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Terms of Purchase

  1. Acknowledgment & Acceptance. By accepting the Purchase Order (“PO”), Seller agrees to the following terms and conditions (“T&Cs”). Seller’s acceptance of the PO shall be conclusively affirmed by any one of the following: (a) Seller’s acknowledgment of the PO; (b) Seller’s shipment of Goods; (c) Seller’s performance of services; or (d) Seller’s acceptance of payment. “Goods” is defined as the materials, products or services to be purchased or to be supplied as set forth in the PO. “Seller” is defined as the party supplying Goods to SI-BONE.
  2. Entire Agreement. The PO and these T&Cs constitute the entire agreement of the parties with respect to the purchase of the Goods. Conflicting, differing or additional terms contained in any other document (including but not limited to agreements, quotations, order acceptances, confirmations, or invoices) are hereby rejected and shall have no effect unless expressly agreed to in a writing signed by an authorized SI-BONE representative.
  3. Title and Risk. Title and all risk of loss shall remain with the Seller until the Goods are delivered to the location designated by SI-BONE. Passing of title and risk of loss shall not affect SI-BONE’s right to reject the Goods.
  4. Payment Terms. Unless otherwise stated in the PO, SI-BONE will pay Seller within 45 days of the date of delivery, the date of acceptance, or the date SI-BONE received an invoice, whichever is later. Seller will pay all freight, insurance and other shipping expenses and all sales, use and other applicable taxes, duties and similar charges that are assessed against the Goods.
  5. Delivery. Time is of the essence. Failure to deliver on the date specified in the PO shall be considered a material breach and shall entitle SI-BONE to any or all of the following: (a) cancel the order without penalty to SI-BONE; (b) refuse to accept any subsequent delivery of the Goods; (c) recover from Seller any and all costs reasonably incurred by SI-BONE in obtaining substitute Goods from another source, including but not limited to the difference in the price of the Goods; and/or (d) recover from Seller any and all pre-payments and any and all damages relating to Seller’s failure to deliver the Goods on time. Whenever any event delays or threatens to delay timely performance, Seller will immediately notify SI-BONE in writing and furnish all relevant details. Such notice will not constitute a waiver of Seller’s delivery time obligations.
  6. Acceptance. Within a reasonable time of delivery and inspection, SI-BONE shall have the right to reject Goods delivered by Seller that do not meet with SI-BONE’s approval, including but not limited to those Goods that are not of the quality, not in the quantity, or that are unfit for the purpose for which SI-BONE requires them or fail to conform to any specifications provided by SI-BONE. Seller shall not deviate from any specifications or requirements provided by SI-BONE and Seller agrees to notify SI-BONE in advance of any changes, alterations, deviations or modifications to any Goods, provided, however, that such notification, even if provided prior to delivery of any Goods, shall not limit any rights or remedies of SI-BONE under these T&Cs and applicable law, including the right to reject any non-conforming Goods. In such case and without any waiver of any other right SI-BONE may have, SI-BONE shall have the right to recover from Seller (a) any and all pre-payments, (b) any and all costs reasonably incurred in obtaining substitute Goods from another seller, including but not limited to the difference in the price of the goods, and (c) any and all damages relating to Seller’s failure to deliver acceptable Goods. The making of any prior payments shall not prejudice SI-BONE’s right to reject. SI-BONE may, at its sole discretion, reject any partial shipment. Acceptance by SI-BONE of any partial shipment of an order will not constitute SI-BONE’s acceptance of the entire order, absent SI-BONE’s written acceptance of such entire order. Rejected Goods and Goods that may be supplied in excess of any quantities ordered herein will be held at Seller’s sole risk and expense, and such Goods may be returned to Seller at Seller’s sole expense. In addition to SI-BONE’s other rights, SI-BONE may charge Seller, and Seller shall pay promptly, all expenses of unpacking, examining, re-packing and re-shipping any such Goods. In the event of the performance of any services or the delivery of any Goods that contain any defect or nonconformity that is not apparent upon examination, all of the remedies provided for hereunder shall be available to SI-BONE. Nothing contained in the PO or these T&Cs shall relieve the Seller in any way from its obligation of testing, inspection, and quality control in full accordance with all industry standards applicable to all Goods and services ordered hereunder.
  7. Termination for Convenience. At any time prior to acceptance, SI-BONE may cancel or reschedule all or part of an order for any or no reason upon written notice to Seller. Seller shall cease work in progress on cancelled orders immediately upon receiving a cancellation notice. In the event of cancellation by SI-BONE for cause, SI-BONE shall not be liable to Seller for any amount, and Seller shall be liable to SI-BONE for any and all damages sustained by reason of the default or failure that gave rise to the cancellation. In the case of cancellations by SI-BONE without cause, SI-BONE shall make reasonable payment for the following: (a) work completed, at full unit price; (b) work in progress, at reasonable cost of completed operations on notice date; and (c) raw materials and purchased parts, at cost to Seller. Any partial or completed work or materials that are paid for by SI-BONE shall, at SI-BONE's option, become the property of SI-BONE. To mitigate SI-BONE’s costs under such circumstances, at the request of SI-BONE, Seller shall use reasonable efforts to sell completed Goods, raw materials and purchased parts to other parties, and any payments received as a result shall be offset against and reduce the amount owed by SI-BONE.
  8. Packaging. Unless otherwise specified, Seller will pack all goods in accordance with good commercial practice and insure safe arrival of goods at SI-BONE. An itemized packing list specifying the shipment contents and the PO Number (PO#) must accompany each shipment.
  9. Confidentiality. Seller acknowledges that the PO, T&Cs, and all supporting documentation, including but not limited to the identity of the items, design, specifications, price and quantity, are considered SI-BONE’s confidential and propriety information. Seller agrees to keep this information strictly confidential and not use or disclose it at any time.
  10. Warranty. Seller warrants that all Goods will (a) be new and free from defects in workmanship, material, and manufacture, (b) comply with the requirements of the PO, including any drawings or specifications incorporated herein or samples furnished by Seller, (c) where design is not SI-BONE’s responsibility, be free from defects in design, (d) be of merchantable quality and be fit for the purpose intended by SI-BONE, (e) be appropriately contained, packaged, marked, and labeled; and (f) be manufactured by Seller or procured by Seller directly from either the manufacturer or the manufacturer’s distributor of record. Seller further warrants that all Goods furnished hereunder (i) will be safe and appropriate for the purpose or purposes for which such Goods of that kind are normally used, and (ii) will be free from any liens, encumbrances or claim of any third party, including any claims of infringement or violation of any patents, copyrights, trade secrets, licenses or other property rights of any third party. The foregoing warranties are in addition to all other warranties, whether expressed or implied, and shall survive any delivery, inspection, acceptance or payment by SI-BONE. All warranties run to the benefit of SI-BONE and its customers. SI-BONE's approval of Seller's material or design, or changes thereof, will not relieve Seller of any warranties. In addition, Goods furnished hereunder will be subject to all written and oral express warranties made by Seller’s agents, and to all warranties provided for by the California Commercial Code.
  11. Assignment. No right or obligation, including the right to receive payments due, may be assigned by Seller without the prior written consent of SI-BONE, and any purported assignment without such consent will be void. SI-BONE may assign its rights at any time.
  12. Advertising. Seller shall not use SI-BONE's name or refer to SI-BONE directly or indirectly in any advertisement or presentation, sales literature, list of Seller’s clients, or news release, or release to any publication without SI-BONE's prior written approval.
  13. Indemnification. Seller (the “Indemnifying Party”) agrees to indemnify and hold SI-BONE and its affiliates, officers, directors, agents and employees (“Indemnitees”) harmless from and against all actions, liabilities, losses, damages, claims and demands whatsoever, including, but not limited to, attorney fees and other expenses ("Claims") that are brought or threatened against the Indemnitees that are related to the Indemnifying Party’s (a) violation of any law or regulation, (b) breach of any term or condition of the PO or these T&Cs, or (c) negligence, recklessness or willful misconduct. The duty to indemnify will not apply to the extent that any Claim arises from the negligence, recklessness, or willful misconduct of an Indemnitee. Seller further agrees to indemnify and hold Indemnitees harmless for any and all Claims alleging that the Goods infringe, misappropriate or violate any United States or international patent, copyright, trade secret or any other third party proprietary or intellectual property right. SI-BONE agrees that Seller has the right to defend, or at its option to settle any such Claim, and Seller agrees, at its own expense to defend, or at its option to settle any such Claim, suit or proceeding brought against SI-BONE on the issue of such infringement, misappropriation or violation of any trade secret or other proprietary right, provided that SI-BONE shall retain the right to procure its own additional counsel, at SI-BONE’s expense, to advise SI-BONE and further defend its interests and that no settlement shall occur without SI-BONE’s written consent. SI-BONE shall notify Seller promptly of any such claim and shall reasonably cooperate with Seller at Seller's expense in the defense thereof.
  14. LIABILITY LIMITATION. IN NO EVENT SHALL SI-BONE BE LIABLE TO SELLER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE). THESE LIMITATIONS SHALL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
  15. Insurance. Seller represents and warrants that Seller has insurance in amounts of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate for workers’ compensation, comprehensive general liability, professional services liability and products liability coverage insuring Seller’s liability and that of Seller’s employees, agents and subcontractors arising out of and in connection with providing the Goods.
  16. Compliance with Laws. Seller warrants that it will comply at Seller’s own expense with all applicable federal, state, and local laws and regulations and industry guidelines. Seller represents and warrants that it has in effect all licenses, permits and government authorizations necessary to provide the Goods.
  17. General Provisions. If any provision of these T&Cs is declared invalid, illegal, or unenforceable, such provision will be severed and all remaining provisions will continue in full force and effect. No failure or delay to exercise any right, power or privilege hereunder will operate as a waiver thereof, and no single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. These T&Cs will be governed by and constructed in accordance with the laws of the State of California without regard to the conflicts of the law principles thereof. The rights and obligations of the parties which by their nature survive termination or completion of the PO and/or these T&Cs, include, but are not limited to, those set forth herein in the paragraphs entitled "Warranty,” "Advertising,” "Liability Limitation,” "Indemnification,” and “Confidentiality,” which shall remain in full force and effect.
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