic Participating Site shall have the right, without notice, to terminate access by Supplier or any of Supplier’s employees to any portion of Southmedic Participating Site’s computer-based information systems.  Upon Southmedic Participating Site’s request, Supplier shall return to Southmedic Participating Site all passwords, identification cards, and/or other means of access to Southmedic Participating Site’s information systems.

22. Default:

22.1 Southmedic and Southmedic Participating Sites may, under each of the following circumstances, by written notice terminate this MTA and/or any Purchase order issued hereunder in whole or in part for default without having any liability to Supplier:

i) If Supplier fails to deliver any of the Deliverables as required under existing Purchase orders within the time specified therein, and such failures are not excused under the Purchase order terms, or Supplier fails to deliver any of the Deliverables as required under existing Purchase order s that conform to the Purchase order  quality requirements; or

ii) If, without being excused, Supplier fails to perform any material provisions of Purchase orders, or Supplier fails to make progress so as to materially endanger performance under this MTA, and Supplier fails to make substantial and good faith steps to cure such failure to Southmedic’s reasonable satisfaction within a period of thirty (30) days after receipt of notice from specifying such failure; or

iii) If Supplier shall consent to the appointment of a receiver, trustee, liquidator, assignee, custodian, sequestrator or similar official of itself or of all or a substantial part of its property, or Supplier shall admit in writing its inability to pay its debts generally as they come due, or shall make a general assignment for the benefit of creditors; or

iv) If Supplier shall file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization in a case under any chapter of a Federal Bankruptcy Code or an answer admitting the material allegations of a petition filed against Supplier in any such case, or an order for relief shall be entered against Supplier in any such case, or Supplier shall by voluntary petition, answer or consent, seek relief under the provisions of any other now existing or future bankruptcy or other similar law providing for the reorganization or winding-up of Supplier’s business, or providing for an agreement, composition, extension or adjustment with its creditors; or

v) If an order, judgment or decree shall be entered in any proceeding by any court appointing, without the consent of Supplier, a receiver, trustee, liquidator, assignee, sequestrator or similar official of Supplier or of all or any substantial part of its property, or sequestering all or any substantial part of the property of Supplier, any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, unstayed or unvacated for a period of ten (10) days after the date of entry, thereof; or

vi) If any petition against Supplier in a case under any chapter of the Federal Bankruptcy Code (or in the case of a non-U.S. Supplier, the applicable foreign bankruptcy law) or any other bankruptcy or insolvency laws as now or hereafter in effect shall be filled and shall not be withdrawn or dismissed within ten (10) days thereafter.

22.2 The parties agree that the provisions of this Default Article shall not apply to failures or delays in making deliveries of Deliverables when such failure or delay is due to any cause beyond the control and without the fault or negligence of Supplier and Supplier’s subcontractors as provided in the force majeure; provided, however, Southmedic   Participating Site may cancel without liability to Supplier its purchase of any such items.

22.3 Supplier will be responsible for a Southmedic Participating Site’s reasonable excess procurement costs if the Southmedic Participating Site temporarily procures Deliverables from another supplier in order to meet its delivery requirements because of the failure of Supplier to meet the Participating Site’s delivery schedules or quality requirements, and such failure was not excused under the terms of this MTA or the Participating Site’s Purchase order.

22.4 In the event of a default under this Article, and without prejudice to any other rights or remedies which the Participating Site may have at law, Supplier shall continue to be responsible for the performance of any Purchase order which is not cancelled, and such Purchase order shall remain subject to the provisions of this MTA.

22.5 A Southmedic Participating Site shall have no obligation to accept or pay for Deliverables under any cancelled Purchase order other than Deliverables delivered in accordance with such Purchase order prior to cancellation except as otherwise specified in writing by the Participating Site.

22.6 Upon termination of all a Southmedic Participating Site’s Purchase order s under this Article, Supplier shall promptly return to the Southmedic Participating Site, or otherwise dispose of at a Participating Site’s direction, all Participating Site drawings, specifica¬tions, information, tooling, raw materials and equipment in the possession of Supplier (except for such items required for any Purchase order s not terminated).

23. Assignment:

Neither this MTA nor any interest hereunder shall be assignable by either party unless such assignment is mutually agreed to in writing by the parties hereto; provided, however, that Southmedic may assign this MTA to any corporation with which Southmedic may merge or consolidate or to which Southmedic may assign substantially all of its assets or that portion of its business to which this MTA pertains or to any third party provider of “integrated services” who will purchase the Deliverables for Southmedic’s benefit without obtaining the agreement of the Supplier.

24. Partial Invalidity: If in any instance any provision of this MTA shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms.
25. Force Majeure: Neither Southmedic, Supplier nor any Southmedic Participating Site shall be liable for damages for any failure or delay in the performance of this MTA or any Purchase order resulting from causes beyond its and its subcontractors (if any) reasonable control including, but not limited to, unforeseeable events such as acts of God, acts of Government, war, court order, riots, natural disasters, labor strikes, and lockouts. Southmedic Participating Site may cancel without liability to Supplier its purchase of any Deliverables affected by Supplier’s failure or delay in performance.  The party incurring the delay shall give timely notice to the others of any such event and shall use all reasonable efforts to avoid or remove the cause and resume performance with minimum delay. The parties shall jointly prepare a contingency plan to address the potential impact of any such event.
26. Compliance with Laws:
    i) With regard to any work that may be controlled by export regulations, Supplier agrees to comply with all existing export laws and regulations and executive to any foreign jurisdictions which may be applicable to Supplier’s performance of the Services hereunder, which may include the necessity of obtaining export licenses covering access to export controlled information.
    ii) Supplier further agrees to execute any certificate reasonably required by a Southmedic Participating Site within the scope of Services hereunder if such certificate is required pursuant to federal, state, or local laws or regulations.
    iv) Supplier agrees to comply with all applicable federal, state, and local laws pertinent to performance of this MTA, and further agrees to include the substance of this provision in all subcontracts entered by Supplier.
27. Audit: Supplier agrees to keep for a period of three (3) years after the expiration or termination of each Purchase order complete and accurate records of all services performed and all amounts invoiced and received under such Purchase order  based on cost reimbursement or time and material. SOUTHMEDIC Participating Site or an authorized representative of SOUTHMEDIC Participating Site shall have the right to audit such records.