a) Seller will deliver the Goods in the quantities and on the date or dates specified in the Order or as otherwise agreed in writing by the parties (“Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Masimo may terminate the Order immediately by providing written notice to Seller, and Seller will indemnify Masimo against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Masimo has the right to return or store any Goods delivered more than one (1) week before the Delivery Date at Seller’s expense, and Seller will redeliver such Goods on the Delivery Date.
b) Seller will deliver all Goods to the address specified in the Order (“Delivery Point”) during Masimo’s normal business hours or as otherwise instructed by Masimo. Seller will pack all goods for shipment according to Masimo’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Masimo prior written notice if it requires Masimo to return any packaging material. Any return of such packaging material will be made at Seller’s risk of loss and expense.
c) Seller will provide the Services to Masimo as described and in accordance with the schedule stated in the Order or as provided by Masimo with the Order and in accordance with these Terms.
d) Seller must notify Masimo immediately if Seller becomes aware of any event or impediment that could result in the delay of the Goods or Services,
e) Seller acknowledges that time is of the essence with respect to Seller’s obligations under the Order and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones, and other requirements in the Order.
If Seller delivers more than or less than the quantity of Goods ordered, Masimo may reject all or any the Goods. Any such rejected Goods will be returned to Seller at Seller’s sole risk and expense. If Masimo does not reject the higher quantity of Goods and instead accepts the delivery of them, the Price for the Goods will be adjusted on a pro-rata basis such that Masimo need not pay any more for the Goods than the total originally stated in the Order.
Unless a different shipping term is specified in the purchase order, Delivery will be made DDP Delivery Point (Incoterms® 2010). The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Order. Each package will be marked with handling instructions, shipping information, Order number, and part or item number in the package, and each shipment must contain an itemized packing list. Masimo may reject any shipment not meeting these requirements.
a) Masimo or Masimo’s representative will have the right to verify at the source of shipment that the Goods or Services conform to the Order requirements. Any audit, inspection, or test made on the premises of the Seller or its supplier will be without additional charge to Masimo. The Seller will provide all reasonable facilities and assistance for the safety and convenience of the auditors/inspectors in the performance of their duties. All audits, inspections, and tests on Seller’s premises or its supplier’s premises will be performed in such a manner as not to unduly delay or interfere with Seller’s operations. The results of any audit, inspection, or test will not be used by Seller as evidence of effective quality control or otherwise meeting the standards in the Order and will not relieve Seller of the responsibility to provide acceptable Goods nor preclude subsequent rejection by Masimo. Payment before inspection will not be deemed acceptance of nonconforming Goods or Services.
b) Despite any audit, inspection, or test performed before delivery of the Goods or Services to the Delivery Point, Masimo has the right to inspect the Goods on or after the Delivery Date. Masimo, at its sole option, may inspect all or a sample of the Goods and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Masimo rejects any portion of the Goods, Masimo has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price agreed upon by Seller; or (c) reject the Goods and require replacement of the rejected Goods. Masimo may reject an entire lot of Goods for failure to meet its quality standards based on statistical sampling using any reasonable acceptance sampling standard. If Masimo requires replacement of the Goods, Seller will, at its expense, within 15 days replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Masimo may replace them with goods from a third party and charge Seller the cost of the replacement goods and terminate the Order for cause. Any inspection or other action by Masimo under this section will not reduce or otherwise affect Seller’s obligations under the Order, and Masimo will have the right to conduct further inspections after Seller has carried out its remedial actions.
a) Subject to the below, the price of the Goods and Services is the price stated in the Order (“Price”), and if no price is included in the Order, the Price will be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, VAT, GST, or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Masimo.
b) Seller warrants that the price charged to Masimo by Seller for the Goods and Services is the same or lower than the price paid by Seller’s other customers that are buying the same goods and services, at the same or lower quantities, in the same timeframe, and under similar terms and conditions as Masimo. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods and Services under the Order or refund the difference to Masimo within 30 days after Seller becomes aware that Masimo paid a higher price.
a) before the date on which the Services are to start, obtain, and at all times while the Services are being performed, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
b) in the performance of the Services, while on Masimo’s premises, and while using Masimo’s equipment, tools, or materials, comply with all rules, regulations and policies of Masimo, including security procedures concerning systems and data and remote access to them, building security procedures, including the restriction of access by Masimo to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
c) maintain complete and accurate records relating to the provision of the Services under the Order, including records of the time spent and materials used by Seller in providing the Services in a form reasonably acceptable to Masimo. While providing the Services and for a period of two (2) years thereafter, upon Masimo’s written request, Seller will allow Masimo to inspect and make copies of any records regarding the provision of the Services;
d) obtain Masimo’s written consent, which may be withheld for any or no reason, before engaging any third party person or entity, including any subcontractors and affiliates of Seller, to provide any of the Services to Masimo (each approved subcontractor or other third party, a “Permitted Subcontractor”). Masimo’s approval will not relieve Seller of its obligations under the Order, and Seller will remain fully responsible for the performance of each Permitted Subcontractor with all of the terms and conditions of the Order as if Seller performed the Services itself. Nothing contained in the Order will create any contractual relationship between Masimo and any Seller subcontractor or other third party;
e) require each Permitted Subcontractor to agree in writing to the confidentiality provisions in the Order, and, upon Masimo’s request, to enter into a further non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Masimo;
f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
g) ensure that all of Seller’s equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and other standards specified by the Masimo; and
h) keep and maintain any equipment provided by Masimo in Seller’s possession in good working order and will not dispose of or use the equipment other than for the purpose for which it was provided and in accordance with the Masimo’s written instructions or authorization.
Masimo may, at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller will within five (5) business days of receipt of a Change Order submit to Masimo a firm cost proposal for the Change Order. If Masimo accepts the cost proposal, Seller will proceed with the changed services subject to the cost proposal and the terms and conditions of the original Order. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under the Order.
a) Seller warrants to Masimo that all Goods will:
(i) be free from any defects in workmanship, material, and design;
(ii) conform to all applicable descriptions, specifications, drawings, designs, samples, and other requirements specified by Masimo or provided by Seller to Masimo and accepted or understood to be representative of the Goods by Masimo;
(iii) be fit for their intended purpose and operate as intended;
(iv) be merchantable;
(v) be free and clear of all liens, security interests, or other encumbrances; and
(vi) not infringe or misappropriate any third party’s patent or other intellectual property rights.
These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Masimo and will run to Masimo’s successors, assigns, customers, and end-users.
b) Seller warrants to Masimo that it will perform the Services using personnel of required skill, experience and qualifications, and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under the Order.
c) The warranties set forth in this Section 12 are cumulative and in addition to any other warranty provided by law or equity. If Masimo gives Seller notice of noncompliance pursuant to this Section 12, Seller will, at its own cost and expense, within 30 days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Masimo, and, if applicable, (ii) repair or re-perform the applicable Services.
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