Terms and conditions

1. DEFINITIONS. The following definitions apply unless otherwise specified:
Buyer means Patterson Companies, Inc.; PO means the contractual instrument, including these Terms and Conditions, special or supplemental provisions, statement of work(s) (SOWs), or purchase order and any agreed upon changes thereto; Provider means the legal entity contracting with Buyer; Terms and Conditions means these General Terms & Conditions of Purchase; and Work means the labor, articles, materials, products, supplies, parts, substance, mixture, preparation, assemblies, subassemblies, commodity, data, drawings, goods, items, and/or services constituting the subject matter of the PO, including any packaging materials or containers.

2. GENERAL; ACCEPTANCE OF PO. Provider agrees to provide Work to Buyer in accordance with the PO. Acceptance of the PO is strictly limited to the terms and conditions stated herein. Any term or condition stated by Provider in any prior proposal, on Provider’s acknowledgement form, or otherwise acknowledging or accepting the PO is deemed to be a material alteration of the PO and is hereby rejected. Any of the following acts by Provider will constitute acceptance of the PO: signing and returning a copy of the PO (in hard copy or electronically); commencement of performance; Provider’s notice to Buyer of the commencement of performance; or delivery of Work.

3. PROVIDER CHANGES/PART OBSOLESCENCE. Provider shall notify Buyer in writing, at least 90 days in advance, of any material changes to the Services covered by this Agreement.

4. DELIVERY TERMS AND TRANSFER OF TITLE. Delivery of Work will be FOB Destination as defined in the most recent version of Incoterms. Delivery will be made pursuant to the schedule, via the carrier named by Buyer to the Buyer facility specified on the face of the PO, without charge for boxing, crating or storage unless otherwise specified. Title to Work will pass to Buyer upon acceptance, regardless of when or where Buyer takes physical possession, unless the PO specifically provides for earlier passage of title. The risk of loss of nonconforming goods remains with Provider until cure or acceptance.

5. INSPECTION; ACCEPTANCE. Acceptance of the Services shall be deemed to occur on the date when, in the reasonable opinion of Buyer, the Services conform to the Service Specifications set forth in the applicable PO and has continuously maintained in compliance with the Service Specifications for thirty (30) days. Buyer will notify Provider of any issues of non-conformance. Provider shall have thirty (30) days to cure any non-conformances preventing Acceptance. Failure to correct is a material breach. Acceptance of Services does not constitute a waiver of claims.

6. DELIVERY; NOTIFICATIONS. Time is of the essence, and Provider will deliver Work according to the PO schedule date(s). Provider will promptly notify Buyer if it suspects or becomes aware of an inability to deliver Work in accordance with the PO. Upon such notice, Buyer may, at its option, i) decline to accept Work and terminate the order; ii) demand its allocable fair share of Provider's available Work and terminate the balance of the PO; or iii) require delivery at the sole expense of Provider by the fastest method to meet the delivery dates. Buyer shall be entitled to pursue any and all remedies available under applicable Law, contract and/or equity, including but not limited to Buyer’s right to terminate this PO for default.

7. WARRANTY. Provider warrants that Work will conform to applicable specifications, drawings, samples and/or other descriptions given and will be merchantable and fit for the particular purpose for which it has been purchased and free from defects in workmanship and material for a period of eighteen (18) months from shipment or for the period provided in Provider's standard warranty covering Work, whichever is longer. Supplier will use commercially reasonable efforts to obtain and flow through to Buyer third party warranties for any Work not manufactured by Provider. In addition, all Work will be subject to all warranties provided by applicable law. Provider warrants that it has and will provide Buyer with title to Work, free and clear of all claims, liens or encumbrances. All Work provided to Buyer hereunder will be new. The warranties contained in this section are in addition to and are not to be construed as restricting or limiting any warranties or remedies of Buyer, express or implied, which are provided by the PO or law. Any attempt by Provider to limit, disclaim or restrict any such warranties or remedies of Buyer, in any manner whatsoever will be null, void, and ineffective. Inspection, test, acceptance, or Buyer’s incorporation of Work will not affect Provider’s obligations under this warranty, and will survive such inspection, test, acceptance, and use. Upon notice from Buyer that Work supplied hereunder fails within the warranty timeframe, in addition to any rights or remedies Buyer may have under the PO or law, Provider will reimburse Buyer for all costs incurred by Buyer as result of such failure, including all repair and replacement costs, and Provider will replace such defective Work at no cost to Buyer or refund the purchase price of Work, at Buyer’s discretion. Warranty failures will be returned to Provider at Provider’s expense and at Buyer’s discretion. All repairs and/or replacements will be with new products only. For services provided, Provider warrants that (a) Provider and the individuals provided by it hereunder possess the experience and ability to perform Work; (b) services will be performed in a workmanlike and professional manner and in conformance with all applicable law, statute, ordinance, rule, regulation and order (“Laws”) and professional standards; (c) no services, material, equipment or work product supplied by Provider will infringe the rights of any third party, including, but not limited to, patent, trade secret, trademark or copyright; (d) Provider is not prohibited by any agreement from entering into the PO or providing the services contemplated hereby; and (e) Provider has verified the credentials of the individuals provided by it hereunder and that they are suited to perform the services.

8. PAYMENT. Buyer will pay Provider within sixty (60) days of receipt of correct and accurate invoice except for any amounts disputed by Buyer in good faith. If Client makes payment within twenty (20) days of receipt of the invoice, Client will be able to deduct two percent (2%) from such amount (“Early Payment Discount”). Provider acknowledges that any such payment after deducting the Early Payment Discount constitutes payment in full of the invoiced amount.

9. INDEMNIFICATION. Provider agrees to indemnify, hold harmless and, and at Buyer's request, defend, Buyer, its officers, employees and directors (each, an “Indemnified Party”) against any and all claims, liabilities, fines, penalties, offsets, judgments, costs, damages, losses and expenses, including reasonable attorneys' fees and expenses, alleged against or incurred by an Indemnified Party on account of the acts or omissions of Provider or its employees, agents or subcontractors in any way connected with Work or the performance of the PO, including violations of Law or infringement of intellectual property. Provider will not settle any such claim without Buyer's prior approval. If Buyer's or Buyer’s customers’ use of Work is enjoined or otherwise prevented by legal action because of alleged infringement, Provider will, at its sole expense, (a) substitute fully equivalent non-infringing Work; (b) modify Work so that it no longer infringes but remains fully equivalent in functionality; (c) obtain for Buyer and its customers the right to continue using Work; or (d) refund all amounts paid for the infringing Work.

10. CONFIDENTIALITY. a. To the extent that confidential and proprietary information of a Party (“Confidential Information”) is exchanged or received in connection with this Agreement, the receiving Party agrees to maintain the confidential nature of the Confidential Information of the disclosing Party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps will be at least equal to those taken by the receiving Party to protect its own Confidential Information. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that becomes publicly available other than by a breach of this provision by the receiving Party; (ii) information previously known by or developed by or for the receiving Party without use of or access to the Confidential Information of the disclosing Party; or (iii) information that the receiving Party rightfully obtains without restrictions on use and disclosure.
b. The receiving Party may disclose the Confidential Information of the disclosing Party to its or its Affiliates’ employees or independent contractors provided that such party has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section. The receiving Party may also disclose Confidential Information of the disclosing Party in accordance with a judicial, government or agency order or law, provided that the receiving Party required to make such disclosure will, to the extent permitted, provide the disclosing Party with reasonable prior notice of such disclosure and will comply with any applicable protective order or equivalent that applies to such disclosure. In addition to the foregoing, Softchoice may disclose the Confidential Information of Client to its third-party vendors or subcontractors provided that such party: (i) is providing Services in connection with this Agreement; (ii) has a need to know the information; and (iii) is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section.
c. The receiving Party will be liable to the disclosing Party for any breach of the receiving Party’s confidentiality obligations committed by any person or entity to whom the receiving Party is permitted to disclose the Confidential Information of the disclosing Party pursuant to this Section. Upon request by the disclosing Party, the receiving Party will return all originals, copies, records, notes and summaries of the Confidential Information or, at the disclosing Party’s option, certify the destruction of the same. Notwithstanding the foregoing, the receiving Party may retain archival copies of the Confidential Information for legal, regulatory or compliance purposes, and nothing will require the erasure, or destruction of back-up media made in accordance with its document-retention procedures.

11. INTELLECTUAL PROPERTY. "Background Intellectual Property" means all Intellectual Property other than Foreground Intellectual Property. Each Party retains its existing rights in Background Intellectual Property.
"Foreground Intellectual Property" means all intellectual property and tangible work product conceived, created, developed, or first reduced to practice in connection with the Order, including without limitation inventions, technology, designs, works of authorship, technical information, computer software, computer software documentation, copyrights, patents, and patent applications. Buyer will own all Foreground Intellectual Property. Supplier will disclose to Buyer all Foreground Intellectual Property. If not expressly required to be delivered in the Order, Supplier will deliver to Buyer all Foreground Intellectual Property upon written request from Buyer. Supplier hereby irrevocably assigns and promises to assign to Buyer all right, title and interest to all Foreground Intellectual Property. Supplier agrees to do all things reasonably necessary to enable Buyer to secure and perfect Buyer's rights in Foreground Intellectual Property rights, including, without limitation, executing specific assignments of title in Foreground Intellectual Property by Supplier to Buyer and cooperating with Buyer at Buyer's expense to defend and enforce Buyer's rights in any such Foreground Intellectual Property. To the extent that any Background Intellectual Property is used in connection with, included, or contained in Work and not owned by Buyer pursuant to this or a previous agreement, Provider grants to Buyer a worldwide, non-exclusive, irrevocable, paid up, perpetual, royalty-free right and license to make, have made, sell, offer for sale, import, use, execute, reproduce, display, perform, distribute (internally and externally) copies of, and prepare derivatives of, and authorize other to do any, some or all of the foregoing.

12. TITLE TO DRAWINGS, SPECIFICATIONS AND WORK PRODUCT. Buyer will at all times have title to all drawings, specifications, and work product generated by or for Provider in connection with the PO. In addition, Provider agrees that it does not have title to the drawings, specifications and work product provided to Provider by Buyer. Provider agrees to use all drawings, specifications, and work product generated pursuant to the PO solely in connection with the PO and that such information is Buyer Confidential Information.

13. INSURANCE. Provider will obtain and maintain insurance in the forms and amounts as required by applicable law and in such levels as to cover work and product contemplated by the respective PO.

14. TERMINATION FOR DEFAULT.
(a) Buyer may by written notice of default to Provider, terminate the PO in whole or in part if Provider: (1) fails to deliver Work within the time specified in the PO or any extension issued in a writing; (2) fails to make progress, so as to endanger performance of the PO; (3) fails to comply with or perform any of the provisions of the PO; (4) files a petition in bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or is liquidated or placed in receivership; or (5) fails to cure a breach within 10 days after receipt of the notice from Buyer specifying the failure.
(b) If Buyer terminates the PO in whole or in part, Provider will be liable to Buyer for any excess costs of such Work. However, Provider will continue Work not terminated.
(c) If the PO is terminated for default, Buyer may require Provider to transfer title and deliver to Buyer any (1) completed Work, and (2) partially completed Work that Provider has specifically produced or acquired for the terminated portion of the PO. Upon direction of Buyer, Provider will also protect and preserve property in its possession in which Buyer has an interest.
(d) Buyer will pay the PO price for completed Work accepted by Buyer. Provider and Buyer will agree on the payment for other uncompleted Work that the Procurement Representative has directed be delivered to Buyer. Buyer may withhold from these amounts any sum Buyer determines to be necessary to protect Buyer against loss.
(e) If, after termination, it is determined that Provider was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of Buyer under the Termination for Convenience clause. The rights and remedies of Buyer in this clause are in addition to those provided by law or under the PO.

15. TERMINATION FOR CONVENIENCE. Buyer, for its convenience, may terminate the PO in whole or in part at any time by written notice to Provider. Upon receipt of such notice, Provider will immediately proceed with the following actions: (a) stop work as specified in Buyer’s written notice; (b) place no further subcontracts or orders except as necessary to complete the non-terminated portion of the PO; and (c) comply with instructions of Buyer’s written notice and any subsequent written notice.

16. BUYER PROPERTY. Buyer may provide Buyer Property to Provider and such Buyer Property will be used only for the performance of the PO. Unless otherwise provide on the face of the PO, all Buyer Property will be provided “AS IS” and without warranty.

17. FORCE MAJEURE. Neither Provider nor Buyer will be liable for any delay or failure to perform any of its obligations under the PO if and to the extent such delay or failure is due to circumstances beyond the reasonable control of such party, including but not limited to, fires, floods, pandemics, explosions, accidents, acts of God, declared and undeclared wars or riots, strikes or lockouts, shortages of materials or transportation facilities, inability to obtain export or import licenses, acts of government or any provision or requirement of any law, regulation, order or rule.

18. INDEPENDENT CONTRACTOR. Provider is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Provider will secure, at Provider’s sole cost, worker's compensation insurance, disability benefits insurance, and any other insurance required by law. Buyer will not provide, nor will it be responsible to pay for, employee benefits to Provider or employees of Provider. Provider will pay all required taxes, whether federal, state or local in nature, and any other fees, charges, licenses, or other payments required by law on any compensation paid by Buyer to Provider pursuant to this Agreement. Provider hereby waives any right to bring a claim or action against Buyer or any of its affiliates as to entitlement to any employee benefits with respect to periods of performance hereunder.

19. COMPLIANCE WITH ANTI-CORRUPTION AND BRIBERY LAWS AND REGULATIONS. Provider warrants that the Work to be furnished and the services to be rendered under this PO shall be manufactured, sold, used and rendered in compliance with all applicable federal, state, local law, orders, rules, ordinances, and regulations and will comply with all applicable country laws relating to anti-corruption and/or anti-bribery, including but not limited to the Foreign Corrupt Practices Act, as amended, (FCPA) regardless of whether Provider is within the jurisdiction of the United States, and the 2010 UK Bribery Act (as amended) and neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value received from a buyer to a public official or any person in violation of the FCPA, UK Bribery Act and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery.

20. EXPORT/IMPORT CONTROLS. Provider will not use, export, re-export or otherwise release any technology, Work, technical data or other items provided to Provider by Buyer, except in compliance with all applicable U.S. export Laws. Provider agrees to comply with all applicable export control Laws of that originating country.

21. STANDARDS OF CONDUCT. Provider acknowledges and understands the value of ethical work place environments and has implemented proper policies and training to ensure compliance with Buyer’s Business Partner Compliance Standards.

22. COUNTERFEIT PARTS. Provider will not furnish to Buyer any Work that is or contains Counterfeit Goods. Provider will maintain counterfeit risk mitigation processes in accordance with industry recognized standards and with any other specific requirements identified in the PO.

23. CONFLICT MINERALS. Provider agrees to review and comply with Conflict Minerals Laws. Provider will provide Buyer with reasonable documentation of Provider’s and its suppliers’ due diligence efforts with regard to Conflict Minerals, in a format prescribed by Buyer, when requested by Buyer.

24. QUALITY COMPLIANCE. To the extent Provider will be providing Services which impact Buyer’s products or quality systems, as determined by Buyer, Provider agrees to comply with applicable quality regulations.

25. PRIVACY AND SECURITY COMPLIANCE. Provider complies with all applicable laws relating to data privacy and security. Provider has appropriate administrative, physical, and technological controls to ensure compliance with industry regulations. To the extent that Provider’s employee has access to any “Protected Health Information (‘PHI’),” as such is defined under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and regulations promulgated thereunder by the U.S. Department of Health and Human Services (“HIPAA”), Provider agrees to enter into a Business Associate Agreement with Buyer. If Provider is a subprocessor under governing laws, Provider will enter into a Data Protection Agreement (DPA) with Buyer.

26. AUDIT RIGHTS. HHS, Buyer and/or its representatives may have reasonable access to Provider’s facilities or request documentation to audit and inspect materials, processes, and records connected with Work and compliance with the PO.

27. RECORDS. Unless a different period is set forth elsewhere in the PO, Provider will retain all pertinent books, documents, papers, and records involving transactions related to the PO for a period of seven (7) years after final payment on the PO.

28. SEVERABILITY. If any provision of the PO is declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

29. ASSIGNMENT. Provider may not assign the PO or any of its rights or obligations hereunder without Buyer’s prior consent and any assignment without such consent is null and void.

30. NOTICES. All notices and other communications relating to the PO, including consents, will be in writing and will be addressed to Provider or Buyer at the addresses set forth on the face of the PO and will be considered given when (a) delivered personally, (b) sent by confirmed facsimile or email, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.

31. WAIVER. No waiver by any party of any of the provisions of the PO will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the PO, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the PO will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

32. SURVIVAL. All rights, obligations, and duties hereunder, which by their nature or by their express terms extend beyond the expiration or termination of the PO, including but not limited to warranties, indemnifications, intellectual property (including rights to and protection of intellectual property and proprietary information), and product support obligations will survive the expiration or termination of the PO.

33. DISPUTES. Any controversy or claim that may arise out of or in connection with the PO that after good faith negotiations cannot be resolved to the parties’ mutual satisfaction may be resolved by submitting a claim to a court in the District Court of Hennepin County, Minnesota or the United States District Court for the District of Minnesota which will have exclusive jurisdiction and venue over all controversies arising from or related to the PO. Pending resolution or settlement of any dispute arising under the PO, Provider will proceed diligently as directed by Buyer with the performance of the PO.

34. GOVERNING LAW. The PO and performance of the PO will be governed by and construed in accordance with the laws of the State of Minnesota, excluding its conflict of laws rules. Provider and Buyer agree that the UN Convention on Contracts for the International Sale of Goods does not apply to the PO.

35. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT AND OTHER RESPONSIBILITY MATTERS. Provider certifies that, to the best of its knowledge and belief, that it (1) is not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; (2) has not within a three-year period preceding this offer, been indicted or convicted of or had a civil judgment rendered against them for: commission of fraud, embezzlement, theft, forgery, bribery, falsification or destruction of records or making false statements; and (3) has not within a three-year period preceding this offer had any contract terminated for default by any Federal agency. Provider will provide immediate written notice to Buyer if, any time prior to award of any order, it learns that its certification was erroneous when submitted, or has become erroneous by reason of changed circumstances.

36. EQUAL OPPORTUNITY. If applicable, Provider and all covered subcontractors shall abide by the requirements of 41CFR 60.14(a), 29 CFR Part 741, Appendix A to Subpart A, 60-300.5(a) and 60-741-5(a). These regulations prohibit discrimination against qualified individuals based on race, color, religion, sex, national origin protected veteran status or disability. Moreover, these regulations require affirmative action to employ and advance employment in individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

37. ENTIRE AGREEMENT. The PO is the complete and final statement of the terms between the parties. Unless Buyer and Provider have entered into an effective negotiated agreement, the PO supersedes any and all prior or contemporaneous agreements, whether oral or written, relating to the subject matter hereof. Any inconsistencies in the PO will be resolved in accordance with the following descending order of precedence: (a) these Terms and Conditions; (b) the face of the PO document; (c) any supplementary terms, conditions or provisions referenced in the PO; and (d) other documents incorporated into the PO by reference. The PO may not be changed in any respect without the written approval of Buyer and Provider.