Purchase Order Terms and Conditions

  1. AGREEMENT. These terms and conditions constitute the entire agreement between Alphatec Spine, Inc. (“Buyer”) 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 Buyer applicable to the sale of such Products and/or Services, in which case the terms of that agreement shall govern this Order.
  2. PACKAGING AND DELIVERY. Products shall be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer in the Order. If Buyer does not specify packaging requirements, Seller shall package the Products in a commercially reasonable manner so as to avoid any damage in transit. If delivery of the Products is not made in the quantities and on the delivery date(s) specified, Buyer shall have the right, in addition to other legal and equitable rights and remedies, to: (i) require expedited delivery of the Product, at Seller’s expense, or (ii) cancel this Order by written notice and receive a refund of any prepaid amounts.
  3. RISK OF LOSS. Title and risk of loss shall not pass to Buyer until the Products have been received and accepted by Buyer at the destination specified in the Order.
  4. INSPECTION. Buyer's payment for the Products shall not constitute its acceptance of the Products. Buyer shall have the right, but not the obligation, to inspect the Products and to reject any Products that are damaged or defective.
  5. CHANGES. No modification of this Order shall be effective without Buyer's prior written approval. Buyer reserves the right to change: (i) specifications, instructions or drawings, when the Products are being specifically manufactured for Buyer; (ii) the place of delivery; (iii) the time of delivery; or (iv) the quantity. Buyer and Seller will equitably and in good faith negotiate the cost associated with any such change. For off-the-shelf Product, Seller shall notify Buyer of any changes that are planned to be made to the Product since it was validated and qualified by Buyer. 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 Buyer as soon as possible either prior to implementation, or, if not practicable, before fulfilling the Order and Buyer may terminate the Order without obligation or liability.
  6. CANCELLATION. Buyer may cancel this Order, in whole or in part, without liability up to 30 days prior to the delivery date unless otherwise agreed in writing. Buyer may terminate this Order immediately without liability if: (i) a change is made to the Product, whether or not Buyer received the required notice; or (ii) Seller becomes insolvent or subject to bankruptcy, liquidation or receivership.
  7. WARRANTY. Seller warrants to Buyer 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 Buyer or, if none are specified, to Seller's standard specifications for such Products, and (ii) be fit for Buyer’s intended purpose, merchantable, of good material and workmanship, and free from defect. Buyer's inspection, test, acceptance or use of the Products shall not be construed to relieve the Seller of these warranties. At Buyer'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 Buyer notifies Seller of a defect. If Seller fails to do so, then Seller shall refund or credit the purchase price, at Buyer’s option. All Services shall be performed in a good and workmanlike manner in accordance with industry standards.
  8. INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Buyer 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 Buyer; (y) Seller’s adherence to Buyer’s written instructions or specifications; or (z) Buyer’s gross negligence or intentional misconduct.
  9. CONFIDENTIALITY. All specifications, drawings, prototypes and other proprietary documents delivered by Buyer to Seller (“Buyer Materials”) are the property of Buyer. They are delivered solely for the purpose of Seller's performance of this 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 this Order. Seller will not use Buyer's name or any of its trademarks, service marks, trade names, or logos without Buyer’s prior written approval. Seller shall promptly return to Buyer all Buyer Materials upon Buyer's written request. Seller's obligations under this Paragraph shall survive the cancellation, termination or completion of this Order.
  10. ASSIGNMENT. This Order may not be assigned by Seller without Buyer's prior written approval.
  11. COMPLIANCE WITH LAWS. Seller warrants to Buyer 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 Buyer 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.
  12. MISCELLANEOUS. No modification or waiver of the provisions of this Order shall be valid or binding unless approved by Buyer in writing. All representations, warranties and covenants of Seller shall survive termination of this 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. 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.