Mac Cal, Inc. Supplier Guide to Purchasing

1. Definitions. Capitalized terms have the following meanings: (a) “Goods” means the goods, software, and other items supplied or obligated to be supplied under this Purchase Order (if any); (b) “Project” means all Goods and Services; (c) “Purchase Order” means this written or electronic order for Goods or Services; (d) “Purchaser” means Mac Cal, Inc. Health, Inc., a Delaware corporation, with its principal place of business at 150 Shoreline Road, Redwood City, California 94065; (e) “Services” mean the services provided or obligated to be provided under this Purchase Order (if any); (f) “Specified” means as specified on the first page of this Purchase Order; and (g) “Supplier” means the individual or entity supplying Goods or Services to the Purchaser.
2. Acceptance. Supplier will be deemed to have accepted the terms of this Purchase Order upon the earliest of: (a) Supplier’s signing and returning a copy of this Purchase Order to Purchaser, (b) Supplier’s shipping of the Goods to Purchaser or starting performance of the Services, or (c) Supplier’s acknowledging this Purchase Order by other commercially acceptable means.
3. Supplier Forms. Either party may use its standard business forms to administer Purchase Orders, but use of such forms is for the parties’ convenience only and does not alter the provisions of this Purchase Order. PURCHASER WILL NOT BE BOUND BY, AND SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THE PROVISIONS OF THIS PURCHASE ORDER (WHETHER PROFFERED BY SUPPLIER ORALLY OR IN ANY QUOTATION, INVOICE, SHIPPING DOCUMENT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY PURCHASER.
4. Price and Payment. The specified price shall be for product price only, and shall be separated from any applicable freight, packaging, insurance, handling and all other charges, unless otherwise noted. Standard terms are EXW unless otherwise agreed. Specified prices are not subject to increases or additional charges for any reason; however, Purchaser will receive the benefit of any general reduction in Supplier’s price prior to delivery. Discount periods, if applicable, will commence on the date shipment is received or accepted by Purchaser or the date of receipt of invoice, whichever is later. Supplier will separately invoice Purchaser for all amounts payable. Unless otherwise Specified, Purchaser will make payment 90 days after the Purchaser’s receipt of Supplier’s correct invoice along with the Purchasers Acceptance of the Goods and Services. Purchaser may upon reasonable notice and during normal business hours examine and make copies of all books and records relating to the Project, and Supplier will provide reasonable assistance in collecting and reporting data requested by Purchaser for the purposes of investigation or audit.
5. Performance. Time is of the essence in Supplier’s performance under this Purchase Order. Supplier will perform any Services on the schedule specified in the Purchase order or as otherwise agreed in writing by Supplier and Purchaser. Supplier will deliver the Specified quantity of Goods to Purchaser at the Specified destination no later than the Specified delivery date and no earlier than 5 days. Supplier promptly will advise Purchaser in writing of any delay, circumstance or development that impairs Supplier’s ability to provide the Project by the required delivery date. Supplier will properly package the Goods to protect against damage during shipment, handling and storage pursuant to ASTM D4169 Standard Practice for Performance Testing of Shipping Containers and Systems. All rights, title, interests and all risks of loss and damage to any Goods will pass to Purchaser upon Purchaser’s acceptance of such Goods.
6. Inspection. Purchaser may inspect the Goods at any time, and Supplier will provide reasonable access and facilities for such inspection prior to shipment. All specifications, drawings, samples, requirements, descriptions, other materials and plans that relate to the Project are incorporated in this Purchase Order by reference. No Goods will be deemed accepted before final inspection by Purchaser at the Specified destination. Purchaser’s inspection, failure to inspect or failure to discover any defect, acceptance or payment will not waive or limit any warranty, relieve Supplier of any obligation hereunder or impair Purchaser’s rights or remedies at law or in equity.
7. Licenses. Supplier hereby grants and Purchaser accepts, a nonexclusive license to use any software, including any third-party software or packaged software, which is ordered or contained in the Goods ordered and its related documentation. Unless otherwise Specified, the license is a perpetual, non-exclusive, worldwide, royalty free license to install, use, operate and copy the software on any number of networked or non-networked hardware at any facility or location, subject to any Specified volume or other license parameters, and to use and copy related documentation as necessary or desirable in connection with the installation, use and operation of the software. Purchaser may sublicense any and all rights granted to its affiliates and to any third parties who perform services for Purchaser or any of its affiliates.
8. Representations and Warranties. Supplier represents and warrants that (a) the Goods are free from defects in design, materials, workmanship and title, (b) the Goods are of good and suitable quality and that all materials and other items incorporated in the Goods will be new (not refurbished or reconditioned), unused and suitable for their intended purpose, (c) the Project does not, in whole or in part, violate, misappropriate or infringe any patent, trademark, trade secret, copyright or other right of any third party, (d) the Goods conform to the applicable drawings, specifications, descriptions provided to Purchaser, the requirements of this Purchase Order and are of comparable quality as any samples delivered to Purchaser, (e) any Services will be provided in a competent and workmanlike manner in accordance with the level of professional care customarily observed by highly skilled and experienced professionals rendering similar services; (f) the Project will comply with all applicable laws, rules regulations and other requirements of applicable governmental authorities, including all applicable health, safety and environmental regulations, (g) Supplier and its Personnel (defined below) will hold and fully comply with all required licenses, permits and approvals. Supplier agrees to comply with Mac Cal, Inc.’s policies and procedures including but not limited to Mac Cal, Inc.’s Supplier Code of Conduct and Mac Cal, Inc.’s Supplier Quality Manual, including reasonable amendments thereto, and will comply with any other Mac Cal, Inc. policies and procedures as requested by Mac Cal, Inc. from time to time. Supplier further agrees to ensure compliance by its Subcontractors and suppliers with such Mac Cal, Inc. policies and procedures (a breach by Supplier or any Subcontractor of any Mac Cal, Inc. policies and procedures communicated to Supplier shall be deemed to be a breach by Supplier). If the Project includes Services, Supplier additionally represents and warrants that all Personnel are authorized to lawfully perform the Services pursuant to applicable immigration and work status laws and regulations.. If the Goods are or contain software, Supplier further represents and warrants that: (x) the software does not and will not contain any copy protection, automatic shut-down, lockout, “time bomb” or similar mechanisms that could interfere with Purchaser’s exercise of its rights hereunder, (y) the software does not and will not contain any viruses, “trojan horses” or other harmful code, and (z) the software is not subject to any license or other terms that require that other software or documentation incorporating or used with such software be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or be redistributable at no charge.
9. Rejection and other Remedies. If the Goods do not strictly comply with the requirements of this Purchase Order, Purchaser may reject any or all of them within a reasonable period of time after delivery without regard to whether payment has been made. In such case, Purchaser may (a) retain any or all of such Goods for correction by Purchaser or others, (b) retain any or all of such Goods for use as delivered, subject to an equitable adjustment in price as described below, or (c) return any or all of such Goods with or without instruction for correction or replacement. Supplier will promptly comply with any instruction for correction or replacement. If Purchaser requests Supplier to make any correction and Supplier thereafter fails or indicates its inability or unwillingness to do so, Purchaser may have the correction made. Purchaser will be entitled to recover from Supplier (by credit, offset, invoice or otherwise) an equitable amount for the diminished value of any uncorrected Goods and all costs reasonably incurred by Purchaser in connection with rejected Goods (including but not limited to all costs of correction by Purchaser or others and all costs to return Goods to Supplier). Supplier will, at no cost to Purchaser, promptly and satisfactorily correct any Services found to be defective or not in conformity with this Purchase Order.
10. Cross Border Sales and Returns. Supplier will deliver any cross-border sale of Products to Purchaser EXW. DDP shall apply for returns and NCM, unless otherwise agreed to in writing by Purchaser. If DDP, Supplier will be the importer and exporter of record on all such transactions, will not list Purchaser on any import, export or other customs documentation, and will be directly responsible for ensuring that such cross-border sales comply with all export and import regulations (including, without limitation, export licensing, shippers export declaration, and export invoice). Without limiting the foregoing, any export or import document must, among other matters, separately itemize and state the separate value for each item of hardware, software, set-up, and any non-dutiable service. If Purchaser returns any Product under this Agreement, such Product will be returned DDP and Supplier will be the importer and exporter of record on all such transactions and will be directly responsible for ensuring that such returns comply with all export and import regulations. Notwithstanding the terms of Section 16, for Products delivered, Supplier hereby agrees that any duties and taxes that may be recoverable by the Supplier shall not be charged or collected from the Purchaser.
11. Hazardous Material. Any hazardous materials to be provided to Purchaser under this Purchase Order must be marked, labeled, and offered for transportation in accordance with all applicable legal requirements. All packages must be in approved containers and material safety data sheets must be included with each shipment. For purposes of this section, “hazardous material” means any chemical, compound, material, waste or other item whether in liquid, solid or gaseous form, which is regulated or restricted in transportation (unless properly marked, labeled and package) by any laws, rules or regulations of any federal, state, municipal, or local authority, whether statutory or regulatory in nature.
12. Defense and Indemnity. Supplier will defend and indemnify Purchaser from any claim based on or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorney fees) arising out of any claim arising from, related to or alleging (a) the design, manufacture, possession, ownership, use, sale or transfer of the Goods, (b) breach of any of Supplier’s representations, warranties or other obligations under this Purchase Order, (c) any act or omission of Supplier or its Personnel related to the Project, except to the extent caused by the negligence or willful misconduct of Purchaser as determined by a final, non-appealable order of a court having jurisdiction, (d) Supplier’s breach of Section 8, including but not limited to any taxes, duties, interest or penalties. Supplier’s duty to defend is independent of its duty to indemnify, or (e) any personal injury, death or property damage arising out of or incidental to the performance of this Purchase Order or the Project, or otherwise caused by Supplier or its Personnel. Supplier’s obligations under this Section 10 are independent of any other obligation of Purchaser under this Purchase Order. If Supplier performs Services on Purchaser’s premises, in connection with any action to enforce Supplier’s obligations under this section related to any claim arising out of bodily injury (including death) to any person directly or indirectly employed by Supplier, Supplier waives any immunity, defense or protection under any workers’ compensation, industrial insurance or similar laws and assumes liability for such claim. This paragraph will not be interpreted or construed as a waiver of Supplier’s right to assert any such immunity, defense or protection directly against any of its own employees or such employees’ estate or other representatives.
13. Purchaser-Furnished Property. Supplier assumes complete liability for all tools, articles, materials, equipment, software and other items, if any, furnished by Purchaser to Supplier in connection with this Purchase Order (“Purchaser Property”). Supplier will use Purchaser Property solely to the extent necessary for the proper provision of the Project. Supplier agrees to pay for all Purchaser Property damaged, lost or not otherwise accounted for to Purchaser’s satisfaction. The furnishing to Supplier of any Purchaser Property in connection with this Purchase Order shall not, and shall not be construed to, vest title thereto in Supplier.
14. Insurance. Supplier will obtain and maintain, at its expense, Commercial General Liability Insurance that is primary to any carried by Purchaser, covering liabilities relating to Goods, including but not limited to products and completed operations, and that meets the following requirements: (a) contains a broad form Supplier’s Endorsement; (b) has limits of $1,000,000 per occurrence and $2,000,000 general aggregate combined single limit for bodily injury and property damage (unless a different limit is Specified); (c) is issued by a reputable and financially sound carrier; (d) names Purchaser and its affiliates as additional insureds; and (e) is endorsed to provide that it will not be terminated, cancelled, materially altered or allowed to expire without 30 days prior written notice to Purchaser. Supplier will keep this insurance in effect for at least five years after Goods are last sold to, or Services last performed for, Purchaser, and will furnish Purchaser certificates of insurance evidencing such coverage promptly upon Purchaser’s request. Also, if Supplier will perform Services on Purchaser’s premises, Supplier will maintain (a) Workers’ Compensation insurance in the statutory mandated amounts and Employers Liability insurance with limits of liability of not less than $1,000,000 aggregate, with a waiver of subrogation in favor of Purchaser and its affiliates (where permitted by law), in all states in which the Services will be performed; (b) business automobile liability insurance (including coverage for all owned, non-owned and hired autos, and no fault coverage where applicable) with limits of not less than $1,000,000 per occurrence for bodily injury and property damage combined; and (c) fidelity bond or a similar policy covering employee dishonesty with limits of not less than $500,000 per loss and if providing professional or consulting services. Finally, if Supplier provides professional or consulting services, Supplier will also maintain Professional Liability or Errors and Omissions insurance with limits of not less than $1,000,000 per claim. Purchaser’s approval of any of Supplier’s insurance does not relieve Supplier of any obligations in this Purchase Order, including but not limited to its defense and indemnity, even for claims over Supplier’s policy limits.
15. Confidential Information. Supplier will comply with the terms of any nondisclosure agreement between Supplier and Purchaser (or any of Purchaser’s affiliates) (“NDA”). If no such agreement exists, Supplier and its representatives will (a) keep confidential the terms and existence of this Purchase Order and all information obtained from Purchaser in connection with this Purchase Order that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary and (b) use such information only for the purposes of this Purchase Order. All such information is Purchaser’s exclusive property. Supplier will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Purchaser or any of its affiliates in any manner without prior written authorization. Supplier will not issue press releases or publicity that relate to Purchaser or this Purchase Order or reference Purchaser or its affiliates in any brochures, advertisements, client lists or other promotional materials. Purchaser’s confidential information includes all supplies, blueprints, sketches, drawings, specifications and other technical or commercial information furnished by or developed for Purchaser in connection with the Purchase Order, including work product of Supplier.
16. Independent Contractors; Personnel. Supplier and Purchaser are independent contractors. Supplier has exclusive control over its employees, representatives, agents, contractors and subcontractors (collectively, “Personnel”) and over its labor and employee relations and its policies relating to wages, hours, working conditions and other employment conditions. Supplier is solely responsible for all salaries and other compensation of its Personnel who provide Goods and Services for making all deductions and withholdings from its employees’ salaries and other compensation and paying all contributions, taxes and assessments. Supplier’s Personnel are not eligible to participate in any employment benefit plans or other benefits available to Purchaser employees. Supplier has no authority to bind Purchaser to any agreement or obligation. Supplier will be solely responsible for all theft, damage and/or misconduct related to, and other acts and omissions by, its Personnel. Supplier will not subcontract or delegate any of its obligations under this Purchase Order without Purchaser’s prior written consent. Notwithstanding the existence or terms of any subcontract, Supplier is responsible for the full performance under this Purchase Order and for its subcontractors’ compliance with the terms of this Purchase Order. If Supplier performs Services on Purchaser’s premises, Supplier will (a) abide by all Purchaser’s rules, policies, and procedures, including such matters as safety, security, health, environmental and hazardous material management, misconduct, physical aggression harassment and theft (collectively, “Rules”); and (b) at Purchaser’s request, remove and promptly replace any personnel performing services who behaves in a manner that is unlawful or inconsistent with any Rule.
17. Cancellation and Modifications. Purchaser may terminate or modify all or any portion of this Purchase Order prior to shipment of any Goods or Supplier’s commencement of performance of Services at no charge and without liability by giving Supplier written notice of such termination or change. Purchaser may terminate or modify this Purchase Order for any Goods after shipment and prior to Purchaser’s acceptance of such Goods, and Purchaser will pay only the shipping expenses for returning such Goods to Supplier’s shipping location and incur no further charge or liability. Upon cancellation of a Purchase Order related to Services after Supplier has commenced performance of such Services, Supplier will promptly terminate the Services and Purchaser is only liable to pay for Services performed and liabilities incurred prior to cancellation (except that if the Specified fees are a fixed amount, Purchaser will pay the fee to the extent the Services are complete). Supplier will promptly deliver to Purchaser all deliverables, work product and other items, and all data, reports, summaries, estimates, and any other information or materials as Supplier may have been collected or created in performing Services. Supplier is not entitled to payment under Section 4 until delivery of the foregoing items to Purchaser.
18. Deliverables. If Supplier delivers or is required to deliver to Purchaser any work product in connection with the Services, Purchaser owns, or upon assignment by the creator will own, all right, title and interest (including, but not limited to, all copyrights and any other intellectual property rights) in such work product. The work product has been specially ordered and commissioned by Purchaser as “work made for hire” for copyright purposes. To the extent such deliverable does not so qualify and to the extent such deliverable includes material subject to copyright, patent, trade secret, or any other proprietary right, Supplier hereby assigns to Purchaser, its successors and assigns, all right, title and interest in and to the work product, including all proprietary rights therein. Supplier agrees to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and to do all such other acts and things, as may be requested by Purchaser from time to time to secure and preserve Purchaser’s rights hereunder, or to enforce, defend or confirm Purchaser’s right to exploit those rights.
19. Taxes. Supplier may charge and Purchaser will pay applicable federal, state or local sales or use taxes or value added taxes that Supplier is legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that Supplier provides to Purchaser and Supplier’s invoices state such Taxes separately and meet the requirements for a valid tax invoice. Purchaser may provide Supplier an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, Supplier shall not charge or collect the Taxes covered by such certificate. Supplier will be responsible for all other taxes or fees (including interest and penalties) arising from transactions and the documentation of transactions under this Agreement. Purchaser shall maintain the right to deduct or withhold any taxes that Purchaser determines it is obligated to withhold from any amounts payable to Supplier under this Agreement, and payment to Supplier as reduced by such deductions or withholdings will constitute full payment and settlement to Supplier of such amounts.
20. Successors and Assigns. Supplier will not assign this Purchase Order (in whole or part) without Purchaser’s prior written consent. Any assignment without Purchaser’s consent will be voidable at Purchaser’s option. Subject to the foregoing restrictions, this Purchase Order will be fully binding upon, inure to the benefit of and be enforceable by Supplier, Purchaser and their respective successors and assigns.
21. Applicable Law. This Purchase Order will be interpreted and enforced in accordance with the laws of the State of California without regard to conflicts of laws and excluding the U.N. Convention on the Contracts for the International Sale of Goods. Supplier irrevocably consents to the jurisdiction of the state and federal courts in San Mateo County in the State of California. Supplier waives any objections to jurisdiction and venue in such courts.
22. General. A party does not waive any right under this Purchase Order by failing to insist on compliance with any of the terms of this Purchase Order or by failing to exercise any right hereunder. The rights and remedies of the parties under this Purchase Order are cumulative, and either party may enforce any of its rights or remedies under this Purchase Order or other rights and remedies available to it at law or in equity. If any provision of this Purchase Order is determined by any court or governmental authority to be unenforceable, the parties intend that this Purchase Order be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. Sections 7, 12, 15, 18, and 21 will survive beyond Supplier’s performance under this Purchase Order or termination or cancellation of this Purchase Order for any reason.
23. Supplier Changes. Supplier will provide Mac Cal, Inc. with at least one (1) month’s advance written notice of its intent to: (a) stop supporting, manufacturing, licensing or selling a Good or performing a Service; or (b) make changes to the Goods, including but not limited to design, location of manufacture, manufacturing process or materials, programming or other inputs that would potentially impact the form, fit, function, performance or reliability of the Good. Without limiting the foregoing, Supplier will not ship any such changed Good to Mac Cal, Inc. without Mac Cal, Inc.’s prior written consent.
24. Limitation of Liability. Purchaser is not liable under any circumstances for lost opportunities or profits, or for consequential, incidental, special, punitive or indirect damages of any kind.