ORDER TERMS AND CONDITIONS
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THE FOLLOWING STANDARD PURCHASE ORDER TERMS AND CONDITIONS (“TERMS”) ONLY APPLY TO TRANSACTIONS THAT DO NOT HAVE A WRITTEN AGREEMENT, DULY EXECUTED BY BOTH PARTIES. IF THERE IS SUCH AN AGREEMENT, THEN THOSE TERMS SHALL BE THE TERMS THAT GOVERN THE TRANSACTION AND RELATIONSHIP OF THE PARTIES. IN THE ABSENCE OF SUCH A WRITTEN AGREEMENT, DULY EXECUTED BY BOTH PARTIES, THEN THESE TERMS PROVIDE YOU (“SELLER”) WITH THE GUIDELINES AND LEGAL STIPULATIONS OF THE PURCHASE ORDER (“ORDER”) WITH QUEST DIAGNOSTICS IRELAND LIMITED (“QUEST DIAGNOSTICS”) FOR THE GOODS AND/OR SERVICES THAT ARE DESCRIBED ON THE FACE OF THE ORDER. THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY PROVISIONS, TERMS AND CONDITIONS CONTAINED IN ANY CONFIRMATION ORDER OR OTHER WRITING SELLER MAY GIVE OR RECEIVE.
1. OFFER TO PURCHASE.
THIS ORDER IS QUEST DIAGNOSTICS’ OFFER TO SELLER AND IS NOT QUEST DIAGNOSTICS’ ACCEPTANCE OF ANY OFFER TO SELL, QUOTATION, OR PROPOSAL. ANY REFERENCE TO AN OFFER TO SELL, QUOTE, OR PROPOSAL IS SOLELY TO INCORPORATE THE DESCRIPTION AND SPECIFICATIONS OF PRODUCTS AND SERVICES TO THE EXTENT THOSE DESCRIPTIONS AND SPECIFICATIONS DO NOT CONFLICT WITH THE DESCRIPTION AND SPECIFICATIONS ON THE FACE OF THIS ORDER. NOTHING HEREIN SHALL CREATE ANY CONTRACTUAL RELATIONSHIP BETWEEN QUEST DIAGNOSTICS AND ANY SUBCONTRACTOR OR SUPPLIER OF SELLER.
2. ACCEPTANCE
BY ACKNOWLEDGING RECEIPT OF THIS ORDER (OR BY SHIPPING THE PRODUCTS OR COMMENCING PERFORMANCE OF THE SERVICES CALLED FOR BY THIS ORDER) SELLER ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF SALE CONTAINED IN THIS ORDER. ANY TERMS OR CONDITIONS IN SELLER’S ORDER ACKNOWLEDGEMENT, DRAWINGS, PRINTS, PLANS, DESCRIPTIONS, SPECIFICATIONS, SAMPLES, DATA, AND OTHER DOCUMENTS (COLLECTIVELY, “DOCUMENTS”), IF ANY, THAT ARE IN ADDITION TO OR DIFFERENT FROM THOSE CONTAINED IN THIS ORDER HAVE NO EFFECT EXCEPT AS PROVIDED IN THE NEXT SENTENCE OR UNLESS QUEST DIAGNOSTICS EXPRESSLY ACCEPTS THEM IN WRITING. SUBJECT TO SECTION 1 ABOVE, THE PROVISIONS OF ANY DOCUMENTS EXPRESSLY REFERRED TO IN THIS ORDER ARE INCORPORATED INTO THIS ORDER AND, TOGETHER WITH THE ORDER, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES FOR THE PURCHASE OF THE PRODUCTS OR SERVICES. THIS AGREEMENT APPLIES TO ANY CORRECTED/REPAIRED OR REPLACEMENT PRODUCTS PROVIDED BY SELLER HEREUNDER.
3. CHANGE NOTIFICATION
SELLER SHALL PROVIDE WRITTEN NOTICE TO QUEST DIAGNOSTICS PRIOR TO ANY CHANGES IN THE DESIGN, SPECIFICATIONS, PERFORMANCE, MANUFACTURING, FACILITY LOCATION, OR MATERIALS FOR GOODS OR SERVICES SUPPLIED BY SELLER THAT COULD AFFECT USAGE, PERFORMANCE, OR QUALITY.
4. WARRANTIES
SELLER REPRESENTS AND WARRANTS THAT THE PRODUCTS (I) CONFORM TO THE SPECIFICATIONS, PATTERNS, DRAWINGS, SAMPLES, OR OTHER DESCRIPTIONS UPON WHICH THIS ORDER IS BASED, (II) ARE FIT AND SUFFICIENT FOR THE PURPOSE INTENDED, (III) ARE OF MERCHANTABLE QUALITY, (IV) ARE OF GOOD MATERIAL AND WORKMANSHIP, (V) ARE FREE FROM DEFECT, (VI) ARE FREE AND CLEAR OF ALL LIENS, SECURITY INTERESTS OR OTHER ENCUMBRANCES; AND (VII) IF IT DESIGNED THE PRODUCTS, THEY ARE FREE FROM DEFECT IN DESIGN. SELLER WARRANTS THAT, IN PRODUCTS CONTAINING SOFTWARE, THE SOFTWARE DOES NOT CONTAIN ANY FEATURES THAT PREVENT OR INHIBIT ITS USE BY QUEST DIAGNOSTICS IN ANY MANNER. QUEST DIAGNOSTICS' INSPECTION, TEST, ACCEPTANCE, OR USE OF THE PRODUCTS WILL NOT AFFECT SELLER’S OBLIGATION UNDER THIS WARRANTY. THIS WARRANTY SURVIVES INSPECTION, TESTING, ACCEPTANCE, AND USE. THIS WARRANTY IS FOR THE BENEFIT OF QUEST DIAGNOSTICS, ITS SUCCESSORS, ASSIGNS, CUSTOMERS, AND USERS OF THE PRODUCTS. SELLER WILL PROMPTLY REPLACE OR CORRECT DEFECTS IN ANY PRODUCTS THAT DO NOT CONFORM TO THE FOREGOING WARRANTY, WITHOUT EXPENSE TO QUEST DIAGNOSTICS, WHEN NOTIFIED OF THE NONCONFORMITY. IF SELLER FAILS TO CORRECT DEFECTS IN OR REPLACE NONCONFORMING PRODUCTS PROMPTLY, QUEST DIAGNOSTICS MAY MAKE THE CORRECTIONS OR REPLACE THE PRODUCTS AND CHARGE SELLER FOR THE COSTS QUEST DIAGNOSTICS INCURRED BY DOING SO. THESE WARRANTIES ARE CUMULATIVE AND IN ADDITION TO ANY OTHER WARRANTIES GIVEN BY SELLER TO QUEST DIAGNOSTICS OR PROVIDED BY LAW OR EQUITY. SELLER MAY NOT DISCLAIM OR EXCLUDE ANY OF THESE WARRANTIES OR ANY IMPLIED OR EXPRESSED WARRANTIES UNLESS QUEST DIAGNOSTICS SIGNS A DISCLAIMER OR EXCLUSION EVIDENCED BY AN ORDER, CHANGE ORDER, CHANGE NOTICE, OR REVISION. ANY APPLICABLE STATUTE OF LIMITATIONS RUNS FROM THE DATE OF QUEST DIAGNOSTICS’ DISCOVERY OF THE NONCOMPLIANCE OF THE PRODUCTS OR SERVICES WITH THE FOREGOING WARRANTIES.
5. INVOICES
SELLER WILL SUBMIT INVOICES TO THE ADDRESS REFERENCED ON THE ORDER. THE INVOICE WILL INCLUDE A PREPAID FREIGHT BILL IF ALL OR ANY PART OF THE FREIGHT IS INCLUDED ON THE FACE OF THE INVOICE.
6. SHIPPING INFORMATION
SELLER MUST SHOW THE DESCRIPTION/SPECIFICATIONS, PURCHASE ORDER NUMBER, AND QUEST ITEM NUMBER WHERE APPLICABLE, SELLERNAME, WEIGHT, AND QUANTITY OF THE PRODUCTS SHIPPED ON ALL PACKAGES AND INVOICES. SELLER SHALL COMPLY WITH ALL APPLICABLE CUSTOMS REGULATIONS. SELLER SHALL COMPLY WITH THE QUEST ROUTING INSTRUCTIONS FROM THE QUEST ROUTING LETTER. IT IS THE RESPONSIBILITY OF THE SELLER TO ATTAIN A COPY OF THE QUEST ROUTING LETTER. AS PER THE QUEST ROUTING LETTER THE SELLER WILL SHIP COLLECT VIA THE QUEST DESIGNATED CARRIERS. SELLER SHALL DELIVER THE PRODUCTS TO THE DELIVERY LOCATION SPECIFIED IN THE ORDER. ALL INCIDENTS OF OWNERSHIP TO THE PRODUCTS, INCLUDING, TITLE TO THE PRODUCTS AND RISK OF LOSS SHALL PASS TO QUEST DIAGNOSTICS UPON ACCEPTANCE OF THE PRODUCTS AT THE PLACE SPECIFIED AS THE DELIVERY LOCATION ON THE ORDER.
7. QUANTITY, PRICE, AND TERMS
QUEST DIAGNOSTICS WILL INCLUDE THE QUANTITY AND PRICE OF THE PRODUCTS ON ORDERS, WITH NO ALLOWANCE OF PACKING, TRANSPORT, OR HAULAGE CHARGES, OR FOR INSURANCE ON SHIPPING. TERMS ARE NET 60 DAYS END OF MONTH. “NET 60 DAYS END OF MONTH” MEANS THAT AN INVOICE MUST BE PAID BY THE END OF THE CALENDAR MONTH THAT IS 60 DAYS FROM THE DATE OF RECEIPT OF THE INVOICE. FOR EXAMPLE, AN INVOICE RECEIVED JANUARY 1 WOULD BE PAYABLE BY MARCH 31; A MONTHLY INVOICE RECEIVED JANUARY 25 WOULD ALSO BE PAYABLE BY MARCH 31.
QUEST DIAGNOSTICS HAS NO FUTURE PURCHASE OBLIGATIONS.
8. TAXES
A. EACH PARTY IS RESPONSIBLE FOR PERSONAL OR REAL PROPERTY TAXES ON PROPERTY IT OWNS; FRANCHISE AND PRIVILEGE TAXES ON ITS BUSINESS; DOING BUSINESS TAXES; TAXES BASED ON ITS INCOME, GROSS RECEIPTS, OR CAPITAL; EXCISE TAXES IMPOSED ON IT IN THE COURSE OF CONDUCTING ITS BUSINESS; AND EMPLOYMENT, PAYROLL, UNEMPLOYMENT, WORKERS COMPENSATION, WITHHOLDING TAXES, OR OTHER TAXES ON ITS EMPLOYEES.
B. SELLER IS RESPONSIBLE FOR ANY SALES, USE, TRANSFER, VALUE-ADDED, GOODS AND SERVICES, SERVICES, CONSUMPTION, AND OTHER TAXES AND DUTIES, INCLUDING ANY EXCISE TAXES IMPOSED ON IT IN THE CONDUCT OF ITS OWN BUSINESS, ON THE GOODS MANUFACTURED (INCLUDING MEDICAL DEVICE EXCISE TAX) OR SERVICES, USED OR CONSUMED BY SELLER IN PROVIDING THE PRODUCTS AND SERVICES. UPON REQUEST, SELLER SHALL PROVIDE DOCUMENTATION TO SUPPORT ITS CALCULATIONS OF THE TAXES IT IS COLLECTING FROM QUEST DIAGNOSTICS (IF ANY).
C. UNLESS THE PARTIES OTHERWISE AGREE IN WRITING, ANY SUMS CHARGED TO QUEST WILL BE STATED TO BE INCLUSIVE OF APPLICABLE TAXES (INCLUDING VALUE ADDED TAX (“VAT”)), WHICH SHALL BE ADDED AT THE PREVAILING RATE AS APPLICABLE AND PAID BY THE QUEST FOLLOWING DELIVERY OF A VALID INVOICE FOR PAYMENT OF SAME. SELLER SHALL INDEMNIFY QUEST AGAINST ANY LIABILITY (INCLUDING ANY INTEREST, PENALTIES OR COSTS INCURRED) WHICH IS LEVIED, DEMANDED OR ASSESSED QUEST AT ANY TIME IN RESPECT OF SELLER’S FAILURE TO ACCOUNT FOR, OR TO PAY, ANY TAXES RELATING TO PAYMENTS MADE TO SELLER UNDER THIS ORDER.
D. IF A TAXING AUTHORITY ASSESSES TAXES ON THE PRODUCTS AND SERVICES, THE PARTIES WILL SEGREGATE THE PAYMENTS INTO TWO PAYMENT STREAMS: ONE FOR TAXABLE CONSUMABLES AND THE OTHER FOR NONTAXABLE CONSUMABLES AND SERVICES. THE PARTIES WILL COOPERATE TO ENABLE EACH TO DETERMINE ITS OWN TAX LIABILITY AND TO MINIMIZE ITS LIABILITY TO THE EXTENT LEGALLY PERMISSIBLE. EACH PARTY WILL PROVIDE AND MAKE AVAILABLE TO THE OTHER ANY EXEMPTION CERTIFICATES, ANY APPLICABLE TAX FORMS, INFORMATION REGARDING THE PRODUCTS AND SERVICES, OR OTHER INFORMATION REASONABLY REQUESTED BY THE OTHER PARTY. QUEST DIAGNOSTICS SHALL BE ENTITLED TO DEDUCT FROM ANY PAYMENTS HEREUNDER ANY WITHHOLDING TAXES THAT QUEST DIAGNOSTICS IS REQUIRED UNDER APPLICABLE LAW TO REMIT ON BEHALF OF SELLER.
9. DELIVERY
SELLER WILL DELIVER THE PRODUCTS WITHIN THE TIME STATED ON THIS ORDER. TIME IS OF THE ESSENCE. IF THERE WILL BE A DELAY OF ANY TYPE IN THE DELIVERY OF PRODUCTS OR SERVICES, QUEST DIAGNOSTICS HAS THE RIGHT TO WITHDRAW THIS ORDER WITHOUT ANY LIABILITY TO SELLER. SELLER IS LIABLE FOR ANY COSTS OR DAMAGES INCURRED BY QUEST DIAGNOSTICS RESULTING FROM THE DELAYS. SELLER WILL IMMEDIATELY NOTIFY QUEST DIAGNOSTICS OF ANY POTENTIAL DELAY.
10. QUALITY AND INSPECTION
SELLER WILL PACKAGE THE PRODUCTS PROPERLY TO PROTECT FROM DAMAGE DURING SHIPPING/HANDLING AND IN COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. THE PRODUCTS WILL BE FREE OF DEFECTS AND COMPLY WITH PRODUCT SPECIFICATIONS INDICATED IN ANY DOCUMENTS. QUEST DIAGNOSTICS HAS THE RIGHT TO INSPECT ALL PRODUCTS AFTER DELIVERY. QUEST DIAGNOSTICS HAS THE RIGHT, AT SELLER’S RISK AND EXPENSE, TO REJECT AND RETURN THE WHOLE OR ANY PART OF THE PRODUCTS THAT MAY BE DEFECTIVE OR FAIL TO COMPLY WITH THE PRODUCT SPECIFICATION REQUIREMENTS OF ANY DOCUMENTS OR WARRANTIES. SELLER WILL REPLACE THE REJECTED PRODUCTS OR CREDIT QUEST DIAGNOSTICS FOR THE VALUE OF THE REJECTED PRODUCTS, AS QUEST DIAGNOSTICS MAY DIRECT, INCLUDING ANY FREIGHT AND HANDLING CHARGES PAID BY QUEST DIAGNOSTICS. IF QUEST DIAGNOSTICS REQUIRES REPLACEMENT OF THE REJECTED PRODUCTS, SELLER SHALL, AT ITS EXPENSE, REPLACE THE NONCONFORMING PRODUCTS WITHIN THE TIME PERIOD QUEST DIAGNOSTICS SPECIFIES AND PAY FOR ALL RELATED EXPENSES, INCLUDING TRANSPORTATION CHARGES FOR THE RETURN OF THE NONCONFORMING PRODUCTS AND THE DELIVERY OF REPLACEMENT PRODUCTS. ANY INSPECTION BY QUEST DIAGNOSTICS SHALL NOT REDUCE OR OTHERWISE AFFECT SELLER’S OBLIGATIONS HEREUNDER, AND QUEST DIAGNOSTICS SHALL HAVE THE RIGHT TO CONDUCT FURTHER INSPECTIONS OF REPLACEMENT PRODUCTS.
11. SERVICE STANDARDS
SELLER SHALL PERFORM THE SERVICES USING PERSONNEL OF REQUIRED SKILL, EXPERIENCE AND QUALIFICATIONS AND IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH BEST INDUSTRY STANDARDS FOR SIMILAR SERVICES AND SHALL DEVOTE ADEQUATE RESOURCES TO MEET ITS OBLIGATIONS. SELLER GUARANTEES ITS WORKMANSHIP FOR ONE YEAR FROM THE DATE SELLER PROVIDES SUCH SERVICE. SELLER SHALL ENSURE THAT ALL OF ITS EQUIPMENT USED IN THE PROVISION OF SERVICES ARE IN GOOD WORKING ORDER AND SUITABLE FOR WHICH THEY ARE USED. SELLER SHALL KEEP AND MAINTAIN ANY QUEST DIAGNOSTICS EQUIPMENT IN ITS POSSESSION IN GOOD WORKING ORDER AND SHALL NOT DISPOSE OF OR USE SUCH EQUIPMENT OTHER THAN IN ACCORDANCE WITH QUEST DIAGNOSTICS’ WRITTEN INSTRUCTIONS OR AUTHORIZATION. SELLER MUST SUPPLY AND INSTALL ELECTRICAL EQUIPMENT, WIRING, AND FITTINGS IN ACCORDANCE WITH ANY APPLICABLE CODE AND THE REQUIREMENTS OF UNDERWRITERS LABORATORIES, INC. IF SELLER PERFORMS SERVICES ON QUEST DIAGNOSTICS' PREMISES, SELLER WILL CONDUCT ITSELF IN A SAFE AND PRUDENT MANNER AND COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS AND ORDINANCES (INCLUDING RELATING TO ENVIRONMENTAL AND HELATH & SAFETY). SELLER WILL ALSO COMPLY WITH QUEST DIAGNOSTICS' INTERNAL RULES, REGULATIONS AND POLICIES, INCLUDING WORKPLACE SAFETY STANDARDS AND POLICIES, SECURITY PROCEDURES CONCERNING SYSTEMS AND DATA, BUILDING SECURITY PROCEDURES, AND GENERAL HEALTH AND SAFETY PRACTICES AND PROCEDURES.
12. INTELLECTUAL PROPERTY
ALL INTELLECTUAL PROPERTY RIGHTS, INCLUDING COPYRIGHTS, PATENTS, PATENT DISCLOSURES AND INVENTIONS (WHETHER PATENTABLE OR NOT), TRADEMARKS, SERVICE MARKS, TRADE NAMES, TRADE SECRETS, KNOW-HOW AND OTHER CONFIDENTIAL INFORMATION, TRADE DRESS, TRADE NAMES, LOGOS, CORPORATE NAMES AND DOMAIN NAMES, RIGHTS IN GET-UP, TOGETHER WITH ALL OF THE GOODWILL ASSOCIATED THEREWITH, DERIVATIVE WORKS AND RIGHTS TO SUE FOR PASSING OFF, RIGHTS IN DESIGNS, RIGHTS IN COMPUTER SOFTWARE, DATABASED RIGHTS, AND ALL OTHER RIGHTS WHETHER REGISTERED OR UNREGISTERED AND INCLUDING ALL APPLICATIONS (OR RIGHTS TO APPLY) FOR, AND RENEWALS OR EXTENSIONS OF, SUCH RIGHTS AND ALL SIMILAR OR EQUIVALENT RIGHTS OR FORMS OF PROTECTION WHICH MAY NOW OR IN THE FUTURE SUBSIST IN ANY PART OF THE WORLD (COLLECTIVELY, “INTELLECTUAL PROPERTY RIGHTS”) IN AND TO ALL DOCUMENTS, WORK PRODUCT, AND OTHER MATERIALS THAT ARE DELIVERED TO QUEST DIAGNOSTICS UNDER THE AGREEMENT OR PREPARED BY OR ON BEHALF OF SELLER IN THE COURSE OF PERFORMING THE SERVICES (COLLECTIVELY, “DELIVERABLES”) SHALL BE OWNED EXCLUSIVELY BY QUEST DIAGNOSTICS. SELLER IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL CLAIMS TO SO-CALLED “MORAL RIGHTS” WITH RESPECT TO THE DELIVERABLES. UPON QUEST DIAGNOSTICS’ REQUEST, SELLER SHALL PROMPTLY TAKE SUCH FURTHER ACTIONS, INCLUDING EXECUTION AND DELIVERY OF ALL APPROPRIATE INSTRUMENTS OF CONVEYANCE, AS MAY BE NECESSARY TO ASSIST QUEST DIAGNOSTICS TO PROSECUTE, REGISTER, PERFECT OR RECORD ITS RIGHTS IN OR TO ANY DELIVERABLES. SELLER AND ITS LICENSORS ARE, AND SHALL REMAIN, THE SOLE AND EXCLUSIVE OWNERS OF ALL RIGHT, TITLE, AND INTEREST IN AND TO ALL DOCUMENTS, DATA, KNOW-HOW, METHODOLOGIES, SOFTWARE AND OTHER MATERIALS PROVIDED BY OR USED BY SELLER IN CONNECTION WITH PERFORMING THE SERVICES, IN EACH CASE DEVELOPED OR ACQUIRED BY SELLER PRIOR TO THE COMMENCEMENT OR INDEPENDENTLY OF THIS ORDER (COLLECTIVELY, “PRE-EXISTING MATERIALS”), INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS THEREIN. SELLER HEREBY GRANTS QUEST DIAGNOSTICS A LICENSE TO ANY PRE-EXISTING MATERIALS TO THE EXTENT INCORPORATED IN, COMBINED WITH OR OTHERWISE NECESSARY FOR THE USE OF THE DELIVERABLES FOR ANY AND ALL PURPOSES.
13. INDEMNITY
A. SELLER WILL INDEMNIFY, DEFEND AND HOLD QUEST DIAGNOSTICS HARMLESS FROM ALL COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), JUDGMENTS, LIABILITIES, LOSSES, SETTLEMENT PAYMENTS, INTERESTS, AWARDS, DAMAGES, FINES AND PENALTIES, OR OTHER CHARGES IN THE EVENT OF A SUIT OR CLAIM FOR:
1. SELLER’S BREACH OF THE TERMS AND CONDITIONS OF THIS ORDER, INCLUDING ANY BREACH OF REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 3 (WARRANTIES) ABOVE.
2. INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, INCLUDING ANY PATENT, COPYRIGHT, OR TRADEMARK, BY THE SALE OR USE OF THE PRODUCTS IN THE FORM SOLD BY SELLER OR IN COMBINATION WITH OTHER MATERIALS. WHERE, HOWEVER, THE COMBINATION OF THE PRODUCTS WITH OTHER MATERIALS IS THE BASIS FOR A CLAIM OF PATENT INFRINGEMENT, THERE SHALL BE NO INDEMNITY UNLESS THE COMBINATION IS THE PRINCIPAL PRACTICAL PURPOSE FOR WHICH THE PRODUCTS CAN BE USED OR SOLD, OR SELLER RECOMMENDS THE COMBINATION TO QUEST DIAGNOSTICS.
3. DAMAGE TO PROPERTY, INJURY OR DEATH OF ANY PERSON OR DAMAGE FROM PROFESSIONAL ERRORS OR OMISSIONS, IN EACH CASE ATTRIBUTABLE DIRECTLY OR INDIRECTLY TO OR IN CONNECTION WITH PRODUCTS OR SERVICES PROVIDED HEREUNDER.
4. SELLER’S NEGLIGENCE OR WILLFUL MISCONDUCT.
B. A CONDITION OF THE ABOVE INDEMNITY IS THAT QUEST DIAGNOSTICS MUST GIVE SELLER PROMPT NOTICE IN WRITING OF ANY SUIT OR CLAIM, AND PERMIT SELLER, IF IT SO ELECTS, TO ENTER AND DEFEND, SETTLE, OR OTHERWISE TERMINATE SUCH SUIT OR CLAIM, PROVIDED THAT ANY SETTLEMENT INVOLVES ONLY THE PAYMENT OF MONEY FOR WHICH SELLER IS LIABLE. SELLER WILL MAKE EVERY EFFORT TO REPLACE INFRINGING PRODUCTS WITH NON-INFRINGING PRODUCTS OR EQUIVALENTS HAVING THE SAME FUNCTIONALITY AND USE .
14. TERMINATION AND REMEDIES
QUEST DIAGNOSTICS MAY TERMINATE THIS ORDER, OR ANY PART THEREOF, BY WRITTEN NOTICE TO SELLER IF SELLER DEFAULTS FOR ANY REASON. IF SELLER DEFAULTS OR BREACHES OR QUEST DIAGNOSTICS RIGHTFULLY REJECTS OR REVOKES ITS ACCEPTANCE OF THE PRODUCTS, QUEST DIAGNOSTICS MAY CANCEL THE ORDER AND RECOVER THE PRICE IT PAID TOGETHER WITH ANY INCIDENTAL AND CONSEQUENTIAL DAMAGES. IN ADDITION TO ANY OTHER REMEDY, PROVIDED BY LAW OR THIS ORDER, QUEST DIAGNOSTICS MAY “COVER” BY MAKING, IN GOOD FAITH AND WITHOUT UNREASONABLE DELAY, A REASONABLE PURCHASE OF OR CONTRACT TO PURCHASE PRODUCTS IN SUBSTITUTION FOR THE PRODUCTS DUE FROM SELLER. IN SUCH CASE, QUEST DIAGNOSTICS' DAMAGES ARE THE DIFFERENCE BETWEEN THE COST OF “COVER” AND THE CONTRACT PRICE TOGETHER WITH ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
15. COMPLIANCE WITH LAW
ALL PRODUCTS FURNISHED OR SERVICES RENDERED PURSUANT TO THIS ORDER SHALL BE PRODUCED, MANUFACTURED, SOLD, DELIVERED, PROVIDED OR RENDERED TO QUEST DIAGNOSTICS IN COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, AS AMENDED FROM TIME TO TIME. SELLER SHALL COMPLY WILL ALL EXPORT AND IMPORT LAWS OF ALL COUNTRIES INVOLVED IN THE SALE OF PRODUCTS OR SERVICES UNDER THIS ORDER. SELLER ASSUMES ALL RESPONSIBILITY FOR SHIPMENTS OF PRODUCTS REQUIRING ANY GOVERNMENT IMPORT CLEARANCE. IN THE EVENT THAT THERE ARE CHANGES TO APPLICABLE LAW, QUEST DIAGNOSTICS MAY UNILATERALLY AMEND THIS ORDER FOR PURPOSES OF COMPLYING WITH SUCH CHANGES BY SENDING A NOTICE OF AMENDMENT TO SELLER. SELLER SHALL COMPLY WILL ALL EXPORT AND IMPORT LAWS OF ALL COUNTRIES INVOLVED IN THE SALE OF PRODUCTS UNDER THIS ORDER. SELLER ASSUMES ALL RESPONSIBILITY FOR SHIPMENTS OF PRODUCTS REQUIRING ANY GOVERNMENT IMPORT CLEARANCE.
16. EXPORT CONTROL
16.1 DEFINITIONS
a) “RESTRICTED COUNTRY” MEANS ANY COUNTRY AGAINST WHICH ANY EXPORT CONTROL AUTHORITY HAS IMPOSED AN EMBARGO OR SPECIAL TRADE SANCTION, INCLUDING BUT NOT LIMITED TO THE EXPORTS OR RE-EXPORTS OF ITEMS TO INDIVIDUALS OR ENTITIES WITHIN, OR CONTROLLED OR MAJORITY OWNED BY, ANY SUCH COUNTRY OR THEIR GOVERNMENT.
b) “RESTRICTED PERSON” MEANS AN ENTITY OR INDIVIDUAL TO WHICH U.S. EU OR IRISH EXPORTS AND RE-EXPORTS ARE EITHER PROHIBITED OR REQUIRE AN EXPORT LICENSE BY ANY EXPORT CONTROL AUTHORITY.
c) “EXPORT CONTROL AUTHORITY” MEANS EITHER INDIVIDUALLY OR TOGETHER, AS APPLICABLE, A US EXPORT CONTROL AUTHORITY AND/OR AN IRISH EXPORT CONTROL AUTHORITY.
d) “U.S. EXPORT CONTROL AUTHORITY” INCLUDES WITHOUT LIMITATION 1) THE U.S. DEPARTMENT OF TREASURY’S OFFICE OF FOREIGN ASSET CONTROL, 2) THE U.S. DEPARTMENT OF COMMERCE’S BUREAU OF INDUSTRY AND SECURITY, AND/OR 3) THE DEPARTMENT OF STATE’S DIRECTORATE OF DEFENSE TRADE CONTROLS (TOGETHER U.S. EXPORT CONTROL AUTHORITIES”).
e) “IRISH EXPORT CONTROL AUTHORITY” MEANS ANY COMPETENT IRISH AUTHORITY WITH JURISDICTION TO IMPOSE EXPORT CONTROLS, RESTRICTIONS, SANCTIONS, EMBARGOES OR SIMILAR.
f) “TRANSACTION” MEANS SUPPLYING GOODS AND/OR SERVICES TO QUEST DIAGNOSTICS, AND/OR REQUESTING QUEST DIAGNOSTICS TO PROVIDE GOODS AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO LABORATORY TESTING SERVICES.
16.2 SELLER ACKNOWLEDGES AND AGREES THAT QUEST DIAGNOSTICS IS SUBJECT TO THE LAWS OF IRELAND AND AS APPLICABLE THE EUROPEAN UNION, AND THE UNITED STATES AND, AS SUCH, MAY BE PROHIBITED FROM, OR WOULD REQUIRE A SPECIAL LICENSE TO, ENGAGE IN TRANSACTIONS INVOLVING ANY RESTRICTED COUNTRY AND/OR A RESTRICTED PERSON.
16.3 SELLER REPRESENTS, COVENANTS, AND WARRANTS THAT UNDER THIS AGREEMENT NEITHER SELLER, NOR ITS SUBSIDIARIES, ANY DIRECTOR, OFFICER, AGENT, EMPLOYEE, OR AFFILIATE OF SELLER WILL ENGAGE IN ANY TRANSACTION IN CONNECTION WITH ANY COUNTRY THAT AT THE TIME OF SUCH TRANSACTION IS AN RESTRICTED COUNTRY, OR FROM ANY PERSON OR ENTITY THAT AT THE TIME OF SUCH TRANSACTION IS A RESTRICTED PERSON. IF SELLER ENGAGES IN ANY SUCH TRANSACTION IN CONNECTION WITH THIS AGREEMENT, THEN QUEST DIAGNOSTICS SHALL HAVE THE RIGHT:
1. TO REFUSE TO CONTINUE WITH THE TRANSACTION INCLUDING BUT NOT LIMITED TO NOT TESTING ANY SPECIMEN(S) RECEIVED IN VIOLATION OF THIS PROVISION,
2. TO IMMEDIATELY TERMINATE THIS AGREEMENT NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, AND
3. TO ASSERT ANY OTHER REMEDY AVAILABLE UNDER APPLICABLE LAW.
16.4 IF SELLER BELIEVES THAT A VIOLATION OF A LAW OR REQUIREMENT GOVERNED BY AN EXPORT CONTROL AUTHORITY IS LIKELY TO HAVE OCCURRED RELATED TO THIS AGREEMENT, THEN SELLER WILL PROMPTLY NOTIFY QUEST DIAGNOSTICS OF THE CIRCUMSTANCES OF SUCH LIKELY VIOLATION. SELLER AGREES TO REASONABLY COOPERATE IN INVESTIGATING AND TERMINATING SUCH LIKELY VIOLATIONS, AND TO REASONABLY COOPERATE WITH ANY US GOVERNMENT INVESTIGATION, INQUIRY AND OTHER ACTION RELATED TO ANY APPLICABLE EXPORT CONTROL LAW. THIS EXPORT CONTROL PROVISION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT
16.5 SELLER SHALL INCLUDE EXPORT CONTROL PROVISIONS THAT ARE AT LEAST AS PROTECTIVE IN ANY AGREEMENT THAT IS RELATED TO THIS AGREEMENT.
16.6 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, LIABILITY UNDER THIS EXPORT CONTROL SECTION IS NOT LIMITED.
17. REVISION
NO REVISION OF THIS ORDER SHALL BE VALID UNLESS IN WRITING AND SIGNED BY QUEST DIAGNOSTICS' AUTHORIZED REPRESENTATIVE.
18. REJECTIONS; OVERRUNS
SELLER SHALL DESTROY ANY REJECTED OR OVER-RUN MATERIAL THAT IDENTIFIES QUEST DIAGNOSTICS OR CONTAINS ANY PRINTING BY QUEST DIAGNOSTICS. SELLER SHALL NOT SELL THESE MATERIALS AS SURPLUS.
19. GOVERNING LAW/JURISDICTION
THIS ORDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF IRELAND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF IRELAND IN RELATION TO ALL MATTERS AND DISPUTES (WHETHER CONTRACTUAL OR NON-CONTRACTUAL) ARISING OUT OF OR IN CONNECTION WITH THIS ORDER.
20. INSURANCE
IF THIS ORDER COVERS SERVICES ON QUEST DIAGNOSTICS' PREMISES, SELLER WILL GIVE QUEST DIAGNOSTICS, BEFORE SELLER STARTS WORK, CERTIFICATES OF INSURANCE, FROM AN INSURER ACCEPTABLE TO QUEST DIAGNOSTICS, FOR THE FOLLOWING LINES OF INSURANCE AT THE MINIMUM LIMITS INDICATED: (I) COMPREHENSIVE PUBLIC LIABILITY, NOT LESS THAN €2,000,000 COMBINED BODILY INJURY AND PROPERTY DAMAGE PER OCCURRENCE; AND (II) COMPREHENSIVE AUTOMOBILE LIABILITY, NOT LESS THAN €2,000,000 COMBINED BODILY INJURY AND PROPERTY DAMAGE PER OCCURRENCE, WHICH POLICY SHALL INCLUDE OWNED, NON-OWNED AND HIRED AUTOS; AND (III) WORKERS COMPENSATION INCLUDING EMPLOYERS LIABILITY - €1,000,000. SUPPLIERS OF ARCHITECTURAL, ENGINEERING, OR DESIGN SERVICES ALSO MUST PROVIDE CERTIFICATES OF INSURANCE FOR PROFESSIONAL LIABILITY AT €2,000,000 COMBINED BODILY AND PROPERTY DAMAGE LIMITS.
21. NO DEBARMENT
BY ACCEPTING THIS ORDER OR ANY PART OF IT, SELLER CERTIFIES, REPRESENTS AND WARRANTS THAT IT AND ITS PRINCIPALS, PARENT, SHAREHOLDERS, DIRECTORS, OFFICERS, AND EMPLOYEES HAVE NOT BEEN CONVICTED OF A CRIMINAL OFFENSE RELATED TO HEALTH CARE AND ARE NOT LISTED BY ANY COMPETENT HEALTH CARE ASSOCIATION OR AGENCY AS DEBARRED, SUSPENDED, PROPOSED FOR DEBARMENT, EXCLUDED OR INELIGIBLE TO PARTICIPATE IN STATE FUNDED PROGRAMS. SELLER SHALL NOTIFY QUEST DIAGNOSTICS IN WRITING WITHIN FIVE DAYS IF ANY CHANGE RENDERS THIS REPRESENTATION FALSE. IN ADDITION TO ANY OTHER AVAILABLE REMEDIES, QUEST DIAGNOSTICS SHALL HAVE THE RIGHT TO IMMEDIATELY TERMINATE THE AGREEMENT FOR FAULT OR BREACH BY SELLER UPON SUCH CHANGE.
22. NO ASSIGNMENT
SELLER MAY NOT ASSIGN ANY OF ITS RIGHTS OR DELEGATE ANY OF ITS OBLIGATIONS UNDER THIS ORDER.
23. FORCE MAJEURE
NEITHER PARTY IS LIABLE TO THE OTHER FOR ITS FAILURE TO DELIVER THE PRODUCTS ON TIME OR TAKE DELIVERY OF THE PRODUCTS (OR ANY PORTION THEREOF), IF THE FAILURE IS THE RESULT OF A FORCE MAJEURE EVENT. A FORCE MAJEURE EVENT IS ANY ACT OR EVENT, FORESEEN OR UNFORESEEN, THAT (I) PREVENTS A PARTY FROM PERFORMING IT OBLIGATIONS UNDER THIS AGREEMENT (“NON-PERFORMING PARTY”); (II) IS BEYOND THE CONTROL AND NOT THE FAULT OF THE NON-PERFORMING PARTY, AND (III) THE NON-PERFORMING PARTY HAS BEEN UNABLE TO AVOID OR OVERCOME THE ACT OR EVENT BY EXERCISING DUE DILIGENCE.
24. DEFAULT BROWSER
WHERE A BROWSER IS REQUIRED BY SUPPLIER TO PROVIDE SERVICES OR ALLOW QUEST DIAGNOSTICS TO ACCESS INFORMATION IN CONNECTION WITH THIS AGREEMENT, SUPPLIER AGREES THAT SUCH SERVICES REQUIRING ACCESS THROUGH A BROWSER WILL SUPPORTED BY THE MOST CURRENT VERSION OF THE INDUSTRY’S MOST COMMON BROWSERS, INCLUDING, BUT NOT LIMITED TO MICROSOFT EDGE, WHICH IS QUEST DIAGNOSTICS’ DEFAULT BROWSER. QUEST DIAGNOSTICS SHALL HAVE THE RIGHT, UPON SIXTY (60) DAYS-NOTICE, TO ADVISE SUPPLIER OF A CHANGE IN QUEST DIAGNOSTICS’ DEFAULT BROWSER. AS LONG AS QUEST DIAGNOSTICS’ NEW DEFAULT BROWSER IS THE MOST CURRENT VERSION OF ONE OF THE INDUSTRY’S OTHER COMMON BROWSERS, SUPPLIER MUST SUPPORT SUCH CHANGE AT NO ADDITIONAL COST TO QUEST DIAGNOSTICS.
25. CONFIDENTIALITY
EACH PARTY TO THIS AGREEMENT SHALL KEEP CONFIDENTIAL ALL, AND SHALL NOT DIVULGE ANY, OF THE PROPRIETARY OR CONFIDENTIAL INFORMATION OF THE OTHER PARTY INCLUDING, BUT NOT LIMITED TO, INFORMATION RELATING TO SUCH MATTERS AS FINANCES, METHODS OF OPERATION AND COMPETITION, PRICING, MARKETING PLANS AND STRATEGIES, EQUIPMENT AND OPERATIONAL REQUIREMENTS AND INFORMATION CONCERNING PERSONNEL, PATIENTS AND SUPPLIERS, UNLESS SUCH INFORMATION (I) IS IN THE POSSESSION OF THE PARTY RECEIVING IT WITHOUT OBLIGATION OF CONFIDENCE, (II) IS DEVELOPED BY THE PARTY RECEIVING IT INDEPENDENTLY FROM ITS RECEIPT OF INFORMATION FROM THE OTHER PARTY, OR (III) IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A RESULT OF A DISCLOSURE BY THAT PARTY. IF A PARTY RECEIVES A REQUEST UNDER A SUBPOENA OR ORDER ISSUED BY A COURT OF COMPETENT JURISDICTION OR A GOVERNMENTAL BODY TO DISCLOSE ALL OR ANY PART OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION, THE PARTY AGREES, TO THE EXTENT LAWFUL, TO (A) MAKE REASONABLE EFFORTS TO NOTIFY THE OTHER PARTY OF THE IMPENDING DISCLOSURE IN TIME FOR THE OTHER PARTY TO APPEAR AND OPPOSE THE DISCLOSURE, (B) CONSULT WITH THE OTHER PARTY ON THE ADVISABILITY OF TAKING LEGALLY AVAILABLE STEPS TO RESIST OR NARROW SUCH REQUEST, (C) FURNISH ONLY THAT PORTION OF THE CONFIDENTIAL INFORMATION WHICH THE PARTY IS REQUIRED TO DISCLOSE, AND (D) PERMIT THE OTHER PARTY AT ITS EXPENSE TO OBTAIN AN ORDER OR OTHER RELIABLE ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED TO SUCH DISCLOSED CONFIDENTIAL INFORMATION. EACH PARTY WILL RETURN ALL WRITTEN, AND RETURN OR DESTROY COPIES ON ALL OTHER MEDIA CONTAINING, PROPRIETARY OR CONFIDENTIAL INFORMATION OF THE OTHER PARTY WHICH IS STILL IN POSSESSION OF THE PARTY TO WHOM IT WAS FURNISHED ON THE DATE OF THE TERMINATION OF THIS AGREEMENT. EACH PARTY'S CONFIDENTIALITY OBLIGATIONS HEREUNDER SHALL REMAIN IN FULL FORCE AND EFFECT FOR FIVE (5) YEARS FROM THE DATE OF ACCEPTANCE OF THIS ORDER. NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL BE PERMITTED TO RETAIN ANY COPIES OF CONFIDENTIAL OR PROPRIETARY INFORMATION OF THE OTHER PARTY WHICH HAVE BEEN CREATED PURSUANT TO AUTOMATIC IT BACKUP OR DISASTER RECOVERY PROCEDURES, WHICH COPIES SHALL REMAIN CONFIDENTIAL.
26. QUEST DIAGNOSTICS POLICIES
WITHOUT LIMITING ANY OF SELLER’S OTHER OBLIGATIONS, SELLERSHALL, AND SHALL ENSURE THAT ITS EMPLOYEES AND CONTRACTORS SHALL, AT ALL TIMES IN PERFORMING THEIR OBLIGATIONS HEREUNDER: (I) ACT CONSISTENTLY WITH THE PRINCIPLES OF QUEST DIAGNOSTICS’ CODE OF ETHICS SET OUT AT HTTPS://WWW.QUESTDIAGNOSTICS.COM/HOME/ABOUT/CORPORATE-CITIZENSHIP/GOVERNANCE-ETHICS-COMPLIANCE/, AS IT MAY BE AMENDED FROM TIME TO TIME; (II) ACT CONSISTENTLY WITH THE PRINCIPLES OF QUEST DIAGNOSTICS’ SUPPLIER CODE OF CONDUCT SET OUT AT HTTPS://WWW.QUESTDIAGNOSTICS.COM/HOME/ABOUT/OPERATIONS/SUPPLIERS/CODE-OF-CONDUCT/; AND (III) IF SELLER HAS KNOWLEDGE OR A GOOD FAITH BELIEF THAT QUEST DIAGNOSTICS OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES IS VIOLATING OR HAS VIOLATED ANY LAW, REGULATION, COMPANY POLICY OR ETHICAL GUIDELINE, PROMPTLY REPORT THE INFORMATION TO THE CHEQLINE AT 800-650-9502 OR ONLINE THROUGH HTTP://WWW.MYCOMPLIANCEREPORT.COM/ (24 HOURS A DAY, 7 DAYS A WEEK). ACCESS ID: QDI
27. NO PARTNERSHIP
NOTHING CONTAINED IN THE ORDER OR IN THESE TERMS IS INTENDED OR SHALL BE CONSTRUED TO CREATE OR ESTABLISH AN AGENCY, PARTNERSHIP, OR JOINT VENTURE RELATIONSHIP BETWEEN QUEST DIAGNOSTICS AND SELLER. NEITHER QUEST DIAGNOSTICS NOR SELLER SHALL HAVE ANY RIGHT OR AUTHORITY TO ASSUME OR CREATE, BY ACTION, IN WRITING OR OTHERWISE, ANY OBLIGATION OF ANY KIND, EXPRESS OR IMPLIED, IN THE NAME OF OR ON BEHALF OF THE OTHER PARTY.
28. NOTICES
ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN UNDER THE ORDER OR THESE TERMS SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN PERSONALLY RECEIVED BY THE INTENDED RECIPIENT OR (I) WHEN DELIVERED BY NATIONALLY RECOGNIZED OVERNIGHT COURIER (WITH CONFIRMATION OF RECEIPT), (II) WHEN DELIVERED BY E-MAIL OR FACSIMILE (WITH CONFIRMATION OF RECEIPT), OR (III) THREE (3) BUSINESS DAYS AFTER HAVING BEEN MAILED BY REGISTERED OR CERTIFIED POST, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, ADDRESSED TO THE APPLICABLE PARTY AT THE ADDRESS INDICATED ON THE ORDER OR SUCH OTHER ADDRESS AS ANY PARTY MAY IN THE FUTURE SPECIFY IN WRITING TO THE OTHER PARTY.
29. SEVERANCE
IF ANY TERMS OR PROVISION OF THESE TERMS SHALL BE HELD TO BE ILLEGAL OR UNENFORCEABLE IN WHOLE OR IN PART UNDER ANY ENACTMENT OR RULE OF LAW, SUCH TERMS OR PROVISIONS SHALL TO THAT EXTENT BE DEEMED NOT TO FORM PART OF THESE TERMS AND THE ENFORCEABILITY OF THE REMAINDER OF THESE TERMS SHALL NOT BE AFFECTED.
30. WAIVER
EXCEPT AS OTHERWISE SET FORTH HEREIN, NO FAILURE TO EXERCISE, OR DELAY IN EXERCISING, ANY RIGHTS, REMEDY, POWER OR PRIVILEGE ARISING FROM THE PURCHASE ORDER WILL OPERATE OR BE CONSTRUED AS A WAIVER THEREOF. WAIVER BY EITHER PARTY OF ANY DEFAULT OF THE OTHER WILL NOT OPERATE TO EXCUSE THE DEFAULTING PARTY FROM FURTHER COMPLIANCE WITH THIS CONTRACT, NOR WILL ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, REMEDY, POWER OR PRIVILEGE HEREUNDER PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, REMEDY, POWER OR PRIVILEGE.
Updated: December 2023
