DOWNLOAD PURCHASE ORDER STANDARD TERMS AND CONDITIONS
1. PRIORITY OF DOCUMENTS
If Supplier is a party to a master purchasing agreement or other master agreement with The HydraFacial Company (“HydraFacial”), the terms and conditions of any such existing written purchasing agreement (an “Agreement”) shall take precedence over any conflicting provisions in these Standard Terms and Conditions (collectively, the “Terms”). Similarly, if Supplier and HydraFacial are parties to a written statement of work (an “SOW”), the terms and conditions of any such SOW shall take precedence over any conflicting provisions of these Terms in any Purchase Order issued pursuant to the SOW. Except as otherwise expressly provided in any applicable Agreement or SOW, these Terms shall take precedence over any conflicting provision in any acceptance, counter-offer, or other communication by Supplier that purports to modify, supplement, or supersede any of these Terms.
All references herein to a HydraFacial purchase order are to the whole order, including all written specifications and drawings and other documents provided by HydraFacial to Supplier that are attached to or otherwise incorporated into the order, and also including these Terms (collectively, the “Purchase Order”). Except as otherwise provided in any applicable Agreement or SOW, Supplier’s written acceptance (including any conditional acceptance/counter-offer) of any particular Purchase Order, or Supplier’s commencement of performance of the Purchase Order, will constitute Supplier’s acceptance of all the terms of the Purchase Order, including these Terms. In the absence of an applicable existing Agreement and/or an SOW, any Purchase Order that has been accepted by Supplier shall constitute the sole agreement between Supplier and HydraFacial regarding the subject matter thereof and shall supersede all prior arrangements and discussions, both written and oral, among the parties. If Supplier accepts a HydraFacial Purchase Order in a writing that attempts to modify, supplement, or supersede any of these Terms, the language attempting to modify, supplement, or supersede these Terms shall be severed from the acceptance, without affecting the remaining provisions of the acceptance, and the acceptance shall be deemed an unconditional acceptance of HydraFacial’s Purchase Order; provided, however, that a mere request by Supplier to HydraFacial to issue a modified Purchase Order with different or additional terms, to replace a Purchase Order with terms unacceptable to Supplier, shall not be interpreted as an acceptance by Supplier of the original Purchase Order. For example, any new terms proposed in Supplier’s acceptance of a Purchase Order, including without limitation any new terms in Supplier’s bid, price quote, order form, purchase order, billing terms, or any other terms that add to, vary from, or conflict with the terms in the Purchase Order are hereby agreed to be null and void and unenforceable and the terms in the Purchase Order, including these Terms, will constitute the complete and exclusive terms between Supplier and HydraFacial regarding the subject matter thereof. Supplier agrees that its acceptance of HydraFacial’s Purchase Order will create a valid contract binding and enforceable against Supplier and HydraFacial in strict accordance with its terms. The person accepting HydraFacial’s Purchase Order on behalf of Supplier warrants and represents that all necessary and required actions to approve and authorize the acceptance of the Purchase Order by Supplier have been taken and such person is fully authorized and empowered to accept the Purchase Order on behalf of Supplier.
3. TITLE AND RISK
Supplier warrants that it has, or at the time of delivery will have, good and marketable title to all goods and other assets to be delivered by Supplier to HydraFacial under any Purchase Order, free and clear of all liens, claims, and encumbrances, and HydraFacial will receive the goods and other assets from Supplier free and clear of any and all liens, claims, and encumbrances by Supplier or any third party claiming an interest through Supplier. Supplier further warrants that it has full power and authority to accept and fulfill HydraFacial’s Purchase Order in strict accordance with the terms of the Purchase Order, and Supplier’s fulfillment of HydraFacial’s Purchase Order in strict accordance with its terms will not constitute a breach of, or cause Supplier to be in default under, any agreement or course of dealing to which Supplier is a party or by which Supplier is bound. Supplier is not aware of any facts or circumstances which might interfere with HydraFacial’s ownership or full exploitation of the goods or other assets received from Supplier or which would constitute a breach of any of the terms of the Purchase Order. All goods and other assets will be delivered to the F.O.B. point of delivery specified in the Purchase Order at Supplier’s sole expense and risk until received by HydraFacial at such F.O.B. point of delivery. Title to the goods will pass from Supplier to HydraFacial at the point of delivery specified on the Purchase Order or when HydraFacial takes physical possession of the goods, whichever first occurs.
Supplier shall bear the entire burden of and be solely responsible for any sales tax, use tax, excise tax, value-added tax, services tax, consumption tax, and other tax, charge, or duty incurred by or payable by Supplier that is assessed on or measured by the sales price or other consideration received or paid in any sale of goods or other assets by Supplier to HydraFacial – or the performance of any services by Supplier for HydraFacial – in any transaction to which these Terms apply. Supplier shall not collect, or attempt to collect, from HydraFacial any sales tax, use tax, excise tax, value-added tax, services tax, consumption tax, or any other tax or charge or financial liability now or hereinafter enacted, levied, or assessed by any federal, state, local, or other governmental authority, as a result of any sale or other transaction to which these Terms apply, unless required (not merely authorized) by law to do so. Upon request by Supplier, for Supplier’s benefit, HydraFacial shall furnish Supplier with a resale certificate for tangible personal property which is being purchased from Supplier by HydraFacial for resale. Supplier warrants that it is licensed for sales/use or gross receipts tax in all states and other jurisdictions in which Supplier physically conducts business and in which Supplier is domiciled and/or has a place of business. SUPPLIER AGREES TO DEFEND, INDEMNIFY, RELEASE, AND HOLD HARMLESS HYDRAFACIAL AGAINST AND FROM ANY AND ALL CLAIMS BY ANY TAXING AUTHORITY OF ANY NATION, STATE, COUNTY, OR MUNICIPALITY, OR BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY, FOR ANY TAXES OR OTHER SIMILAR CHARGES FOR WHICH SUPPLIER HAS RESPONSIBILITY HEREUNDER.
Supplier will itemize, identify, and list as a separate memo entry on all invoices (not as a line item to be paid by HydraFacial), any sales/use tax, services tax, or other applicable tax amounts that apply to the goods or services provided by Supplier to HydraFacial pursuant to the Purchase Order. Supplier will not incorporate or add any sales tax or other tax in or to any purchase price to be paid by HydraFacial, or create a “tax included” purchase price for goods or other assets sold to HydraFacial, or otherwise take any action to shift the burden to HydraFacial of any tax to be borne by Supplier hereunder. Supplier will comply with all applicable tax laws, registration, and reporting requirements associated with its business.
Each party shall be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.
5. INVOICES AND PAYMENT
Supplier will prepare all invoices under the Purchase Order. Unless otherwise indicated, the price of the goods in the Purchase Order includes packaging, transportation to destination specified, and all applicable duties and taxes (which taxes and duties are in any event the sole responsibility of Supplier). Supplier will show all applicable duties and taxes as separate memo entries on the invoice. HydraFacial will pay undisputed portions of timely invoices no later than sixty (60) days from the date the invoice was received. If an invoice is subject to discount for early payment, such discount period will begin when HydraFacial receives the invoice. If an invoice is submitted later than sixty (60) days after completion of the Purchase Order, unless such late submission is due to force majeure of Supplier, then HydraFacial shall have as long to pay the invoice, from date it was received, as it took Supplier to issue the invoice, from the date the Purchase Order was completed. Payment of an invoice does not constitute inspection and acceptance of goods or cancellation or waiver of HydraFacial’s rights subsequently to contest the amount or correctness of said invoice and to seek reimbursement. In the event of any dispute, HydraFacial may withhold payment of the disputed amount or HydraFacial may pay the disputed amount without waiver of any of its rights, including the right to seek reimbursement. Supplier agrees to not encumber or allow its suppliers, contractors, or subcontractors to encumber HydraFacial’s property or the goods and related services provided under the Purchase Order. HydraFacial’s number for the Purchase Order will be shown on all invoices.
6. INDEPENDENT CONTRACTOR
Supplier is an independent contractor and is not HydraFacial’s agent or representative. Supplier does not have authority to make, and shall not make, any statements, representations, or commitments of any kind for HydraFacial or take any action on behalf of HydraFacial.
7. PRICE, LABOR, AND MATERIALS
HydraFacial will not pay invoices at a higher price than shown on the Purchase Order. Any change must be on a written change order signed by an authorized representative of HydraFacial. If no price is shown on the Purchase Order, Supplier must notify the HydraFacial representative who issued the Purchase Order, and HydraFacial will fill in the agreed upon price on the Purchase Order. Supplier agrees not to fill or compete a Purchase Order until HydraFacial accepts an agreed upon price in writing.
Supplier will furnish at its own expense all labor and materials necessary in the performance of the Purchase Order other than such labor or materials as HydraFacial agrees in writing to furnish.
8. NO WAIVER
No failure on the part of HydraFacial to exercise and no delay in exercising, and no course of dealing with respect to, any right, power, or privilege under the Purchase Order operates as a waiver thereof, or of any other right, power, or privilege under the Purchase Order, nor does any single or partial exercise of any right, power, or privilege under the Purchase Order preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
Time is of the essence. Supplier agrees to comply with a prearranged, specific delivery schedule without any delay and without anticipating HydraFacial’s requirements. On-time delivery is a key metric tracked by HydraFacial and Supplier may lose future orders from HydraFacial if even one delivery is late. Supplier will immediately report delays in shipment to HydraFacial as they become known. HydraFacial reserves the right to cancel the affected Purchase Order and effect cover if Supplier cannot comply with the delivery date(s) indicated on the Purchase Order. HydraFacial may designate a specific carrier to ship the goods to the shipping destination specified in the Purchase Order. If HydraFacial does not specify a specific carrier, Supplier may choose a fully licensed carrier at market rates and Supplier agrees to ensure the carrier obtains and maintains insurance in accordance with government transportation regulations. If Supplier does not ensure carrier has adequate insurance, then Supplier is liable for any loss of or destruction of the goods during shipment. Supplier is responsible for, and at its sole cost will promptly repair, restore, or replace all goods suffering loss, damage, or destruction occurring before Supplier completes delivery of the goods and transfers title to HydraFacial. If delivery dates are not specified on the Purchase Order, Supplier will ship via the least expensive route that meets the delivery deadlines.
HydraFacial may, from time to time, with reasonable notice to Supplier, suspend shipping schedules specified in the Purchase Order or otherwise. If Supplier receives notice that shipping schedules are suspended, Supplier will give reasonable notice to Supplier’s shipper or carrier. Supplier will separately identify the cost of the delivery on its invoice by separate line item.
Supplier warrants from the date of completion of the Purchase Order that all goods provided under the Purchase Order will be in a good and workmanlike manner in accordance with the designs or specifications provided by HydraFacial, free from defects, liens, encumbrances, and claims, and be of good and merchantable quality, and fit and suitable for HydraFacial’s intended purposes.
HydraFacial will accept goods only after (1) they are delivered to the proper location and (2) such goods have been inspected by HydraFacial and are found to be compliant with the Purchase Order and in proper working order. Inspection, test, acceptance, or use of the goods by HydraFacial does not affect Supplier’s obligations under this warranty. Those obligations survive inspection, test, acceptance, and use.
Supplier agrees to promptly replace or correct defects of any goods not conforming to the foregoing warranty without expense to HydraFacial when notified of such non-conformity by HydraFacial. Supplier will, at Supplier’s option (1) repair or replace non-conforming goods; (2) correct any deficiency in quantity; or (3) refund any payments made by HydraFacial for non-conforming or deficient goods. Any repaired, replaced, or corrected goods will have the same warranty as that of the original goods.
In the event Supplier fails to correct defects in goods shipped, replace non-conforming goods promptly, or perform related services in a manner acceptable to HydraFacial, HydraFacial may, after reasonable notice to Supplier, make such correction or effect cover at Supplier’s expense.
Goods not accepted or delivered in error or in excess of the quantity ordered will be held for Supplier’s instruction at Supplier’s risk and, if Supplier so instructs, will be returned to Supplier at Supplier’s expense. HydraFacial has the right at any time to reject or revoke acceptance of goods that fail in any respect to conform to the requirements of the Purchase Order. In the event that HydraFacial has already paid for any goods rejected in accordance with this Article, Supplier will immediately refund the amount paid for such rejected goods to HydraFacial.
Services related to the goods supplied under the Purchase Order and performed by Supplier will be performed with due diligence, in a good and workmanlike manner, using skilled, competent and experienced workmen and supervisors, and in accordance with good industry practices. Any services found incomplete, inferior, inappropriate, or not in compliance with agreed specifications will be corrected by Supplier and re-performed to HydraFacial’s reasonable acceptance without additional cost or risk to HydraFacial for one (1) year after the first performance of the services subsequently found to be unacceptable.
Supplier warrants that it shall comply at all times with all quality standards and requirements of HydraFacial that are a part of the Purchase Order, including all of the terms and conditions of the HYDRAFACIAL QUALITY AGREEMENT (revised November 2020), which is hereby expressly incorporated into these Terms in its entirety by this reference. A copy of the HYDRAFACIAL QUALITY AGREEMENT, if not attached to these Terms as Annex I, will be provided to Supplier upon request. [The HydraFacial Quality Agreement is also available for viewing by Supplier on HydraFacial’s website, www.hydrafacial.com.] Failure by Supplier to comply with the HYDRAFACIAL QUALITY AGREEMENT or to meet other quality standards that are a part of the Purchase Order, or failure to take subsequent corrective action to address quality issues, may result, among other consequences, in HydraFacial canceling existing orders and terminating its relationship with Supplier.
(1) “SUPPLIER GROUP” MEANS SUPPLIER, ITS CONTRACTORS, DIRECTORS, OFFICERS, AGENTS, INSURERS, AND EMPLOYEES, AND SUPPLIER’S SUPPLIERS AND SUBCONTRACTORS AND THEIR CONTRACTORS, AGENTS, INSURERS, AND EMPLOYEES.
(2) “HYDRAFACIAL GROUP” MEANS (a) HYDRAFACIAL; (b) ITS SUCCESSORS AND ASSIGNS; (c) ITS PARENTS, SUBSIDIARIES, AND AFFILIATES OF (a) AND (b); AND (d) THE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INSURERS, AND CONTRACTORS OF (a), (b) AND (c).
B. SUPPLIER AGREES:
(1) TO BE LIABLE FOR ALL LEGAL PROCEEDINGS OR LOSSES OF ANY NATURE WHATSOEVER THAT MAY BE BROUGHT AGAINST, SUFFERED, SUSTAINED, PAID, OR INCURRED BY ANY MEMBER OF THE HYDRAFACIAL GROUP ARISING FROM OR RELATED TO ANY SALE, DISTRIBUTION, OR USE OF ANY PRODUCT OR SERVICE PROVIDED BY SUPPLIER.
(2) TO FULLY DEFEND, INDEMNIFY, RELEASE, AND COMPLETELY HOLD HARMLESS ALL MEMBERS OF THE HYDRAFACIAL GROUP FROM AND AGAINST ALL ACTIONS, SUITS, CLAIMS, DEMANDS, LIABILITIES, DAMAGES, LOSSES, COSTS, AND EXPENSES (COLLECTIVELY “CLAIMS”), INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES (AND ANY OTHER COSTS ASSOCIATED WITH HANDLING OF OR DEFENSE OF ANY SUCH CLAIMS OF ANY KIND) FOR INJURIES TO OR ILLNESS OR DEATH OF MEMBERS OF SUPPLIER GROUP OR FOR DAMAGE TO, LOSS OF, OR LOSS OF USE OF SUPPLIER GROUP’S PROPERTY, TO THE EXTENT SUCH INJURY, ILLNESS, DEATH, LOSS, OR LOSS OF USE ARISES OUT OF SUPPLIER’S PERFORMANCE HEREUNDER AND EVEN THOUGH SUCH INJURY, ILLNESS, DEATH, LOSS, OR LOSS OF USE MAY HAVE BEEN CAUSED IN WHOLE OR IN PART BY HYDRAFACIAL GROUP’S NEGLIGENCE OR FAULT IN ANY DEGREE INCLUDING WITHOUT LIMITATION, STRICT LIABILITY, AND UNDER ANY RULE OR THEORY OF LAW.
(3) TO FULLY DEFEND, INDEMNIFY, RELEASE, AND COMPLETELY HOLD HARMLESS ALL MEMBERS OF THE HYDRAFACIAL GROUP FROM CLAIMS RELATED TO OR ARISING OUT SUPPLIER’S BREACH OF THE TERMS OF THE PURCHASE ORDER, ITS FAILURE TO PROVIDE THE REQUESTED GOODS OR RELATED SERVICES, OR ANY ACT OF NEGLIGENCE, OTHER WRONGFUL ACT, ERROR, OR OMISSION BY ANY MEMBER OF THE SUPPLIER GROUP, EVEN IF SUCH CLAIMS MAY HAVE BEEN CAUSED IN PART BY HYDRAFACIAL GROUP’S NEGLIGENCE OR FAULT IN ANY DEGREE INCLUDING WITHOUT LIMITATION, STRICT LIABILITY, AND UNDER ANY RULE OR THEORY OF LAW.
C. In no event will either HydraFacial or Supplier be subject to liability to the other for consequential damages (including, without limiting the foregoing in any manner, lost profits, lost business opportunities, damages for failure to meet deadlines, and loss of use of equipment) sustained by either HydraFacial Group or Supplier Group.
12. FORCE MAJEURE
If HydraFacial is unable to accept goods or related services because of any cause beyond HydraFacial’s control, except lack of funds, then performance of the Purchase Order will be partially or wholly suspended during the continuance of such causes and the time for performance will be correspondingly extended. HydraFacial reserves the right in such event to cancel the Purchase Order, but in such event, HydraFacial will pay to Supplier all actual direct costs and expenses incurred by Supplier with respect to the Purchase Order prior to date of cancellation. Supplier will be excused from delivery of goods or related services by reason of any cause beyond its control, but only for the duration of such cause. In such event HydraFacial, but not Supplier, may cancel the Purchase Order.
HydraFacial may terminate the Purchase Order at any time, and upon termination, HydraFacial will be relieved of all further obligations under the Purchase Order except for the payment for the unpaid balance of goods or related services provided up to the time of termination plus proper costs incurred by Supplier directly resulting from termination. Notwithstanding the foregoing, and without prejudice to any other remedies HydraFacial may have in law or in equity nothing herein will prevent HydraFacial from setting off any amount owed to Supplier against any loss, damages, liability, costs, or monies owed by Supplier to HydraFacial.
A. Supplier covenants and agrees that it will not at any time during or after the termination of the Purchase Order reveal, divulge, or otherwise make known to any person or use for its own account, any HydraFacial Confidential Information. “Confidential Information” specifically includes, but is not limited to information and data related to HydraFacial’s business, products, systems, product development and marketing plans, agreements, assets, liabilities, costs, revenues, customers, contractors, distributors, employees, data, prospects, operations, business plans, and all other information and data related to HydraFacial’s business and operations, strategies, forecasts, marketing information, research and research programs, processes, and any other information and data disclosed in oral or written form, about and concerning HydraFacial or any of its entities or information that may be proprietary to a third party and in HydraFacial’s confidence and possession pursuant to outstanding contracts and agreements, in any media or manner whatsoever and whether or not labeled “Confidential.”
Supplier agrees to maintain all Confidential Information in strict confidence. Upon termination of the Purchase Order or any renewal or extension thereof, Supplier will return to HydraFacial any and all such Confidential Information and electronic and hard copies thereof as well as any other data or information received from or otherwise relating to HydraFacial in Supplier’s possession and will thereafter not divulge or disclose any Confidential Information acquired from HydraFacial to other persons without the express prior written permission of HydraFacial.
B. Supplier agrees that it will protect and maintain HydraFacial’s Confidential Information under the same safeguards as it treats its own confidential information, but in no event will Supplier use less than reasonable care in protection of HydraFacial’s Confidential Information. Further, Supplier will not use, copy, or disclose the Confidential Information other than for the sole purpose of meeting its duties and obligations under the Purchase Order. The Confidential Information may be disclosed to Supplier’s employees on a need-to-know basis only and will not be disclosed to any person who is not an employee of Supplier without first having obtained HydraFacial’s express prior written permission.
C. Confidential Information will specifically exclude any information that Supplier can show (1) by contemporaneous written records was already known to Supplier prior to its receipt of the information from HydraFacial; (2) was received by Supplier in good faith from a third person not bound by any duty of confidentiality with respect to such information; or (3) has become part of the public domain other than as a consequence of a disclosure by a member of the Supplier Group.
15. TRADE NAMES AND TRADEMARKS
Supplier will not issue any press release, or make any other public disclosure, regarding any Agreement, SOW, or Purchase Order between Supplier and HydraFacial, without first obtaining HydraFacial’s informed written consent. Supplier will not refer to HydraFacial – or use any trade name, logo, or trademark of HydraFacial or any related entity – in any press release, advertising, marketing content, or other materials published or disclosed to third persons by Supplier, without the express prior written consent of HydraFacial’s CEO or COO.
HydraFacial reserves the right to make changes in the drawings, designs, specifications, type, quantity, or quality of goods to be supplied, the time and place of delivery of goods and/or services, and the method of transportation. If such a change is to be made, it will be evidenced in writing by HydraFacial in the form of a change order. Supplier may not make any change in the price, warranty, drawings, designs, specifications, type, quantity, or quality of goods to be supplied, the time and place of delivery of goods and/or services, or the method of transportation without a written change order signed and approved by an authorized representative of HydraFacial.
17. INTELLECTUAL PROPERTY
FOR PURPOSES OF THIS ARTICLE, “INTELLECTUAL PROPERTY RIGHT” MEANS ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT OF A THIRD PARTY. SUPPLIER WARRANTS AND REPRESENTS THAT THE GOODS IN THE FORM DELIVERED TO HYDRAFACIAL, INCLUDING ANY LABELS OR TRADEMARKS AFFIXED THERETO BY OR ON BEHALF OF SUPPLIER AND ANY RELATED SERVICES PROVIDED BY SUPPLIER GROUP, ARE FREE FROM ANY CLAIM OF A THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT. SUPPLIER AT SUPPLIER’S SOLE EXPENSE AGREES TO FULLY DEFEND, INDEMNIFY, RELEASE, AND COMPLETELY HOLD HYDRAFACIAL HARMLESS AGAINST ANY AND ALL ACTIONS, DEMANDS, DAMAGES, LOSSES, COSTS, EXPENSES, LIABILITY, OR LOSS FROM ANY CLAIM OR LAWSUIT FOR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT RESULTING FROM THE MANUFACTURE, SALE, USE, POSSESSION, OR OTHER DISPOSITION OF ANY GOODS OR RELATED SERVICES FURNISHED BY SUPPLIER UNDER THE PURCHASE ORDER. THE INDEMNITIES SET FORTH IN THIS ARTICLE INCLUDE, WITHOUT LIMITATION, PAYMENT AS INCURRED AND WHEN DUE OF ALL PENALTIES, AWARDS, AND JUDGMENTS; ALL COURT COSTS; ATTORNEY’S FEES; AND OTHER REASONABLE OUT-OF-POCKET COSTS INCURRED IN CONNECTION WITH SUCH CLAIMS OR LAWSUITS. HYDRAFACIAL MAY, AT ITS OPTION, BE REPRESENTED BY COUNSEL OF ITS OWN SELECTION, AT ITS OWN EXPENSE. SUPPLIER WILL NOT CONSENT TO AN INJUNCTION AGAINST ANY OF HYDRAFACIAL’S OPERATIONS, THE PAYMENT OF MONEY DAMAGES, THE GRANTING OF A LICENSE, OR THE PAYING OF ANYTHING OF VALUE BY HYDRAFACIAL WITH RESPECT TO RESOLUTION OR SETTLEMENT OF ANY CLAIM OR LAWSUIT WITHOUT THE EXPRESS WRITTEN APPROVAL OF AN AUTHORIZED REPRESENTATIVE OF HYDRAFACIAL.
HYDRAFACIAL MAY NET, SET OFF, OR RECOUP ANY LOSS, DAMAGE, LIABILITY, OR CLAIM THAT HYDRAFACIAL MAY HAVE AGAINST SUPPLIER AGAINST ANY PERFORMANCE OR PAYMENT DUE TO SUPPLIER UNDER THIS OR ANY OTHER CONTRACT BETWEEN THE PARTIES.
18. APPLICABLE LAW
The Purchase Order will be interpreted and construed in accordance with the laws of the State of California, without regard to conflicts of law provisions that would apply the law of another jurisdiction. The parties agree that exclusive venue for trying any action or resolving any dispute arising out of the Purchase Order will be the federal and state courts located in Los Angeles County, California. Supplier waives any right to bring an action hereunder in another state, parish, county, or country. Supplier hereto irrevocably waives any objection it may now or hereafter have to the laying of venue in any of the aforesaid courts and any claim it may now or hereafter have that any such action or dispute has been brought in an inconvenient forum.
Supplier may not subcontract or assign any of its rights or obligations under the Purchase Order without the express prior written consent of HydraFacial. Any subcontract or assignment without that consent will be void and of no effect. HydraFacial may assign all rights in the Purchase Order to any subsidiary or affiliate of HydraFacial at any time or to any third party entity pursuant to a divestiture, merger, sale, transfer, reorganization, or acquisition without notice to Supplier.
Supplier must maintain a complete and correct set of books and records in accordance with generally accepted accounting principles and practice in the industry pertaining to all aspects of the Purchase Order and any applicable Agreement and/or SOW. HydraFacial has the right, upon reasonable notice, to audit the books, accounts, and records of Supplier relating to all goods or related services provided hereunder. In addition, HydraFacial has the right, upon reasonable notice, to audit the books, accounts, and records relating to the provision of any gifts or gratuities furnished by Supplier Group to any employees, agents, or other suppliers of HydraFacial. These audit rights extend until two (2) years after the date of the Purchase Order or the termination or expiration of the Purchase Order, whichever is longer.
21. OWNERSHIP OF DOCUMENTS, DRAWINGS, AND SPECIFICATIONS
Supplier agrees that all drawings, notes, specifications, formulas and formulations, reports, product or process descriptions, test results, and any other documents and materials, whether written, audio, video, or otherwise, developed by Supplier in connection with the Purchase Order (“Documents”) are HydraFacial’s property. However, that information developed by Supplier prior to the receipt of the Purchase Order will remain Supplier’s property. Supplier will provide the original and all copies of the Documents to HydraFacial when provision of all goods or related services ordered under the Purchase Order is completed or earlier upon HydraFacial’s written request. Supplier agrees to assign, and will require its employees, suppliers, and subcontractors to assign, the copyrights for all such Documents to HydraFacial.
22. ENTIRE AGREEMENT
The Purchase Order and any applicable Master Agreement and/or SOW constitutes the entire agreement between HydraFacial and Supplier with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between such parties with respect thereto. There are no representations, warranties, terms, conditions, undertakings, or other agreements, expressed, implied, or statutory, between such parties other than expressly set forth in the Purchase Order and any applicable Master Agreement or SOW. Neither the Purchase Order nor any of the terms hereof, including in the HydraFacial Quality Agreement incorporated herein by reference, may be amended, supplemented, waived, or modified, orally or otherwise, except by written instrument signed by HydraFacial and Supplier. If any one or more provisions of the Purchase Order are determined to be invalid or unenforceable, all other provisions will nevertheless, remain in full force and effect.
Annex 1: HydraFacial Quality Agreement
(revised November 2020)
This Annex I (“Quality Agreement”) sets forth quality-related terms applicable to the goods and services to be provided by Supplier to HydraFacial under the Purchase Order. Supplier agrees to provide the goods or services in full compliance with the provisions of this Quality Agreement except as otherwise specified in the Purchase Order.
This Quality Agreement does not define the specifications for the products or services covered.
2. Quality Management System
Supplier warrants and represents that it has in place a Quality Management System that meets the requirements of this Quality Agreement. If the Supplier has a certified QMS in place Supplier shall provide a copy of the valid registration certificate to HydraFacial.
3. Use of Third Parties
3.1 Directed Procurement
When raw materials are to be used on, applied to, or incorporated into the product(s) provided to HydraFacial, HydraFacial may require Supplier to purchase the raw materials from designated sources only. Material produced/procured outside the USA requires the use of HydraFacial approved sources. Supplier shall provide Raw Material Certificates of Compliance upon request.
Any special processes required by the Purchase Order must be performed by sources that are approved by HydraFacial, and to the latest revision of the applicable process specification.
3.2 Supplier Selected
If Supplier uses a third-party supplier, other than directed procurement, to manufacture or test product(s) to be provided to HydraFacial, Supplier shall apply adequate subcontractor control to ensure that the product(s) meet all HydraFacial requirements.
4.1 Specifications & Contract Review
For some products, at its discretion, HydraFacial may define the specifications for the products included in the Purchase Order. This could take many forms including drawings, reference to commercial specifications, specified brand names, and standards. The specifications may be paper documents, electronic documents or other appropriate media. Supplier shall review all requirements and ensure that all necessary specifications have been provided by HydraFacial, before Supplier accepts the Purchase Order. Supplier shall deliver products and/or services in full conformance to the specifications.
4.2 Environmental Compliance Requirements
Supplier shall ensure that certain regulated or hazardous substances are not present in parts and materials supplied to HydraFacial or, for certain other substances, shall notify HydraFacial if they are present. Since the substance regulations are subject to frequent change, HydraFacial has chosen not to publish an extensive list of restricted substances and exemptions. Rather, HydraFacial has listed some of the key substance laws that impact HydraFacial. Supplier shall ensure that parts and materials supplied to HydraFacial comply with the following laws:
• EU RoHS Directive 2011/65/EU
Supplier is required to provide a declaration of compliance with EU Restrictions on the use of Hazardous Substances (RoHS) for parts supplied to HydraFacial, and is required to reference or include such declaration with each shipment (can be referenced in the Certificate of Compliance). Additional RoHS substance information in support of the declaration may be requested.
• EU Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation (EC) No 1907/2006
If any substance on the REACH Candidate List of Substances of Very High Concern (SVHC) is used in the parts supplied to HydraFacial, Supplier must notify HydraFacial, in writing, of the identity and amount of any SVHC that is present at greater than 0.1% by weight of the part for each Purchase Order.
4.3 Activity by Regulators, Notified Bodies, or Certification Bodies
Supplier shall promptly notify HydraFacial of any inspections, audits, formal visits, etc. of any regulator, Notified Body, or Certification Body acting in a formal capacity. In the US this includes, but is not limited to the FDA, the EPA, the OSHA, and corresponding State Agencies. Supplier shall promptly notify HydraFacial of any inspection or audit findings that affect the safety, effectiveness, conformity, or availability of any product Supplier provides to HydraFacial. With reference to any products or services that Supplier has supplied HydraFacial pursuant to the Purchase Order, HydraFacial will notify Supplier if HydraFacial is initiating a recall or if it makes a report to any regulator, Notified Body or Certification Body acting in a formal capacity including, but not limited to, the FDA, the EPA, the OSHA, and corresponding State Agencies.
5. Change Control
5.1 Change Request
Supplier shall send a change request to HydraFacial for approval whenever there are proposed changes and/or deviations that could affect the products and/or services provided to HydraFacial, so that HydraFacial can determine whether and to what extent the proposed changes and/or deviations may affect the quality, safety, performance, and compliance of the products and/or services.
Supplier shall document the change request including the specific change, the reason for the change, the benefit derived from approving the request, the loss incurred from disapproving the request, and the anticipated lead-time before the change is reflected in the affected products and/or services.
HydraFacial shall make a decision to accept or reject the change within thirty (30) calendar days of acknowledging receipt. For accepted changes, Supplier and HydraFacial will work together to develop a plan to implement the change and determine the effective date of the change. If a change will affect a current or open order, a revised Purchase Order will be provided.
If Supplier desires to deviate from a document, specification, drawing, etc. that is part of an accepted Purchase Order, the Supplier shall submit a written deviation request to HydraFacial that includes the specific deviation, the reason for the deviation, and the period (time, lots, etc.) the deviation will be in effect. Supplier will not deviate from the Purchase Order without HydraFacial’s prior written approval.
6.1 HydraFacial Audits of Supplier Facilities (including third-party supplier’s facilities)
Supplier shall allow HydraFacial, or its authorized representative and Notified/Certification Body, on reasonable notice during regular business hours to perform audits of Supplier’s facilities, systems, documentation, and other requirements related to this agreement. Audits shall be planned and conducted by HydraFacial so as to avoid unnecessary and unreasonable disruptions of Supplier’s regular operations during the audit. This audit requirement shall not apply to Supplier unless and until Supplier has provided, or has agreed to provide, products and/or services to HydraFacial having a total aggregate contract value in excess of $5 million.
6.2 Customer Audit Findings
When conducting audits at Supplier’s location, HydraFacial will issue an Audit Report within fourteen (14) working days of the audit’s conclusion. Supplier shall provide a plan to determine the correction, cause, and corrective action for each finding within thirty (30) calendar days upon receiving the Audit Report.
7. Providing Products or Services
7.1 Work Environment
If environmental conditions could reasonably be expected to have an adverse effect on product quality (of any product ordered by HydraFacial), Supplier shall establish and maintain procedures – including maintenance, adjustment, and inspection – to adequately control these environmental conditions.
Supplier shall keep good records of its compliance with these procedures and shall make those records available to HydraFacial upon request.
If contact between personnel and a product could reasonably be expected to have an adverse effect on product quality (of any product ordered by HydraFacial), the Supplier shall establish and maintain requirements for the health, cleanliness, personal practices, and clothing of personnel to adequately control this contact. Supplier shall provide adequate training for personnel involved in satisfying the requirements of any Purchase Order.
Supplier shall keep good records of its compliance with these contact and training requirements and shall make those records available to the HydraFacial upon request.
Supplier shall ensure that all equipment used in the manufacturing process for products ordered by HydraFacial is appropriately designed, constructed, placed, and installed.
Supplier shall establish and maintain schedules for the adjustment, cleaning, and other maintenance of equipment to ensure that all manufacturing specifications are met.
Supplier shall keep good records of its compliance with these equipment-related requirements and shall make those records available to HydraFacial upon request.
7.4 Automated Processes
If Supplier uses computers, software, or other automated methods as part of the production process, Supplier shall validate the computer software for its intended use. The validation process shall create a validation protocol (describing the planned activities) and a validation report (documenting the outcome of the planned activities). All software changes shall be similarly validated prior to use.
The Supplier shall keep good records of these validation activities and shall make those records available to HydraFacial upon request.
7.5 Monitoring and Measuring Equipment
Page 5 of 5 Purchase Order Standard Terms and Conditions (rev. Nov. 2020)
Supplier shall ensure that all monitoring and measuring equipment used in the manufacturing process for products ordered by HydraFacial is suitable for its intended purposes and is capable of producing valid results. Suitability includes that such equipment meets established standards for accuracy and precision.
Supplier shall establish and maintain schedules for the calibration, adjustment, cleaning, and other maintenance of equipment to ensure that manufacturing specifications are met.
Calibration standards used for monitoring and measuring equipment shall be traceable to national or international standards.
Supplier shall keep good records of these activities and shall make those records available to HydraFacial upon request.
7.6 Packaging Operations
Supplier will pack and package the products ordered by HydraFacial using agreed methods or best practices to protect the products from deterioration or damage during processing, storage, handling, and shipment. Special packaging inserts or inclusions, when required, will be as specified on the Purchase Order.
Supplier shall keep good records of these activities and shall make those records available to HydraFacial upon request.
7.7 Verification of Products
7.7.1 Supplier shall provide a First Article Inspection (FAI) report with each initial production of any new or significantly revised part or product ordered by HydraFacial. The inspection report shall indicate the actual measurement obtained for each characteristic listed on the drawing, parts list and HydraFacial’s manufacturing instructions (when specified on the purchase order). When repetitive dimensions are inspected (i.e. hole of the same size, web thickness of the same size, etc.), Supplier shall record each actual measurement individually, and specify locations. For a First Article Inspection GO or NO GO decision, gauging techniques are not acceptable. A First Article Inspection is required whenever a part or product ordered by HydraFacial has not been in production for a period of one (1) year or longer.
7.7.2 At HydraFacial’s discretion, a source inspector designated by HydraFacial may be present during the FAI. When source inspection is specified on the Purchase Order, Supplier shall provide at least 48 hours’ notice to HydraFacial of the date of performance of this FAI.
7.7.3 Supplier shall provide an amended FAI report for configuration changes, but only for dimensions affected.
7.7.4 When required, Supplier shall perform 100% inspection on all characteristics until the use of sampling plans for this inspection is approved by HydraFacial.
7.7.5 The inspection status of all products shall be clearly identified throughout the manufacturing process and upon delivery to HydraFacial.
7.7.6 Supplier shall immediately report to HydraFacial any discrepancies that may affect products that have already been delivered to HydraFacial.
7.7.7 Upon request, Supplier shall provide a Quality Plan to HydraFacial for approval. The Quality Plan shall address the sequence of manufacturing, processing and inspection operations that are required for products ordered by HydraFacial and shall include the identification of any third-party suppliers that will perform any of those processes.
7.7.8 HydraFacial may perform inspection upon receipt of the products. HydraFacial’s acceptance does not preclude subsequent rejection if a discrepancy or non-conforming condition is found.
7.8 Identification & Traceability
Supplier shall properly identify the products per drawing/specification requirements prior to delivery. When traceability is required, identifying information shall be maintained throughout all manufacturing cycles. A Certificate of Compliance (CoC) or Certificate of Analysis (CoA) shall be included with every lot shipment from the Supplier to HydraFacial. The CoC/CoA shall list all lot numbers of products/items in the shipment.
8. Control of Documentation and Records
8.1 HydraFacial-Provided Documents
Supplier shall maintain control of drawings, parts lists, operation sheets, specifications and other such documents provided by HydraFacial.
8.2 Record Retention
Records required by the Quality Management System will be maintained for a period of 10 years from the date of manufacture of the supplied products and/or services. At the end of required retention period or the termination of this agreement, Supplier shall contact HydraFacial to determine the appropriate disposition of the records.
9. Customer Property
Supplier shall maintain control of all HydraFacial-supplied components, tooling, fixtures and other materials. Any such material that is lost, damaged or otherwise rendered unsuitable for use shall be immediately reported to HydraFacial.
10. Storage and Shipment
Supplier shall establish and maintain procedures to control storage areas for finished goods, raw materials and ingredients to prevent mix-ups, damage, deterioration, contamination or other adverse effects. Supplier shall ensure that all products are stored to facilitate proper stock rotation and that product is retrieved from stock using First In, First Out (FIFO) methodology.
Supplier shall ship products to HydraFacial using agreed shipping methods as stated on the Purchase Order to prevent damage or deterioration of the products.
11. Non-Conforming Material
Supplier shall segregate, investigate, and promptly dispose of all nonconforming material. Supplier is authorized to make rework and scrap dispositions without HydraFacial’s authorization. Concession or repair dispositions require HydraFacial’s written authorization.
If Supplier requests authorization for a repair or concession disposition, Supplier shall document the disposition request including the inspection or test conducted, the actual results, and, if applicable, the proposed repair.
12. Corrective Action
HydraFacial may initiate corrective action for Supplier when HydraFacial identifies a nonconformity after receipt of Supplier’s product. Supplier shall initiate corrective action upon receipt of HydraFacial’s initiation. The Supplier’s corrective action shall include the following steps:
• Determining the cause(s) of nonconformity
• Evaluate the need for action to ensure the nonconformity doesn’t recur
• Determine the action needed to prevent recurrence
• Implement the action needed to prevent recurrence
• Review the effectiveness of the corrective action
Supplier shall report the results of the corrective action to HydraFacial within the time frame specified in HydraFacial’s Supplier NCMR Form. Supplier shall keep good records of these activities and shall make those records available to HydraFacial upon request.
13.Customer Complaint Handling
Supplier shall have a documented process for receiving and processing customer complaints. When HydraFacial receives a customer complaint related to products or services supplied by Supplier and which requires Supplier’s participation, HydraFacial will contact Supplier, and Supplier shall conduct the investigation. Supplier shall document any complaints received from HydraFacial and shall investigate and resolve them in accordance with this process. Records of complaint handling shall be retained by the Supplier and shall be made available to HydraFacial upon request.