Terms and Conditions

FORTREA INC. TERMS AND CONDITIONS OF PURCHASE

as of 15 November 2023

These Terms and Conditions of Purchase (these “Terms”) govern any purchase orders indicating that these Terms apply (each, as applicable, an “Order”), issued by Fortrea Inc. or any of its Business Groups (as defined below) (such issuing party hereinafter referred to as the “Customer”), pursuant to which Customer is purchasing from the party designated as the vendor on the Order (“Vendor”) the products described in the Order (hereinafter, the “Products”).

THE PURCHASE OF ANY PRODUCTS BASED ON AN ORDER ISSUED BY CUSTOMER IS SUBJECT TO AND CONDITIONAL UPON VENDOR’S ACCEPTANCE OF THESE TERMS.  ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY VENDOR (INCLUDING WITHOUT LIMITATION ANY TERMS CONTAINED IN OR ATTACHED TO VENDOR’S QUOTE, ORDER CONFIRMATION, OR INVOICE) ARE EXPRESSLY OBJECTED TO BY AND WILL NOT BE BINDING UPON CUSTOMER, UNLESS SPECIFICALLY APPROVED IN WRITING BY CUSTOMER.

These Terms are deemed incorporated by reference into each Order, but to the extent there are any conflicts between the Order itself and the Terms below, the Order itself shall control.

A “Business Group” of Customer means any (i) affiliate or subsidiary wholly-owned by Customer, or (ii) limited liability company, partnership, joint venture, or other entity in which Customer has an ownership interest.

1.  Purchase Order Acceptance, Cancellations, and Changes. Vendor shall promptly provide Customer with notice of Vendor’s acceptance or rejection of each Order.  An Order may be accepted by Vendor by any reasonable indication of acceptance.  Vendor agrees to supply Products to Customer in accordance with the terms of each accepted Order.  Customer may cancel all or any portion of an Order for non-custom Products at any time prior to shipment by Vendor.  Customer may reschedule delivery of the Products under an Order in whole or in part at no additional charge, provided notice is given prior to the shipment date.  Vendor agrees to use reasonable efforts to accommodate any changes to a particular Order requested by Customer. 

2.  Shipping; Delivery; Title; Risk of Loss; Shelf Life.

a.  Shipping.  Vendor shall ship Products to the Customer’s location indicated in the Order. Shipment shall be made Duty Delivery Paid. Vendor shall bear all shipping cost(s) to deliver Products to Customer at Customer’s location. No additional shipping costs, handling charges or associated fees will be charged to Customer (such as expedited shipment, special handling, refrigerated shipment, and/or hazardous materials/DOT shipment fees) unless expressly agreed upon by Customer. Vendor acknowledges and agrees that in fulfilling each Order it shall be the exporter of record and U.S. Principal Party in Interest as set forth in Section 26.

b.  Delivery.  Customer will notify Vendor if Customer has any specific delivery requirements, and Vendor agrees to comply with such delivery requirements.  Vendor acknowledges that time is of the essence with respect to delivery of each shipment of Products on or before the delivery date set forth in each accepted Order. Without limiting Customer’s rights and remedies, if, for any reason, Vendor cannot or will not deliver any Products on or before the requested delivery date, then Vendor shall immediately notify Customer and Customer may, in its discretion, terminate the related Order without liability.

c.  Title; Risk of Loss. Title shall pass to Customer upon Customer’s acceptance of Products at Customer’s location. Risk of loss of all Products shall remain with Vendor until receipt and acceptance of the Products by Customer at Customer’s location. 

d.  Required Shelf Life.  At the time of delivery, all Products supplied under the Order shall have at least nine (9) months remaining shelf life if the original shelf life indicated on the package or associated with the Product is one (1) year or more, and, at least six (6) months remaining shelf life if the original shelf life on the package or associated with the Product is less than one (1) year.

e.  Advance Approval of Changes. Vendor shall give Customer at least one hundred and twenty (120) days prior written notice of any changes in Products from Products previously supplied, including, without limitation, any change in Product specifications, significant change in materials, kit reagents, manufacturing processes, Vendor’s Instructions for Use (IFU) or changes to the package insert or test methods relating to the Products.

3.   Returns.  Customer may return non-custom Products within the warranty period for any reason for a full refund (other than shipping charges), and no restocking charge will apply.

4.  Product Recalls.  In the event any Products or any component thereof are recalled by Vendor, the manufacturer, a distributor or any other entity in Vendor’s supply chain for the Products or any components thereof, or any governmental agency, Vendor shall reimburse Customer for all costs associated with such recall, including without limitation the cost to replace the recalled Products with equivalent products at the same price as the recalled Products, shipment costs, costs to validate any replacement products, reasonable associated labor costs and costs to re-run any tests performed using Products subject to a recall, and costs associated with generating and sending corrected reports. Vendor shall promptly notify Customer in writing if Vendor receives a warning letter or other notice of noncompliance from the Food and Drug Administration or an equivalent governmental agency or other regulatory body of any other jurisdiction, during the period between its acceptance of the Order and two (2) years after delivery of all Products under the Order which relates to any Product sold under the Order.

5.  Pricing; Invoicing; Payment.

a.  Pricing.   The total price for the Products supplied shall be the amount designated in the Order.  Vendor hereby represents to Customer that the prices charged to Customer are the lowest prices charged by Vendor to any current customer of Vendor who is purchasing the same or less volume of Product as Customer.

b.  Submission of Invoice.   All Vendor invoices must be submitted to Customer within ninety (90) days of the close of the applicable month in which Products were shipped to Customer.  Customer shall have no obligation to pay for invoices submitted beyond this ninety (90) day period. If Vendor is unable to meet the e-commerce provisions of Section 6 below, invoices will be mailed to Customer at its address as reflected on the Order.

c.  Payment.  All invoices shall include a reference to Customer’s applicable Order number.  Customer shall make payment in accordance with agreed payment terms in the Purchase Order.  Customer is taxable based on the shipment destination and all applicable local/state/country taxes are the responsibility of Customer.  In those jurisdictions where Vendor collects local/state/country sales taxes, Vendor will add these taxes to the invoices and remit to the appropriate taxing authority.  In those countries or states where Vendor collects sales tax, VAT or GST, Vendor will add the taxes to the invoice and remit to the appropriate taxing authority.  In the event Vendor submits to Customer invoices at prices lower than those previously agreed to in the Order, then Customer’s sole responsibility shall be payment of the lesser of the invoice amount or the amount in the Order.  Invoices shall be paid in the currency of the shipment destination (i.e. U.S. dollars for Products delivered to any U.S. destination and in the currency of the country of shipment destination for products delivered in countries outside the U.S.). Vendor acknowledges that reimbursement for any travel expenses will be subject to Customer’s then-current travel policy, and all expenses must be approved in advance, in writing, by Customer in order for Vendor to be entitled to reimbursement.

6.  Electronic Transmission of Documents.  Vendor and Customer acknowledge the efficiency of automated ordering, invoicing and payment.  Both parties desire to automate certain operations for purchase and sale transactions (“Transactions”) by transmitting and receiving documents electronically (hereinafter called “Documents”) in substitution for conventional paper-based documents, and the parties agree to do so at their own, individual expense.  Examples of Documents which may be transmitted include: Vendor Bulletins; Catalogues; Orders; Acknowledgments; Modifications to Orders; Ship Notices; Invoices; Schedule Changes; and Change Orders. For example, Vendor agrees to accept Orders from Customer’s ERP system.  Any signed Document transmitted through e-commerce shall constitute an “original” when printed from electronic files or records established and maintained in the normal course of business.  The parties further agree not to contest the validity or enforceability of signed Documents under the provisions of any applicable law relating to whether certain agreements are to be in writing and signed by the party to be bound thereby.

7.  Inspection.  All Products furnished under the Order will be subject to Customer’s inspection and approval within ninety (90) days of delivery, irrespective of payment date.  Customer shall have a reasonable period of time to submit claims relating to count, weight, quantity, loss or damage to delivered Products.

8.  Warranties.  Vendor represents and warrants that all Products furnished by Vendor (i) will be free from defects in materials and workmanship and will be in full conformity with Vendor’s specifications; (ii) shall not be adulterated or misbranded within the meaning of the U.S. Food, Drug, and Cosmetic Act, or an equivalent law of any other jurisdiction if applicable; (iii) will be fit for Customer’s intended use provided Vendor has reason to know of such use; (iv) will have clear and good title, free and clear from all liens, claims and encumbrances; (v) will comply with all applicable laws and regulations; and (vi) will be labeled and packaged in accordance with industry standards and any instructions provided by Customer.  Vendor’s warranty with respect to clause (i) of the preceding sentence will continue (1) with respect to equipment, for the longer of Vendor’s specifications or twelve (12) months from delivery; or (2) with respect to consumables and other Products, until the expiration of the applicable shelf-life required under Section 2.d. hereof.  Vendor represents and warrants to Customer that it has investigated the design specifications for all Products to determine if any of the Products (or the possession or use thereof) infringe or misappropriate the patent, trade secret, trademark, copyright or other intellectual property rights of any third party, and has determined that, and hereby represents and warrants to Customer that, the Products and the possession and use thereof by Customer (including without limitation the use of any process, patents or technology described in the labeling, package insert, manufacturer’s specifications, or instructions), does not and will not infringe, misappropriate, or otherwise violate any patent, trade secret, trademark, copyright or other intellectual property rights of any third parties.  Vendor hereby represents and warrants that it shall (x) at all times, maintain all the consents necessary to carry out its obligations under these Terms; and (y) maintain adequate procedures designed to prevent the breach of any laws or regulations by its employees and agents.

9.  Indemnification.  Vendor agrees to defend, indemnify, and hold Customer (including its Business Groups) and its/their directors, officers, employees, agents, sponsors and customers (the “Customer Indemnitees”) wholly harmless from and against all damages, losses, liabilities, obligations, judgments, settlements, governmental fines, penalties, costs and expenses, including reasonable attorney fees incurred by any of the Customer Indemnitees arising from any claim, demand, lawsuit, or other action made or brought against any of the Customer Indemnitees by any third party that is caused by or attributable to (a) Vendor’s breach of these Terms (including without limitation any of its representations or warranties in these Terms), (b) the failure of a Product to function in accordance with the Product’s written specifications, (c) any negligence or willful misconduct of Vendor, (d) any actual or alleged infringement (including without limitation direct or indirect, joint or divided, and whether or not willful, as the case may be) misappropriation, or violation of any patent, trade secret, trademark, copyright or other intellectual property rights of any third parties based on the Products or Customer’s use of the Products (including without limitation the use of any process, patents or technology described in the labeling, package insert, manufacturer’s specifications, or instructions), or (e) any other liability resulting from Customer’s use of the Products.  However, the foregoing rights to indemnity shall not apply to the extent that such claim results from Customer’s breach of these Terms, or Customer’s modification of any Product of Vendor without Vendor’s permission.  In the event of a lawsuit or other action in connection with which Customer is seeking indemnification from Vendor hereunder, Customer agrees to give timely notice of the lawsuit or action to Vendor and to cooperate with Vendor in the defense of the lawsuit or action (at Vendor’s expense).

10.  Insurance.  Vendor hereby represents that it has, at its sole cost and expense, obtained and will maintain in full force and effect, until delivery of all Products under the Order, policies of insurance written by licensed insurers having a Best’s rating of at least A- VII. Vendor agrees to deliver certificates of insurance, on or before the date of acceptance of the Order, and within ten (10) days of the renewal of a policy term, confirming the following: (i) Commercial General Liability insurance, covering bodily injury, death, property damage, personal and advertising injury in an amount not less than One Million U.S. Dollars ($1,000,000) per occurrence and Two Million U.S. Dollars ($2,000,000) in the aggregate, including coverage for product liability, premises, completed operations, and contractual liability. Customer shall be identified as additional insured. Vendor and its insurers waive all rights of subrogation against Customer; (ii) Workers’ Compensation insurance in statutory amounts and Employers’ Liability insurance in an amount not less than Five Hundred Thousand U.S. Dollars ($500,000) per accident; and (iii) Professional Liability or Errors and Omissions insurance, in an amount not less than One Million U.S. Dollars ($1,000,000) per claim. Vendor agrees that none of the foregoing coverage shall be cancelled or materially altered without at least thirty (30) days prior written notice to Customer.  Vendor may satisfy required limits with a combination of primary and umbrella / excess policies; all deductibles or retentions are the responsibility of Vendor. Where Customer is an additional insured, coverage shall be primary and non-contributory with respect to any insurance which Customer may carry, and shall contain a “separation of insureds” or “severability of interests” provision. Additional insured and waiver of subrogation shall apply to Customer and its subsidiaries, affiliates, officers, directors and employees. If any of Vendor’s insurance is “claims made”, coverage shall include a retroactive date no later than the date of acceptance of the Order and shall be maintained, or an extended reporting period shall be purchased, for at least three (3) years following either the termination of the Order or the delivery of all Products under the Order, whichever is later. Vendor’s liability to Customer shall not be limited by the coverage required herein. Customer’s failure to monitor compliance with the requirements herein does not represent a waiver of such requirements.

11.  Force Majeure.  Neither party shall be liable for any delays in the performance of its obligations under the Order due to any act or cause beyond the reasonable control and without the fault of such party, including without limitation acts of God such as flood, tornado, earthquake; acts of government (i.e., civil injunctions or enacted statutes and regulations); or acts or events caused by third parties such as riot, strike, power outage or explosion; or the inability due to any of the aforementioned causes to obtain necessary labor or materials (a “Force Majeure Event”).  A party experiencing a Force Majeure Event shall provide the other party with prompt written notice of such Force Majeure Event, and use commercially reasonable efforts to resolve any delay caused by such Force Majeure Event.

12.  Confidentiality.

a.  Definition.  For the purpose of this Section 12, “Confidential Information” means the terms of each Order, any amounts payable under the Order, and all information (whether oral, written or in electronic or any other form) belonging to or relating to Customer, its business affairs or activities (including information concerning any trade secrets, intentions or business plans of Customer) which is marked or stated to be confidential or which due to its character or nature, a reasonable person in a like position and under like circumstances would treat as and/or reasonably believe to be confidential. 

b.  Restrictions.  Vendor agrees that Vendor will not use any Confidential Information for any purpose other than for performance of its obligations under the Order, and Vendor will not disclose or otherwise make available any Confidential Information to any third party without the written consent of Customer.  Vendor will treat Customer’s Confidential Information with the same degree of care as if it were its own proprietary information. All persons receiving Confidential Information on behalf of Vendor under the Order shall be subject to written obligations of confidentiality and non-use consistent with the obligations set forth herein.  The restrictions on use and disclosure of Confidential Information set forth in this Section 12 shall become effective upon Vendor’s acceptance of the Order and remain in effect thereafter (1) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for so long as such Confidential Information retains its status as a trade secret, and (2) with respect to Confidential Information that does not rise to the level of a trade secret under applicable law, for a period of five (5) years following the delivery of all Products under the Order. Vendor agrees to comply with all applicable data privacy laws, rules, and regulations. Upon the request of Customer, Vendor shall promptly either: (i) return Customer’s Confidential Information and provide certification that all such Confidential Information has been returned; or, with Customer’s prior consent, (ii) destroy such Confidential Information and provide certification that all such Confidential Information has been destroyed.

c.  Exceptions.   The obligations set out in this Section 12 shall not apply to Confidential Information that Vendor can reasonably demonstrate: (i) is or has become publicly known other than through breach of this Section 12; (ii) was in the possession of Vendor prior to disclosure by Customer; or (iii) was received by Vendor from an independent third party who is not subject to an obligation of confidentiality to Customer.  The restrictions on disclosure also shall not apply to the extent the Confidential Information is required to be disclosed by a governmental authority, provided that Vendor gives Customer prompt written notice of the requirement and cooperates with any efforts of Customer to limit such disclosure.

d.  Duty to Report. Vendor shall immediately notify Customer of any breach of its obligations under this Section 12, regardless of whether Vendor deems such breach to be immaterial.

e.  Equitable and Injunctive Relief. Vendor acknowledges that its breach of this Section 12 may cause irreparable damage, and, therefore, Customer shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with any breach hereof.

13.  Non-Exclusivity.  Customer shall not be precluded from making purchases of the same or similar products from any other supplier. 

14.  Performance; Remedies.

a.  Technical Problems.  For purposes of the Order, “Technical Problems” means deficiencies related to quality, availability and/or shipment of Products, including without limitation inconsistent shipments, and Products that do not meet package insert claims or performance specifications as published in the manufacturers’ publications.  In the event that Technical Problems are identified, Customer will notify Vendor of the problem by telephone or electronic communication, and Vendor will, within the course of five (5) days thereafter, develop an action plan to promptly correct the Technical Problem and deliver this, in writing, to Customer.

b.  Remedies.  In the event Vendor (i) supplies any defective or nonconforming Products hereunder (including without limitation damaged Products or Products not in compliance with the Order, product specifications, or any Product warranties hereunder), or (ii) fails to timely supply conforming Products hereunder, Customer may, at its option: (a) receive from Vendor a discount for such non-conforming Products (in an amount to be agreed upon by the parties); (b) terminate the Order or any part thereof; (c) reject and return (or destroy, at Vendor’s request) such Products and charge Vendor all costs and expenses related to the shipment and return; (d) cover and charge Vendor for any loss and costs incurred; or (e) require Vendor to replace or otherwise correct, without expense to Customer, any such Products. If Customer has already paid for the Product and Customer does not wish to receive a replacement Product, then Customer shall receive, at its option, either a full refund or credit against future purchases.  If Customer requests a replacement Product, then Vendor shall send a replacement Product on an expedited basis at Vendor’s expense.  No limit on time to return will apply to defective Products unless agreed by Customer in writing.  All rights and remedies stated herein shall be in addition to any rights and remedies provided by law, and shall survive inspection, test, acceptance and payment.

15.  Use of Name.  Vendor agrees that it shall not use Customer’s name or trademarks or mention or describe any Order or its relationship with Customer in any press release, advertising, marketing, or promotional materials, or other publications or public disclosure without Customer’s prior written consent. 

16.  Change in Law or Regulation.  Should either party reasonably conclude that any portion of the Order or these Terms is or may be in violation of any applicable law, including any changes to applicable law made after acceptance of the Order by federal, state, local or other jurisdictional authorities, or if any such change or proposed change would (a) materially alter the amount or method of compensating Vendor for Products purchased by Customer, (b) increase the cost of Vendor's performance hereunder, (c) increase Customer’s cost to perform services using the Products, or (d) decrease the amount Customer is reimbursed or otherwise compensated for such services using the Products, the parties agree to negotiate written modifications to the Order as may be necessary to establish compliance with such legal requirements and/or to reflect applicable changes in compensation necessitated by such legal requirements.

17.  Audit.  Vendor shall maintain accurate and complete records relating to its compliance with its obligations under the Order and these Terms, including without limitation the “most favorable pricing” commitment in Section 5.a.  During the period between Vendor’s acceptance of the Order and five (5) years after final payment by Customer, Vendor shall permit Customer or its agents, on a confidential basis, to audit, and receive copies of, Vendor’s records relating to its compliance with its obligations under the Order.  Such audit shall be conducted upon at least ten (10) days’ prior notice, during regular business hours.  Vendor shall grant Customer, upon Customer’s request, access to Vendor’s facilities in connection with any such audit for the purpose of assessing Vendor’s compliance with applicable law and these Terms. 

18.  Assignment and Customer’s Business Groups.  Neither party shall assign or transfer its rights or obligations under the Order without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that Customer shall have the right to extend its rights under the Order to its Business Groups. 

19.   Amendment; Waiver.  With respect to an Order that has already been accepted, these Terms may not be amended or modified except by written agreement of both parties.  With respect to future Orders, Customer reserves the right to amend or modify these Terms at any time in its sole discretion by posting to its website or otherwise making such amended or modified terms available, in which case such amendments or modifications will apply to all subsequent Orders accepted by Vendor.  No course of dealing between the parties or any delay on the part of either party in exercising any rights they may have under an Order shall operate as a waiver of any of the rights of the other party.  No express waiver shall affect any condition, covenant, rule, regulation, right or remedy other than the one specified in such waiver and only for the time and in the manner specifically stated.

20.  Independent Relationship.  None of the provisions of the Order or these Terms are intended to create, nor shall be deemed or construed to create, any relationship between Vendor and Customer other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of the Order.  Neither of the parties, nor any of their respective employees shall be construed to be the agent, employer or representative of the other.

21.  Headings.  The headings in these Terms are for convenience and reference only and are not intended to, and shall not, define or limit the scope of the provisions to which they relate.

22.  Enforceability; Severability. The invalidity or unenforceability of any term or provision of these Terms in any jurisdiction shall not affect the validity or enforceability of any of the other terms or provisions in that jurisdiction or of the entire Order in any other jurisdiction.  If any provision is held invalid by a court of competent jurisdiction, such shall be severed and these Terms shall be interpreted as though the severed provision had not existed.

23.  Notices.  Any notice required to be given pursuant to the terms and provisions hereof shall be in writing and shall be sent by certified or registered mail, or by express delivery service (such as Federal Express) where the recipient must execute its receipt, to the other party at the address for such party reflected on the Order, or to such other address as such party may hereafter designate in writing.

24.  Vendor Subcontractors. Vendor agrees that it shall not engage any entity or individual that is not an employee of Vendor (a “Subcontractor”) to perform any portion of its obligations under the Order unless Vendor has received Customer’s prior written authorization.  Vendor shall ensure that each Subcontractor executes an agreement in which such Subcontractor agrees to be bound to all of the obligations described in the Order, to the extent of the work to be performed by Subcontractor for the benefit of Customer, and naming Customer as a third party beneficiary of such agreement.  Vendor shall provide Customer with copies of such agreement(s) upon request by Customer.  Notwithstanding the foregoing, Vendor shall remain responsible for the provision of the Products and services in accordance with the Order.

25.  Ethical Labor and Anti-Human Trafficking Requirements. 

a. Requirements. Customer has adopted and implemented a policy regarding Ethical Labor and Anti-Human Trafficking. In furtherance thereof, Vendor and Vendor employees represent and warrant that they shall not:

1. Engage in forms of trafficking in persons, procure commercial sex acts, or use forced labor or unlawful child labor in the performance of these Terms;

2. Destroy, conceal, confiscate, or otherwise deny access by an employee to the employee’s identity documents, such as passports or drivers’ licenses;

3. Use misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose basic information in a format and language accessible to the worker, or making material misrepresentations during the recruitment of employees regarding key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions and housing, any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work;

4. Use recruiters that fail in any way to comply with local labor laws of the country in which the recruiting took place;

5. Use recruiters that charge recruiting fees to employees;

6. Provide or arrange housing that fails to meet the host country and safety standards;

7. Fail to provide a written employment contract, recruitment agreement, or similar work paper, if required by law or contract, in the employee’s native language at least five (5) days before the employee parts from his or her country of origin; or

8. Fail to provide or reimburse return transportation costs upon the end of employment for employees who were brought into a country for the purpose of performance of these Terms.

b. Vendor Cooperation. Vendor shall cooperate with Customer and participate in any investigations, audits, or other reviews resulting from an alleged violation of the representations made above, whether formal or informal, as reasonably requested by Customer, or its designees. Such cooperation does not require the waiver of (i) any existing attorney-client privilege by Vendor or (ii) any right of Vendor, or any of Vendor’s officers, principals, owners, employees or agents, not to self-incriminate.

c.  Violations.  Consequences of violations of this Section 25 may include, but are not limited to reduction in benefits or immediate termination of the Order.

26.  Global Compliance Warranties. 

a. Compliance with Law. Vendor shall comply with all laws, rules, and regulations applicable to its activities and obligations under these Terms.  Vendor represents and warrants that it has not and will not in performance of these Terms, either directly or indirectly, give, pay, offer, authorize, or promise anything of value to any person for the purpose of inducing official action, for the purpose of gaining an improper advantage, or in a manner that is otherwise inconsistent with, and in violation of, one or more applicable anti-bribery and anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act, the UK Bribery Act of 2010, and any other applicable local laws and regulations within the Vendor’s jurisdiction. Vendor further agrees to maintain adequate internal financial controls and maintain accurate records that support the payments due and all transactions under these Terms.

b. Trade Control Laws. Vendor represents and warrants that it will comply with all applicable export, import, and customs laws and regulations (the “Trade Control Laws”) at its sole cost and expense.  If any products or technical data are exported outside of the U.S. in connection with the fulfillment of this Order or any services provided by Vendor, Vendor is deemed to have certified to Customer that the respective products, technical data and services are classified as EAR99 and not otherwise listed on any applicable export control list. Customer will not be liable to Vendor for any loss or expense if Vendor fails to comply with the applicable Trade Control Laws or with the provisions set forth herein. Vendor shall immediately notify Customer if Vendor becomes listed on, or owned or controlled by anyone on, any restricted persons list published by the U.S. Departments of Commerce, Treasury, or State, the European Union, or the United Kingdom, or if Vendor’s export privileges are fully or partially denied, suspended, or revoked.  Notwithstanding anything to the contrary set forth herein, Customer may disclose Vendor’s confidential information to government agencies as Customer may deem reasonably necessary for the purpose of disclosing, resolving, or remediating any violation or potential violation of any applicable Trade Control Laws.

c. No Debarred/Excluded Status. Vendor represents and warrants that neither it, nor any Vendor Personnel presently or in the future performing hereunder, have ever been debarred or excluded by SAM, OFAC, OIG, FDA or listed in Published State Medicaid Exclusion Lists or are the subject of a proceeding that is likely to lead to it or such Personnel becoming, as applicable, a debarred, excluded or convicted entity or individual under applicable U.S. Laws, by the United States Food & Drug Administration, or other competent authorities in any other jurisdiction where this Order is fulfilled.

d. Breach. Vendor’s breach of the representations or prohibitions described in this Section 26 shall constitute a material breach of the Order, and in the event of such breach, Customer shall have the right to terminate the Order in whole or in part, immediately upon written notice to Vendor. Regardless of whether Customer exercises its right to terminate the Order, Vendor shall indemnify Customer for any claims made against Customer in connection with Vendor’s violation of the prohibitions described in this Section 26and Vendor agrees to release any claim for any unpaid and/or future compensation under the Order.

27.  Compliance with Policies.  Customer has adopted a Customer Code of Conduct and Ethics that sets forth standards of conduct required of employees as well as Customer’s suppliers, vendors, contractors, consultants and agents. These documents can be provided to Vendor for Vendor’s records upon request. As a supplier to Customer, Vendor and its employees agree to consult and comply with Customer’s policies as necessary with respect to all Products and services Vendor provides to Customer, and Vendor agrees to act in accordance with the requirements of applicable laws.

28.  Entire Agreement. The Order and these Terms constitute the entire understanding between the parties concerning the subject matter herein and therein and is a complete statement of the terms thereof and shall supersede all previous understandings between the parties, whether oral or written with respect to the subject matter herein.  The parties shall not be bound by any representation made by either party or an agent of either party that is not set forth in the Order or these Terms.  Any applicable provisions required by federal, state, local or other jurisdictional law are hereby incorporated by reference.