EXHIBIT 10.3
VENCOR, INC.
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement" is made and entered into as
of the 1st day of October, 1998 by and between Vencor, Inc., a Delaware
corporation, on its own behalf and on behalf of certain owned or
controlled entities listed in Exhibit A ("Buyer") and ▇▇▇▇▇▇▇▇▇▇
Laboratories, Inc., having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Seller").
AGREEMENT:
1. Agreement to Purchase. Upon receipt of a Purchase Order, Seller
agrees to sell and deliver to Buyer, and Buyer agrees to purchase from
Seller, the following described products or services at the prices set
forth herein, subject to and in accordance with the terms and conditions,
covenants and agreements of the Terms and Conditions attached hereto as
Exhibit B and incorporated herein by reference and subject to the terms
regarding quantity contained in such Purchase Order.
2. Products and Prices. See Exhibit C. Pricing firm until
September 30, 2001.
F.O.B.: Destination
Payment Terms: Per Dealer
3. Term. The term of this Agreement shall be for a period
commencing on the 1st day of October, 1998 and expiring on the 30th day
of September, 2001. Terms and condition for this Agreement are firm for
this period, unless specifically provided herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
VENCOR, INC. ▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Operating Officer Title: Vice President, Sales & Marketing
("Buyer") ("Seller")
EXHIBIT B
TERMS AND CONDITIONS
1. Inconsistent Terms. In the event of any inconsistency or
conflict among the terms and conditions of this Agreement, the
inconsistency or conflict shall be resolved by giving the contract
documents the following order of precedence: (a) the standard terms and
conditions contained in this Exhibit, (2) any terms and conditions
expressly incorporated by reference in this Agreement, (3) any other
terms and conditions that may be a part of this Agreement.
2. Changes. Buyer may make changes within the general scope of
this Agreement, but no additional charge not authorized in writing by
Buyer will be allowed. Seller shall notify Buyer within five days after
receipt of a notice of change if the change will affect the delivery
schedule or price.
3. Extras. No additional charges or extras not set out in this
Agreement will be allowed or paid. This includes, without limitation,
freight, packing, marking, handling, expediting, insurance or storage.
4. Variations in Quantities. Any variation between the quantities
specified and the quantities accepted by Buyer will not constitute a
failure by Buyer to comply with this Agreement, provided the variation
does not exceed five percent of the quantities specified. Payment shall
be adjusted accordingly.
5. Right to Inspect Rejected Goods. Payment before inspection of
goods shall not constitute acceptance. Buyer may, but need not, inspect
the goods covered by this Agreement at all reasonable times and places
during their manufacture and before and after delivery; they shall be
subject to final inspection by Buyer and acceptance at destination.
Anything not in accordance with the specifications may, at Buyer's
option, either be returned or held for Seller's instruction. Inspection,
reshipment and return costs incurred with respect to nonconforming or
defective goods will be borne by Seller. Unless Buyer directs, Seller
shall not replace returned goods.
6. Packing. Seller shall package all shipments hereunder in
accordance with the requirements specified in this Agreement or, if such
are not specified, in accordance with standard commercial practices.
Each shipment must contain a packing list indicating purchase agreement
number, item numbers and other identifying information corresponding to
that set out on the face of this Agreement.
7. Marking. Prior to shipment, each package shall be clearly
marked with Buyer's purchase agreement number, shipping symbols, serial
numbers, weights, measurements and other identification as may be
directed by Buyer or reasonably necessary to facilitate due delivery.
8. Price. All prices are for goods delivered F.O.B. to Buyer's
specified destination, freight prepaid, and represent the entire cost to
Buyer, unless specifically stated otherwise. This means that they
include, without limitation, all charges for engineering, labor, overhead
and similar items.
9. Compliance with Laws, Regulations and Codes. Seller warrants
that all goods furnished hereunder will comply with, and be manufactured,
priced, sold and labeled in compliance with applicable federal, state and
local laws, codes, rules, regulations, orders and ordinances, including,
without limitation, environmental protection, energy and labor laws and
regulations and applicable industry codes and standards.
10. Equal Employment Opportunity Policy. As a subcontractor
(as that term is defined in 41 CFR [S] 60-1.3) for Buyer (who is a prime
contractor as that term is defined in 41 CFR [S] 60-1.3), Seller agrees,
if applicable, to comply with the Equal Employment Opportunity policies
provided in Executive Order 11246 (as set forth in 41 CFR [S] 60-1.4(a)
and incorporated herein by reference), the Rehabilitation Act of 1973 (as
set forth in 41 CFR [S]60-741.5(a) and incorporated herein by reference),
and the Vietnam Era Veterans Readjustment Assistance Act (as set forth in
41 CFR [S] 60-250.4 and incorporated herein by reference).
11. Open Records. If applicable to the subject matter of this
Agreement and pursuant to the requirement of 42 CFR 420.300 et. seq.,
Seller hereby agrees to make available to the Secretary of Health and
Human Services (HHS), the Comptroller of the General Accounting Office
(GAO), or their authorized representatives, all contracts, books,
documents and records relating to the nature and extent of costs
hereunder for a period of four years after the furnishing of services
hereunder. In addition, Seller hereby agrees, if any services are to be
provided by subcontract, to require by contract that such subcontract
make available to the HHS and GAO, or their authorized representative,
all contracts, books, documents and records relating to the nature and
costs thereunder for a period of four years after the furnishing of
services thereunder.
12. Confidentiality. During the terms of this Agreement and
surviving its expiration or termination, Seller will regard and preserve
as confidential all information related to the business of Buyer and its
clients and patients that may be obtained by any source as the result of
this Agreement. Seller will not, without first obtaining Buyer's prior
written consent, disclose to any person, firm or enterprise for use for
its benefit any information relating to the pricing, methods, processes,
financial data, lists, apparatus, statistics, programs, research,
development or related information of Buyer, concerning past, present or
future business activities or plans of Buyer, and results or terms of
the provision of services performed by Seller under this Agreement.
Confidential information does not include: (a) information that is in the
public domain prior to the disclosure, becomes part of the public domain
through no wrongful act of the Seller; (b) information that was in lawful
possession of the Seller prior to the disclosure; (c) information that
was independently developed by Seller outside the scope of this
Agreement. Neither Seller nor Buyer shall use the name of the other in
any advertising or publicity releases without securing the prior written
approval of the other.
13. Disclosure. Seller agrees to comply at all times with the
regulation issued by the Department of Health and Human Services,
published at 42 CFR 1001, and which relate to Seller's obligation to
report and disclose discounts, rebates and other reductions to Buyer for
products purchased by Buyer under this Agreement.
14. Warranties.
a. Seller warrants that the products to be supplied under this
Agreement are fit and sufficient for the purpose intended; that they are
merchantable, of good quality and free from defects, whether patent or
latent, in materials or workmanship; and that products sold to Buyer
hereunder conform to or exceed the higher of grading standards recognized
by Seller's industry or United States government approved grading.
Seller further warrants that it has good title to the products supplied
and that the products are free and clear from all liens and encumbrances.
Such warranties, together with any other warranty set forth in Seller's a
advertising literature, and service warranties and guarantees, shall run
to Buyer, its successors and assigns. Seller also warrants that any
services provided hereunder shall (a) be performed in accordance with the
conditions and requirements contained herein and (b) reflect the level of
skill, knowledge and judgment required or reasonably expected of
suppliers supplying comparable services.
b. If Buyer discovers that any item of material or equipment
supplied or services performed by Seller hereunder fails to conform to
the above warranties, then Seller shall, at Buyer's option and at no cost
to Buyer, promptly repair, replace or modify any item of material and
equipment or correct or re-perform any service so that it conforms to
the above warranties. Seller shall provide all labor, engineering,
supervision, equipment, tools and materials necessary to effect the
remedy and shall bear all expenses in connection therewith, including
transportation costs. Seller shall perform its remedial obligations
hereunder in a timely manner consistent with Buyer's reasonable
requirements. If Seller is unable to remedy such nonconformity during a
time period consistent with Buyer's reasonable requirements, Buyer may
undertake to remedy the nonconformity, and in such case Seller shall
reimburse Buyer for any reasonable costs thereby incurred.
15. Indemnity. To the fullest extent permitted by law, Seller
shall indemnify and hold harmless Buyer and Buyer's directors, officers,
agents and employees from and against all claims, losses, liabilities,
damages and expenses (including reasonable attorneys fees) for personal
injury or death of persons (including, but not limited to, Buyer's
employees) and damage to Buyer's property or facilities or the property
of any other person or entity in any manner arising out of, caused by or
connected with this Agreement or any of the material or equipment
supplied or services performed hereunder. Nothing herein shall be
construed as making Seller liable for any injuries, deaths or damages
caused solely by the gross negligence or willful misconduct of Buyer or
its agents or employees. If requested by Buyer, Seller shall undertake
the defense of Buyer and its directors, officers and employees in
connection with any claim or action for which they are entitled to
indemnity under this paragraph.
16. Insurance. Seller shall maintain adequate liability,
employer's liability and workers compensation insurance to protect Buyer
and its agents, employees and contractors with respect to the indemnity
contained in Paragraph 15 and any claims under workers compensation,
safety and health and similar laws and regulations. If requested, Seller
shall furnish evidence of such insurance in form and substance
satisfactory to Buyer.
17. Time of the Essence; Delay. Time is of the essence hereof.
All goods shall be furnished and services rendered by the time or times
specified in this Agreement, provided that Seller shall not be in breach
if any delay is authorized in writing by Buyer or due to an act of
omission of Buyer, fire, unusual transportation delay, strikes or other
labor troubles beyond Seller's control, or other causes beyond Seller's
control. Seller shall give Buyer immediate notice, to be confirmed in
writing, of any such delay.
18. Termination for Cause. Without prejudice to its other
rights and remedies at law and in equity, either party may terminate this
Agreement effective immediately upon written notice if the other party
commits a breach of this Agreement, and such breach is not cured within
10 days following the time the nonbreaching party receives written notice
of the breach. Buyer shall have no further liability hereunder, except
for conforming deliveries previously made.
19. Other Termination. Either party may terminate this
Agreement for any reason upon 30 days written notice. Seller shall
discontinue work under this Agreement immediately upon receipt of such
notice and shall take all necessary steps to protect work completed. At
Buyer's election, Seller shall deliver any portion of the goods, with all
warranties, or shall dispose of such goods as Buyer may reasonably
direct. Seller shall be entitled to (a) the agreed price of all goods
delivered pursuant to this Agreement; (b) all actual costs incurred by
Seller in connection with goods not completed or delivered to Buyer
(except that there shall be no allowance for such goods that are Seller's
standard stock); and (c) a reasonable termination fee intended to
compensate Seller for unrecoverable costs incurred, provided that the
total of such amounts shall not exceed the total price stated in this
Agreement.
20. Bankruptcy. Subject to applicable bankruptcy law, in
the event of any proceeding by or against Seller in bankruptcy,
reorganization or insolvency or for the appointment of a receiver or any
assignment for the benefit of creditors, Buyer may terminate this
Agreement without further liability except for conforming deliveries
previously made.
21. Title and Security Interests. If full or partial payment is
made to Seller prior to the delivery of all goods or the performance of
all services hereunder, title to all goods identified to this Agreement
at the time of such payment or thereafter shall pass to Buyer, and Seller
shall be deemed a bailee of all goods remaining in its possession, but in
no event shall the risk of loss pass to Buyer until the goods are
delivered to the destination specified herein and accepted. Seller
agrees to maintain insurance coverage in types and amount satisfactory to
Buyer for goods that are or become so identified at any time of this
Agreement. Additionally, Seller grants to Buyer a security interest in
all goods that are or may become so identified, which security interest
shall be in addition to all other rights of Buyer under this Agreement or
applicable laws, and Seller agrees to execute financing statements or
such other documents as Buyer may reasonably require to perfect and
protect that interest.
22. Invoices and Payment. If freight charges are to be paid by
Buyer, they shall be shown as a separate item on the invoice and the paid
freight ▇▇▇▇ or receipt must be attached. Delay in receiving accurate
invoices will be considered cause for withholding payment without loss of
cash discount privilege. Discount periods will begin when invoices are
received at Buyer's address indicated on the face hereof. Payment under
this Agreement shall not constitute acceptance of defective items. If
any person or entity asserts a claim or lien against Buyer or its
property or facilities arising out of Seller's performance hereunder,
Buyer shall have the right to retain out of any payments due or to become
due to Seller an amount sufficient to protect Buyer completely from all
claims, losses, damages, and expenses until the breach has been cured or
the claim or lien has been satisfied, terminated or released to Buyer's
satisfaction.
23. Attorneys Fees. Should any litigation ensue between the
parties hereto or their successors or assigns relating to this Agreement,
and should Buyer prevail in any such litigation, Seller shall pay to
Buyer an amount equal to the attorneys fees, plus any other expenses
reasonably incurred by Buyer in relation to any such dispute.
24. Governing Law and Forum Selection. The parties agree that
this Agreement is to be governed by the laws of the Commonwealth of
Kentucky and if either party seeks to resolve any disputes through
litigation, such litigation shall be instituted and prosecuted only in a
state or federal court of appropriate jurisdiction located in Louisville,
Jefferson County, Kentucky.
25. Additional Terms, Purchase Order. Buyer's purchase order
(which can be supplied upon demand) and all of the terms and conditions
thereof are incorporated herein. Any conflicting terms or conditions in
any invoice of documents supplied by Seller are expressly rejected and
shall not be included in any contract with Buyer.
26. Personal Inducements. No personal cash, merchandise,
equipment or other items of intrinsic value shall be offered by or on
behalf of any particular vendor to any facility affiliated with Buyer
and/or its employees or officers as an inducement to purchase from that
vendor.
27. Miscellaneous. This Agreement and the terms and conditions
incorporated by reference or otherwise made a part hereof constitute
the entire agreement of the parties and supersede any prior or
contemporaneous agreements or understandings. Seller shall not assign or
subcontract any right or obligation in this Agreement without Buyer's
prior written consent. Failure by Buyer in any instance to insist upon
observance or performance by Seller of any of the terms, conditions or
provisions of this Agreement shall not be deemed a waiver of any such
terms, conditions or provisions. No waiver shall be binding upon Buyer
unless in writing and signed by Buyer and any such waiver shall be
limited to the particular instance referred to. Payment of any sum to
Seller by Buyer with knowledge of any breach shall not be deemed to be a
waiver of such breach or any other breach. The remainder of this
Agreement will not be voided by the invalidity of one or more of its
provisions. The obligation of Seller in this Agreement shall survive
acceptance of the goods and payment therfor by Buyer. "Buyer" means
Vencor, Inc. or its subsidiary indicated on Exhibit B of this Agreement
and includes its designated representatives, successors and assigns.
"Seller" means the person, firm, corporation or other business entity
indicated on the face of this Agreement.
28. Year 2000. Seller represents and warrants that the
provisions of products and services hereunder shall not be interrupted by
the advent of the new century and that Seller currently is attempting to
resolve the Year 2000 problem as it may relate to Seller's business
operations, to eliminate any date ambiguity in Seller's operating systems
associated with the new century, and to become Century-compliant by
January 1, 2000.
29. Value Added Services. See Exhibit D.
