- AGREEMENT. These terms and conditions constitute the entire agreement between Alphatec Spine, Inc. (“ATEC”) and the seller (“Seller”) identified in the Purchase Order ("Order") with respect to the products listed in the Order (“Products”) and any services listed in the Order (“Services”), unless Seller has a current executed agreement with ATEC applicable to the sale of such Products and/or Services, in which case the terms of that agreement shall govern the Order. Orders are deemed accepted by Seller if not objected to within five (5) days of receipt thereof by Seller.
- PACKAGING AND DELIVERY. Unless otherwise expressly provided in writing, all goods delivered to ATEC shall be FCA (Free Carrier), Seller’s Premises at the address set forth in the Order, (Incoterms 2020) Seller shall be responsible for standard packaging, crating, and storage of the goods up to delivery, unless otherwise specified in the applicable Order. The goods shall be marked in accordance with ATEC’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured to reach their destination in an undamaged condition in the ordinary course. Seller shall comply with the shipping instructions set forth in the applicable Order, unless otherwise expressly specified in the Order or herein. In the event Seller selects a non-compliant carrier, Seller shall credit ATEC for the difference in freight and applicable accessorial charges between ATEC’s preferred carrier and the non-compliant carrier selected by Seller.
- RISK OF LOSS. The goods shall be delivered FCA origin (Incoterms®). Risk of loss or damage to the goods passes from Seller to ATEC upon completion of loading the goods onto the carrier's vehicle provided by ATEC at Seller's premises.
- INSPECTION. ATEC's payment for the Products shall not constitute its acceptance of the Products. ATEC shall have the right, but not the obligation, to inspect the Products and to reject any Products that are damaged, defective, or otherwise fail to conform to the applicable Order or specifications. Payment shall not waive any of ATEC’s rights or remedies with respect to any nonconformity or defect, including any nonconformity or defect that was not reasonably detectable during an initial inspection. ATEC shall notify Seller of any nonconformity within a reasonable time after its discovery.
- PAYMENT TERMS. Seller shall be entitled to invoice ATEC on or at any time after delivery of the goods or performance of the services, and each invoice shall reference the Order number. Unless otherwise stated in the Order, terms of payment shall be 2% 10, Net 60. ATEC may deduct a two percent (2%) discount from the invoice amount if payment is remitted within ten (10) days of invoice receipt. If payment is not made within such period, the full invoice amount shall be due within sixty (60) days of receipt of a correct invoice. Unless instructed otherwise by ATEC in writing, invoices shall be sent to ATEC via email at AccountsPayable@atecspine.com.
- CHANGES. No modification of the Order shall be effective without ATEC's prior written approval. ATEC reserves the right to change: (i) specifications, instructions or drawings, when the Products are being specifically manufactured for ATEC; (ii) the place of delivery; (iii) the time of delivery; or (iv) the quantity. ATEC and Seller will equitably and in good faith negotiate the cost associated with any such change. For off-the-shelf Product, Seller shall notify ATEC of any changes that are planned to be made to the Product since it was validated and qualified by ATEC. If notice was not made before receiving a new Order for the changed Product, Seller shall provide notice of the changes and reject the Order. If after acceptance of an Order, Seller desires to or make changes to the Product, such as those that occur during production, Seller shall notify ATEC as soon as possible either prior to implementation, or, if not practicable, before fulfilling the Order and ATEC may terminate the Order without obligation or liability.
- CANCELLATION AND TERMINATION. ATEC may cancel any Order, in whole or in part, without liability up to thirty (30) days prior to the scheduled delivery date unless otherwise agreed in writing. ATEC may also terminate any Order, in whole or in part, upon written notice to Seller. Seller may terminate an Order only with ATEC’s written approval. In the event of termination, ATEC shall pay Seller only for conforming Products delivered and accepted, and Services properly performed, prior to the effective date of termination. ATEC may terminate any Order immediately without liability if: (i) a change is made to the Product or Services without ATEC's prior written approval; (ii) Seller breaches these terms and conditions or the applicable Order; or (iii) Seller becomes insolvent or subject to bankruptcy, liquidation, or receivership.
- WARRANTY. Seller warrants to ATEC that, for a period of one year from the date of delivery, the Products shall: (i) conform to the specifications, drawings, samples or other descriptions specified by ATEC or, if none are specified, to Seller's standard specifications for such Products, and (ii) be fit for ATEC’s intended purpose, merchantable, of good material and workmanship, and free from defect. ATEC's inspection, test, acceptance or use of the Products shall not be construed to relieve the Seller of these warranties. At ATEC's option and at Seller's cost, Seller shall correct any defects or replace any Products not conforming to these warranties within 60 days from the date ATEC notifies Seller of a defect. If Seller fails to do so, then Seller shall refund or credit the purchase price, at ATEC’s option. All Services shall be performed in a good and workmanlike manner in accordance with industry standards.
- INDEMNIFICATION. Seller shall defend, indemnify and hold harmless ATEC from any claim, suit, judgment, fees and costs (including reasonable attorneys’ fees) (“Claim”) based on or arising out of: (i) the resale or use of the Products (including death, personal injury, damage to property) or (ii) infringement of a third party’s intellectual property rights unless the Claim substantially results from: (x) Seller’s use of information or materials provided to Seller by ATEC; (y) Seller’s adherence to ATEC’s written instructions or specifications; or (z) ATEC’s gross negligence or intentional misconduct.
- CONFIDENTIALITY. All specifications, drawings, prototypes and other proprietary documents delivered by ATEC to Seller (“ATEC Materials”) are the property of ATEC. They are delivered solely for the purpose of Seller's performance of the Order and on the express condition that the information contained in them shall not be disclosed to others nor used for any purpose other than in connection with the Order. Seller will not use ATEC's name or any of its trademarks, service marks, trade names, or logos without ATEC’s prior written approval. Seller shall promptly return to ATEC all ATEC Materials upon ATEC's written request. Seller's obligations under this Paragraph shall survive the cancellation, termination or completion of the Order.
- ASSIGNMENT. The Order may not be assigned by Seller without ATEC's prior written approval.
- FORCE MAJEURE. Neither party shall be liable for any delay or failure in performing its obligations under an Order to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, war, terrorism, civil unrest, labor disputes, governmental actions, transportation disruptions, or shortages of materials or utilities (“Force Majeure Event”). The affected party shall promptly notify the other party and use commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance. A Force Majeure Event shall not excuse Seller's failure to obtain materials, supplies, labor, or services from alternative sources when reasonably available. If Seller's performance is delayed by a Force Majeure Event for more than thirty (30) consecutive days, ATEC may cancel or terminate the affected Order, in whole or in part, without liability.
- COMPLIANCE WITH LAWS. Seller warrants to ATEC that the manufacture, production, sale and delivery of the Products are in full compliance with applicable federal, state, and local laws, and all related regulations, rules, declarations, interpretations and orders. Seller specifically warrants to ATEC that the Products are not: (i) in violation of Section 6 or 12 of the Federal Trade Commission Act or in violation of the Fair Packaging and Labeling Act; (ii) adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, as amended (“FDA Act”), and all other applicable federal, state, and municipal laws, rules and regulations; (iii) products which may not be introduced to interstate commerce under Sections 404 or 505 of the FDA Act or under all other applicable federal, state and municipal laws, rules and regulations; (iv) hazardous substances, or if they are hazardous substances are not misbranded as hazardous substances or a banned hazardous substance as defined in the Federal Hazardous Substances Act; or (v) manufactured in violation of the Fair Labor Standards Act of 1938, as amended.
- ORDER OF PRECEDENCE. In the event of any conflict or inconsistency among the applicable documents, the following order of precedence shall apply: (i) a written supply, services, or other agreement executed by ATEC and Seller; (ii) the applicable Order; (iii) these Terms and Conditions; and (iv) any specifications, drawings, or other technical documents provided by ATEC. Notwithstanding the foregoing, specifications, drawings, and technical documents shall control with respect to technical requirements to the extent they do not conflict with a higher-ranking document.
- Severability. If any provision of these terms should be or become fully or partly invalid or unenforceable for any reason, such provision shall be severable from these terms and conditions and the remainder shall be deemed valid and binding.
- MISCELLANEOUS. No modification or waiver of the provisions of the Order shall be valid or binding unless approved by ATEC in writing. All representations, warranties and covenants of Seller shall survive termination of the Order. The validity, construction and enforcement of these terms and conditions and all matters related to it or in connection with it shall be governed by the laws of the State of California, and ATEC and Buyer irrevocably submit to the jurisdiction of the courts of San Diego county. No delay or failure by either party to enforce any provision of these terms and conditions, or failure to exercise any right under them, will constitute a waiver of such party’s right to enforce such provision or exercise such right.
