Fillable Printable Standard Purchase Terms and Conditions

Standard Purchase Terms and Conditions

Date Last Modified: December 23, 2004

(Version 1.21)

PURCHASE ORDER TERMS & CONDITI ONS

Welcome to the web site (the "Site") hosted by Johnson & Johnson Services, Inc. Thank

you for reviewing the purchase order (the "PO") that has been transmitted (via facsimile,

e-mail or other electronic means) to you ("Supplier") by Johnson & Johnson Services,

Inc. or one of its affiliates identified in the PO ("Buyer"). The terms and conditions

detailed herein are applicable to the PO issued by Buyer and by accepting the PO you

agree that you have read, understand, and agree to be bound by these terms and

conditions.

You should not bookmark this page because these terms and conditions are specific to the

PO and may hereafter be revised, from time to time, by Buyer. If revised, the revised

terms and conditions will be posted on the Site and will thereafter be immediately

effective for purchase orders issued thereafter. Please re-read the terms and conditions

referenced in each subsequently issued purchase order that you receive because by

accepting such purchase order after a revised version of the terms and conditions

has been posted you will be deemed to have accepted the revised version.

Any communications transmitted electronically (e.g., via facsimile or via the Internet

(including but not limited to EDI, cXML, e-mail)) (i) shall be considered a "writing" or

"in writing," (ii) shall be deemed "signed" if a signature is affixed that is valid in

accordance with applicable law (including a valid electronic signature) and (iii) will

constitute an "original" when printed. Communications introduced as evidence on paper

will be admissible to the same extent and under the same conditions as other business

records originated and maintained in documentary form and admissibility shall not be

contested on the basis that the communication was not originated or maintained in

documentary form.

1. Notices. All communications from Supplier to Buyer relating to the PO and these

terms and conditions shall be addressed to the Buyer’s representative identified on the

PO.

2. Supplier Responsibilities. Supplier shall use commercially reasonable efforts (i)

to provide to Buyer the goods and services ordered in accordance with the terms

stipulated in the PO and the applicable, if any, supply, service or other agreement

pursuant to which the PO was issued; (ii) to keep Buyer advised of the status of the

PO; (iii) to permit duly authorized representatives of Buyer to review and observe,

from time to time upon reasonable notice, the delivery of the goods and services; (iv)

to provide Buyer with such reports as are appropriate to the nature of the goods and

services ordered and as may be reasonably requested by Buyer from time to time; and

(v) to keep, for orders requiring payment based on hours worked, cost of materials

used and/or expenses incurred, records of hours worked, cost of materials used, and

reasonable out-of-pocket expenses incurred in filling the PO, which records Buyer’s

duly authorized representatives may examine from time to time upon reasonable

notice.

3. Acknowledgment. The shipment of any goods or the furnishing of any services

(or delivery of any deliverable arising therefrom), shall constitute acceptance by

Supplier of the PO and each and all of the terms and conditions stated herein. If

Supplier objects to any of the terms and conditions hereof, it shall notify Buyer in

writing within ten days after issuance of the PO and withhold acceptance of the PO

until such objection is settled by written agreement.

4. Inspection. All goods and deliverables are subject to final review, inspection and

acceptance by Buyer notwithstanding any payment or initial inspection. Final

inspection will be made by Buyer within a reasonable time after receipt of goods or

deliverables.

5. Rejections/Returns. Buyer reserves the right to refuse any goods or deliverables

and to cancel all or any part of a PO for goods or deliverables not conforming to

applicable specifications, drawings, samples or descriptions. Acceptance of any part

of the PO shall not bind Buyer to accept future shipments of non-conforming goods

or deliverables, nor deprive it of the right to return non-conforming goods or

deliverables already accepted. Goods and deliverables, if rejected, may be returned to

Supplier at Supplier’s expense for transportation both ways, and no replacement or

substitution shall be made unless so authorized by Buyer.

6. Cancellation on Lateness. The delivery of goods, services and deliverables shall

strictly comply with the delivery date or delivery schedule, if any, specified by Buyer.

If at any time it appears Supplier will not meet such delivery date or schedule,

Supplier shall promptly notify Buyer in writing of reasons for, and the estimated

duration of, the delay. If requested by Buyer, Supplier will ship delayed goods by

means to avoid or minimize delay to the maximum extent possible, the added cost to

be borne by Supplier. Buyer may exercise its other remedies, such as cancellation of

the PO after 30 days for non-compliance, cover and incidental and consequential

damages.

7. Invoice. Unless otherwise specified by Buyer, a separate invoice shall be issued

for each shipment and only after the goods are shipped or services and deliverables

delivered. No payment will be made prior to receipt of goods, services or deliverables

and current invoice (if such invoice is required by Buyer). Payment due dates,

including discount periods, will be computed from date of invoice to date Buyer’s

check is mailed (or payment is otherwise transmitted by Buyer). Any discount taken

by Buyer will be taken on full amount of invoice; however, if Seller has been

approved to participate in Buyer’s "Pay on Receipt" process, any discount taken by

Buyer will be taken on the purchase order value of the goods received.

8. Payments. Unless otherwise specified by Buyer, payment terms will be net 45

days. Buyer may withhold payment of any amounts to be paid to Supplier which are

disputed in good faith by Buyer.

9. Warranty. In accepting this PO, Supplier unconditionally represents and

warrants, any other representation or agreement to the contrary notwithstanding, that

the goods and deliverables supplied pursuant to this PO are of merchantable quality,

conform to the specifications as stated on the PO and as otherwise provided by Buyer

and are suitable for Buyer’s intended uses and purposes in the ordinary course of its

business. All warranties herein stated shall run to Buyer, its customers and the users

of the goods or deliverables or products into which such goods or deliverables may be

incorporated.

If this PO is for services then by in accepting this PO, Supplier also unconditionally

represents and warrants, any other representation or agreement to the contrary

notwithstanding that: (i) its performance of the services and the deliverables arising

therefrom, or any portion or function thereof, or the use of the deliverables or any

portion thereof, will not violate or infringe any third-party patent, trademark,

personnel reasonably skilled and trained in the performance of the services and in a

workmanlike and professional manner in accordance with general industry standards;

(iii) it is currently under no obligation to any third party, nor will it enter into any

obligation to a third party, that could interfere with its rendering to Buyer the services

or deliverables; (iv) any documentation provided to Buyer shall meet reasonable

standards of clarity and detail; and (v) all deliverables will be warranted to perform

according to their specifications.

10. Indemnification. Supplier agrees to indemnify and hold harmless Buyer, its

affiliates (and its and their respective directors, employees and agents) from any

losses, liabilities, damages and expenses (including without limitation reasonable

counsel fees) arising, directly or indirectly, from: (i) Supplier’s breach of any

provision hereof, including without limitation the confidentiality obligations and the

warranties made herein; (ii) any negligent or wrongful act or omission of Supplier, its

employees, consultants or subcontractors; (iii) Supplier’s failure to comply with

applicable laws and regulations in filling the PO; (iv) any claim charging that Buyer’s

purchase of goods, services or deliverables under the PO constitutes misappropriation

of trade secrets, breach of a confidential relationship, or trademark, trade secret or

acquired under the PO, or the use of such goods or deliverables, infringe a third-

party’s patent anywhere in the world. If the goods or deliverables, or the use of such

goods or deliverables, are held to constitute an infringement and their sale or use is

enjoined, Supplier shall, at its expense and option, either procure for Buyer and its

affiliates the right to continue to use such goods or deliverables, or replace same with

an equivalent non-infringing product, or modify same so it becomes an equivalent

non-infringing product. This Section will not be construed to limit or exclude any

other claims or remedies that Buyer or its affiliates (and its and their respective

directors, employees and agents) may assert.

11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BUYER OR

ITS AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL,

PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER

FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF SUPPLIER

OR ANY OTHER PARTY ARISING OUT OF BREACH OR FAILURE OF

EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,

MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT,

FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR

OTHERWISE. NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT OR

OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE

BROUGHT, IN NO EVENT WILL BUYER OR ITS AFFILIATES BE LIABLE

FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE

GREATER OF (i) THE AMOUNT OF FEES PAYED BY BUYER FOR THE

GOODS OR SERVICES THAT GAVE RISE TO SUCH DAMAGES OR LOSSES

FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES OR

(ii) $1000. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE

EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY

DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION.

12. Insurance. Supplier shall, at its own expense, maintain with a reputable insurer

(and provide written certificate(s) of insurance to Buyer if and when requested) for a

period of at least 2 years after the fulfillment of the PO reasonable and customary

insurance coverage, including, but not limited to, (i) worker’s compensation statutory

coverage as required by the laws of the applicable jurisdiction, and (ii) commercial

general liability insurance including coverage for product liability in the minimum

amount of $5 million in respect of claims for any losses, costs and expenses arising

out of or relating to Supplier furnishing the goods, deliverables and/or services under

the PO. The certificate(s) of insurance will, if requested by Buyer, designate Buyer as

"additional insured" under the commercial general liability policy and will include

the agreement for the insurer to give Buyer written notice at least 30 days prior to the

effective date of any cancellation, lapse or material change in the policy, and will

contain a waiver of subrogation in favor of Buyer.

13. Copyrights; Rights to Inventions. Buyer will be the exclusive owner of all

deliverables created by Supplier in connection with or during the performance of

services provided pursuant to a PO, any works based on or derived from such

deliverables ("Derivatives"), and any ideas, concepts, inventions or techniques that

Supplier may conceive or first reduce to practice in connection with developing the

Deliverables ("Deliverable Concepts") (the deliverables, Derivatives, and Deliverable

Concepts are collectively referred to as, "Buyer Materials") and all intellectual

property rights therein, including patents, copyrights, trade secrets, trademarks, moral

rights, and similar rights of any type under the laws of any governmental authority

(collectively, "Intellectual Property Rights"). All copyrightable Buyer Materials shall

be prepared by Supplier as a "work made for hire" for Buyer, and Buyer shall be

considered the author of the Buyer Materials for purposes of copyright. To the extent

that the Buyer does not acquire ownership of such copyrights as a work made for hire,

and with respect to all other rights, Supplier hereby assigns and agrees to assign upon

creation to Buyer all right, title and interest in and to the Buyer Materials and all

Intellectual Property Rights therein. To the extent such assignment of rights and

ownership is invalid or any of the foregoing rights, including so-called "moral rights"

or rights of "droit moral," may be inalienable, Supplier agrees to waive and agrees not

to exercise such rights, and if such waiver and agreement are deemed invalid, to grant

to Buyer and its designees the exclusive, transferable, perpetual, irrevocable,

worldwide and royalty free right to make, use, market, modify, distribute, transmit,

copy, sell, practice, and offer for sale and import the Buyer Materials and any

process, technology, software, article, equipment, system, unit, product or component

part covered by the Deliverable Concepts or a claim of any patent in any part of the

Deliverable Concepts. At Buyer’s request, Supplier will obtain the execution of any

instrument, including from any employee or contractor, that may be appropriate to

assign these rights under this paragraph to Buyer or perfect these rights in Buyer’s

name. Supplier agrees that any copyrightable material prepared for Buyer shall carry

on the face thereof in legible form a copyright notice identifying Buyer and the year

of publication.

14. Government Contracting. Supplier in accepting the PO represents that the price

charged is not in excess of the ceiling prices, if any, established by any government

agency. If Supplier is notified that the services or goods covered by the PO are

ordered by Buyer under a United States government contract, Supplier agrees that

federal statutes and regulations applicable to Buyer as a government contractor are

accepted and binding on Supplier insofar as required by statute, regulation or the

provisions of the government contract.

15. Force Majeure. Supplier and Buyer, as the case may be, shall be excused for

delays in performance or failure of performance to the extent arising from causes

beyond such party’s reasonable control, including without limitation strikes, wars,

fires, floods, earthquakes, acts of terror or other acts of God. In the event of any such

event or condition, the party whose performance is excused hereunder shall notify the

other promptly thereof and shall make diligent efforts to perform at its earliest

opportunity and the other party shall be permitted to suspend its performance under

the PO. If Supplier’s performance is excused hereunder, Buyer shall have the right,

and Supplier agrees to provide to Buyer the assistance and information necessary for

Buyer, to make, have made, or otherwise procure replacement goods and services.

16. Shipping Terms. Unless otherwise specified by Buyer, delivery of goods is to be

F.O.B. Buyer’s plant. If goods are to be shipped F.O.B. shipping point, and Buyer has

not designated routing, Supplier is required to ship via the most economical method

that will meet delivery date. Supplier shall provide a packing list to Buyer for all

shipments referencing the appropriate order number. Bills of lading, if any, shall also

reference the appropriate order number.

17. Transportation Liability. Supplier agrees that in any case where freight

regulations covering goods transported by common carrier establish a maximum limit

on the carrier’s liability for loss or damage suffered in transit, Supplier will be liable

to Buyer for any loss or damage in excess of such maximum limit up to the full price

of the goods.

18. Confidentiality; No Publicity. Supplier shall keep in confidence and shall not,

without securing the prior written consent of Buyer, originate any publicity (including

any news release or public announcement) or disclose to any third party information

relating to: the existence of the relationship with Buyer; Buyer’s purchasing systems

or practices (including, without limitation, descriptions of purchased items, quantities

purchased and prices paid); the nature of the services performed and deliverables and

goods delivered under the PO; and any proprietary or confidential data, designs, or

other information supplied by, or on behalf of, Buyer. Notwithstanding the foregoing,

Supplier may disclose such confidential information (i) to Supplier’s employees

having a need to know such information to process the PO or improve the services

provided by Supplier to Buyer or (ii) to comply with applicable laws, court orders, or

government regulations. If disclosure is permitted under clause (ii) above, Supplier

shall consult with Buyer in connection with any publicity in a reasonable time prior to

its release to allow Buyer to comment thereon, and to prevent its release if so

permitted by law. Supplier agrees that it will take appropriate action by instruction,

agreement, or otherwise with its employees and subcontractors who are permitted

access to the aforementioned information to notify them of Supplier’s obligations

hereunder. Upon Buyer’s request any data, designs, or other information furnished to

Supplier (and copies thereof) shall be returned to Buyer.

19. Buyer’s Property. All tools, equipment and materials of every description

furnished to Supplier by, or specifically paid for by, Buyer, and any replacement

thereof, and any materials affixed or attached thereto, shall be and remain the

personal property of Buyer, and shall be safely stored separate and apart from

Supplier’s property. Supplier shall not substitute any property for Buyer’s property

and shall not use such property except in filling Buyer’s purchase orders. Such

property while in Supplier’s custody or control shall be held at Supplier’s risk, shall

be kept insured by Supplier at Supplier’s expense in an amount equal to the

replacement cost with loss payable to Buyer and shall be subject to removal at

Buyer’s written request, in which event Supplier shall prepare such property for

shipment and shall redeliver to Buyer in the same condition as originally received by

Supplier, reasonable wear and tear excepted.

20. Material Safety Data Sheets. An appropriate material safety data sheet

("MSDS") and labeling, as and if required by law, will precede or accompany each

shipment of Supplier. Further, Supplier shall send to Buyer updated MSDS’s and

labeling as required by law.

21. Environmental, Safety and Industrial Hygiene Matters. Supplier agrees to use

commercially reasonable efforts to implement a policy of environmental

responsibility concerning its products and processes, including where applicable,

pollution prevention and waste reduction programs. With respect to all

environmental, safety and industrial hygiene matters related to Supplier’s activities in

providing goods and/or services to Buyer, Supplier shall: (i) comply with all

applicable laws and regulations issued by federal, state and local authorities; (ii)

inform Buyer promptly of any significant adverse event (e.g., fires, explosions,

accidental discharges) that have the potential of affecting the quality of the goods

and/or services to be delivered; (iii) inform Buyer promptly of any allegations or

findings of violations of applicable laws or regulations that have the potential of

affecting the quality of the goods and/or services to be delivered; (iv) allow Buyer’s

representatives to inspect Supplier’s facilities, such inspections to be at reasonable

times and upon reasonable notice; and (v) implement promptly any corrective action

which may be reasonably requested by Buyer, including (without limitation) adhering

to reasonable and significant elements of the environmental, safety and industrial

hygiene program adhered to by Buyer in its own operations. Supplier shall provide

Buyer accurate information concerning ozone depleting chemicals used in its

products or processes when required by any applicable regulations or laws.

22. Compliance with Laws. Supplier agrees to comply with the applicable

provisions of any federal, national, state or local law, and all orders, rules and

regulations issued thereunder, whether now or hereafter in force, and any provisions,

representations or agreements required thereby to be included in the contract resulting

from acceptance of the PO are hereby incorporated by reference, including, but not

limited to, those prohibiting discrimination against any employee or applicant for

employment because of race, color, religion, sex or national origin, or physical or

mental handicap and those providing for the employment of disabled veterans and

veterans of the Vietnam era.

Supplier guarantees that no article shipped pursuant to this PO is adulterated or

misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, or is an

article which may not under the provisions of §404 or §505 of that Act be introduced

into interstate commerce.

Supplier guarantees that no article shipped pursuant to this PO is produced in

violation of any provisions of the Fair Labor Standards Act.

In the manufacture of the goods or delivery of the deliverables which are the subject

of the PO, Supplier shall employ young persons only as permitted by the Johnson &

Johnson Policy on the Employment of Young Persons and shall permit

representatives of Buyer to enter Supplier’s premises at any reasonable time to

inspect relevant employment, health and safety records and to observe the

manufacturing process. Supplier shall maintain the records necessary to demonstrate

compliance with such Policy on the Employment of Young Persons and shall provide

to Buyer a written certification of such compliance, if requested. If Supplier shall fail

to comply with this provision, then Buyer shall have the right to rescind in whole or

in part any PO without penalty.

If, (a) article shipped pursuant to this PO is produced using human blood, blood

component, tissue from a living or cadaveric donor, or from material derived

therefrom or (“Tissue”); or (b) such article contains Tissue; or (c) delivery of the

deliverables which are the subject of the PO include results generated using Tissue,

Supplier warrants and agrees that Tissue was collected or will be collected pursuant

to a legally effective informed consent under the Common Rule and patient

authorization under regulations implementing the Health Insurance Portability and

Accountability Act in effect at the time of collection and subject to approval by

Institution’s IRB, and J&JPRD may review the consent form used in collection of

Tissue, as well as any subsequent revisions thereof, but Institution is solely

responsible for obtaining the appropriate patient consent and authorization.

Supplier warrants that the goods sold or services rendered to Buyer shall conform to

the standards and/or regulations promulgated by the U.S. Department of Labor under

the Federal Occupational Safety and Health Act ("OSHA"). In the event the goods or

services do not conform to the OSHA standards and/or regulations, Buyer may return

the goods or deliverables for correction or, at Supplier’s option, replacement, in either

case, at Supplier’s expense. Services or goods which do not conform to the OSHA

standards and/or regulations must be corrected by Supplier at Supplier’s expense or

may be corrected by Buyer at Supplier’s expense in the event Supplier fails to make

the appropriate correction within a reasonable time.

Pursuant to Public Law 95-507, the provision at 48 Code of Federal Regulations

52.219-9, "Utilization of Small Business Concerns" is incorporated into any PO

issued pursuant to an agreement with Supplier in excess of $500,000. This clause is

aimed at maximizing opportunities for small and disadvantaged businesses where

appropriate and is intended for suppliers who offer further subcontracting

opportunities. When these conditions exist, Supplier agrees to use best efforts to carry

out this policy in the award of subcontracts to the fullest extent consistent with the

efficient performance of the contract.

23. Dispute Resolution. (i) Governing Law. The laws of the State of New

Jersey, without regard to principles of conflict of laws or Buyer’s place of residence,

will govern these terms and conditions and the PO.

(ii) Arbitration. Any dispute that might arise between Supplier and Buyer relating to

or arising from use of the Site or from the PO or the terms and conditions thereof

shall be settled by binding arbitration in accordance with the then prevailing

Commercial Arbitration Rules of the American Arbitration Association ("AAA"),

except where those rules conflict with this provision, in which case this provision

controls. Arbitration shall be conducted before a single arbitrator selected from the

AAA’s National Roster of Arbitrators. The arbitration shall be held, and Supplier and

Buyer irrevocably consent to arbitrate, in New Brunswick, New Jersey unless they

mutually agree upon an alternative location. The arbitration shall be conducted in

English. In rendering the award the arbitrator must apply the substantive law of New

Jersey (except where that law conflicts with this clause), except that the interpretation

and enforcement of this arbitration provision shall be governed by the Federal

Arbitration Act. Under no circumstances shall the arbitrator award damages in excess

of or inconsistent with the limitations contained in the "Limitation of Liability"

section of these terms and conditions. Any court with jurisdiction shall enforce this

clause and enter judgment on any award. Supplier and Buyer will agree upon, within

45 days after arbitration is initiated or, if they fail to agree, the AAA will design,

procedures that they will follow to assure that the arbitration will be concluded and

the award rendered within no more than eight months from selection of the arbitrator.

Supplier and Buyer each have the right before or during the mediation or arbitration,

if the arbitrator cannot hear the matter within an acceptable period, to seek and obtain

from the appropriate court provisional remedies such as attachment, preliminary

injunction, replevin, etc., to avoid irreparable harm, maintain the status quo or

preserve the subject matter of the arbitration.

(iii) Mediation. Prior to initiation of arbitration, Supplier and Buyer must

attempt to mediate, within a period of 45 days after the request for mediation, the

dispute using a professional mediator from the AAA or like organization selected by

agreement or, absent agreement, through selection procedures administered by the

AAA. In no event will mediation delay commencement of the arbitration for more

than 45 days or interfere with the availability of emergency relief.

(iv) No Publicity. The arbitration and mediation proceedings shall be

confidential and Supplier shall not publicize the nature of any dispute or the outcome

of any mediation or arbitration proceedings. The mediator or arbitrator, as the case

may be, shall issue appropriate protective orders to safeguard each party’s

confidential information.

24. Complete Agreement. These terms and conditions and the other agreements

(e.g., supply agreements, service agreements, statements of work) if any, pursuant to

which this PO was issued contain the entire understanding of the parties with respect

to the subject matter of the PO. In the event of any conflict between the terms and

conditions contained herein and those in any other applicable written agreement

relating to the subject matter of the PO and governing the relationship between Buyer

and Supplier, the conflicting terms and conditions in the other agreement will govern.

No modification, amendment or waiver of any term or condition hereof shall be

effective unless set forth in writing signed by Buyer and Supplier. Unless agreed to

by Buyer in a writing, Buyer will not be bound to any additional or different terms or

conditions hereafter transmitted by Supplier and Buyer will not be bound by its

silence, course of dealing, usage of the trade or its acceptance of the goods or

services.

25. Assignment. The PO and Supplier’s rights and duties hereunder shall not be

assignable by Supplier without the prior written consent of Buyer, which consent may

be withheld in its sole discretion. Buyer may assign its rights and obligations

hereunder to any one or more of its affiliates. The PO and these terms and conditions

shall inure to the benefit of and be binding upon Buyer and Supplier and their

respective successors and permitted assigns; nothing contained herein shall give to

any other person any benefit or any legal or equitable right, remedy or claim.

26. Miscellaneous. Headings used herein are for convenience only and shall not be

used for interpretive purpose. A party’s failure to act with respect to another party’s

breach of any provision contained herein does not constitute a waiver. If any

provision herein is held to be invalid or unenforceable, such provision shall be

narrowly construed, if possible, or otherwise deemed ineffective and the remaining

provisions shall not be affected. These terms and conditions will survive the

fulfillment of the PO.