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EXHIBIT 10.46
PURCHASING AGREEMENT
Healthtrust Purchasing Group
Hospital Products
SRI/Surgical Express, Sterile Recoveries, Inc. (Vendor)
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SURGICAL PRODUCTS & SERVICES (Products)
MAY 1, 2001 (Effective Date)
Table of contents
1.0 Definitions.......................................................... 3
2.0 Relationship; Purchases/Distribution; Term; Capital Investment Risk.. 5
3.0 GPO Fees, Rebates, Reporting, Prices................................. 6
4.0 Electronic Data Interchange.......................................... 8
5.0 Price Warranty....................................................... 8
6.0 State Sales Or Use Taxes............................................. 9
7.0 Vendor Delivery Performance and Purchaser Service.................... 9
8.0 Product Shipment, Risk Of Loss, Freight Payment and Title............ 10
9.0 Warranties and Disclaimer of Liability............................... 11
10.0 Inspection........................................................... 13
11.0 Indemnity............................................................ 13
12.0 Confidentiality...................................................... 14
13.0 Publicity............................................................ 15
14.0 Insurance............................................................ 15
15.0 Order Cancellation................................................... 16
16.0 Termination of Agreement or of Sole / Dual Source Status............ 16
17.0 Books, Records and Compliance Requirements........................... 17
18.0 Reports.............................................................. 19
19.0 Assignment........................................................... 20
20.0 Merger Of Terms, Modification, and Conflict of Terms................. 20
21.0 Partial Invalidity................................................... 20
22.0 Purchase Order Terms................................................. 20
23.0 Personal Inducements................................................. 21
24.0 Vendor Relations Policy.............................................. 21
25.0 Controlling Law...................................................... 21
26.0 Legal Fees........................................................... 21
27.0 Product Bar Coding................................................... 21
28.0 Minority Businesses Enterprises...................................... 21
29.0 Notices.............................................................. 22
Exhibit A
Exhibit B
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PURCHASING AGREEMENT
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Healthtrust Purchasing Group
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Hospital Products
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This Purchasing Agreement (the "Agreement"), dated May 1, 2001, is entered into
by Healthtrust Purchasing Group, L.P., a Delaware Partnership, having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
referred to as "HPG"), and the following entity:
SRI/Surgical Express, Sterile Recoveries, Inc.,
Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Vendor"), for the primary purpose of establishing
the terms and conditions for members of HPG, to purchase certain products and
services from Vendor.
WHEREAS, HPG is organized as a group purchasing organization with
various healthcare providers belonging to HPG as Participants (as is hereinafter
defined);
WHEREAS, Participants have entered into agreements with HPG
("Participation Agreements") which permit Participants to obtain products and
services under purchasing agreements between HPG and its vendors, provided
Participants comply with the purchaser obligations stated in the supply
agreements and Participants' obligations under the Participation Agreements; and
WHEREAS, Vendor desires to offer certain of its products and/or
services to Participants.
NOW, THEREFORE, HPG and Vendor hereby agree that Vendor shall provide
its products and/or services to Participants in accordance with the following
terms and conditions set forth herein:
1.0 Definitions
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1.1 "Affiliates" as applied to any particular entity, is defined as
those entities, businesses, facilities, and enterprises, that
are controlled by, controlling, or under common control with a
stated entity, including, without limitation, all parent
corporations and their respective subsidiaries and affiliates,
joint ventures, partnerships, limited liability companies and
partnerships, together with any and
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all entities and businesses to which any of the above described
entities provide management services or purchasing services.
"Control" as used herein means control through ownership of more
than a majority interest in an entity, or control by contract.
1.2 "Agreement" shall be defined as this Purchase Agreement, Exhibit
A, Exhibit B, and any additional Exhibits and attachments
referenced herein.
1.3 "Commencement Date" shall be defined as the date Vendor will
begin receiving orders from Purchaser for purchase of Products
and Services pursuant to this Agreement.
1.4 "Distributor" shall be defined as a product distributor
designated by HPG to distribute Products to Participants on
behalf of Vendor.
1.5 "Dual Source Award" shall be defined as an agreement by HPG not
to contract with more than one alternative supplier pursuant to
which Participants can purchase products and services comparable
to those listed in Exhibit A during the Term.
1.6 "Effective Date" shall be defined as the date first stated in
the opening paragraph to this Agreement, unless otherwise stated
herein or in an Exhibit hereto.
1.7 "Multi-Source Award" shall be defined as Vendor being designated
as an approved source of Products and/or Services listed in
Exhibit A with no limitation on HPG contracting for Participants
to purchase comparable products and services from alternative
suppliers under their contracts with HPG.
1.8 "Participant(s)" shall be defined as member(s) of HPG who have
entered into a written agreement with HPG that permits
Participants to purchase products and services from various
vendors having purchasing agreements with HPG ("Participation
Agreement").
1.9 "Optional Source Award" shall be defined as Vendor being
designated as an approved source of the Products and/or Services
listed in Exhibit A with no limitation on HPG or Participants
contracting for purchasing comparable products and services from
alternative suppliers or on Participants purchasing similar
products and services from alternative suppliers on a non-
contract basis.
1.10 "Products" shall be defined as those goods listed in Exhibit A
to this Agreement.
1.11 "Purchaser" shall be defined as any Participant, or facility
that is an Affiliate of a Participant, obtaining Product and/or
Services from Vendor under this Agreement.
1.12 "Services" shall be defined as those services listed in Exhibit
A to this Agreement as well as any services provided by Vendor
in connection with any Purchaser's purchase and/or use of
Products.
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1.13 "Sole Source Award" shall be defined as an agreement by HPG not
to contract with any alternative supplier pursuant to which
Participants can purchase products and services comparable to
those listed in Exhibit A during the Term.
1.14 "Term" shall be defined as the period this Agreement is in
effect, commencing on the Effective Date and expiring on the
Expiration Date specified in Exhibit B to this Agreement.
2.0 Relationship; Purchases / Distribution; Term; Capital Investment Risk
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2.1 HPG represents and Vendor recognizes that HPG is a group
purchasing organization. The parties acknowledge that it is
their intent to establish a business relationship in which
payments by Vendor to HPG and Purchasers comply with the
exceptions to the Medicare and Medicaid Anti-Kickback statute
set forth at 42 U.S.C. (S) 1320a-7b(b)(3) (A) and (C), the "safe
harbor" regulations regarding discounts set forth in 45 C.F.R.
(S) 1001.952(h), and the "safe harbor" regulations regarding
payments to group purchasing organizations set forth in 45
C.F.R. (S) 1001.952(j); and the parties believe that the
relationship contemplated by this Agreement is in compliance
with those requirements.
2.2 HPG and Vendor hereby agree that they are entering into this
Agreement on an "Optional Source Award" basis unless otherwise
designated in Exhibit B to this Agreement. SRI-Surgical Express
shall be the primary vendor for the supply of sterile and non
sterile reusable packs through its direct distribution network.
2.3 All facilities of Participants qualifying under the definition
of Purchasers and located in the United States or its
territories shall be eligible to obtain Products and/or Services
from Vendor under this Agreement, including but not limited to
acute care facilities, hospitals, ambulatory surgery centers,
alternate site entities, physician practices, clinics or any
other kind of healthcare providers, as well as any Participant
distribution centers qualifying as an Affiliate and servicing
only such Participant's healthcare providers. HPG shall provide
a list of eligible Purchasers, including additions, deletions,
and revisions, updated on a monthly basis and Vendor agrees to
promptly update its list of eligible Purchasers to include such
additions, deletions and revisions to accurately reflect the
name, address and COID for each eligible Purchaser.
2.4 Payment for purchases made by Purchasers under this Agreement
shall be the sole responsibility of the Purchaser and HPG shall
have no responsibility or obligation for such payments.
2.5 Upon receipt of an order from Purchaser (regardless of form or
media used), unless Product is designated in Exhibit A as
available only through a distributor, Vendor agrees to sell and
deliver to Purchaser, the Products and/or Services listed in the
order at the prices set forth in Exhibit A (including any
discounts or rebates stated in Exhibit A), subject to and in
accordance with the terms and conditions stated in this
Agreement and any exhibits hereto. No minimum quantity or dollar
amount shall apply to any order unless expressly stated in
Exhibit B to this
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Agreement. If any Product is designated as available only
through a distributor, then Vendor's shipments of Product shall
be to the Distributor designated by HPG and the terms and
conditions of this Agreement which apply to shipment from Vendor
to Purchaser shall not be applicable; and the prices listed in
Exhibit A shall be the prices Vendor charges the Distributor,
with the ultimate price paid by Purchaser determined by HPG and
the Distributor. Otherwise, with respect to purchases of
Products through distributors, all other terms and conditions of
this Agreement shall apply to each purchase transaction by a
Purchaser. Vendor shall assume total responsibility for
obtaining from distributors purchase information for each
Purchaser so that Vendors accurately pay and report on GPO fees
and rebates (if any).
2.6 Subject to the termination provisions of Section 16, this
Agreement shall have a Term commencing on the Effective Date and
expiring on the Expiration Date specified in Exhibit B to this
Agreement, with the obligation of Vendor to first make Products
and/or Services available hereunder beginning as of the
Commencement Date. Except as otherwise provided herein, the
provisions of this Agreement, including prices, shall remain in
effect for the duration of the Term. Prices for Products and/or
Services may not be increased except pursuant to a written
amendment to this Agreement, that has been signed by both
parties.
2.7 Vendor assumes the full and complete risk of any capital
investments Vendor makes to enable or enhance its capabilities
to serve HPG and to provide Products and Services to Purchasers
under this Agreement. In no event will HPG, any Participant of
HPG, or any Purchaser assume any financial or other risk
associated with capital investments made by Vendor as a result
of or related to this Agreement.
2.8 The terms set forth in this Agreement shall apply to each order
by Purchaser, whether such order is communicated by Purchaser's
Purchase Order form, EDI, internet e-commerce, facsimile,
orally, or any other method, or whether reference is made to
this Agreement.
3.0 GPO Fees, Rebates, Reporting, Prices
------------------------------------
3.1 In consideration for the administrative and other services HPG
shall perform in connection with purchases of Products and
Services under this Agreement by Purchasers , Vendor agrees to
pay HPG GPO fees as provided in Exhibit B to this Agreement
("GPO Fees"). If a percentage is listed in Exhibit B for the GPO
Fee, the percentage shall be applied against the net dollar
volume of purchases of Products and Services by Purchasers
during the applicable time period, (i.e., total sales less
refunds and credits on returns, rebates and discounts). The
payment of such GPO Fees is intended to be in compliance with
the exception to the Medicare and Medicaid Anti-Kickback Statute
set forth at 42 USC (S) 1320a-7b(b)(3)(C) and the "safe harbor"
regulations set forth in 42 C.F.R. (S) 1001.952(j). The GPO Fees
for purchases under this Agreement during each calendar quarter
during the Term shall be paid to HPG within thirty (30) days
from the end of the
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calendar quarter. Vendor shall provide electronic reports with
each GPO Fee payment that accurately list purchases upon which
GPO Fees are based by Purchaser for the applicable quarter.
3.2 Vendor agrees to pay rebates based on purchases of Products
and/or Services by Purchasers in the amounts stated in Exhibit A
to this Agreement, if any is stated therein. Rebates shall be
payable to HPG for payment by HPG to Participants/Purchasers and
shall be based on purchases by Purchasers under this Agreement
made during each calendar quarter during the Term within thirty
(30) days from the end of the calendar quarter. The payment of
rebates is intended to be in compliance with the exception to
the Medicaid and Medicare Anti-Kickback Statute set for at 42
USC (S) 1320a-7b(b)(3)(A) and the "Safe Harbor" regulations set
forth in 42 CFR (S) 1001.952(h). Vendor shall provide electronic
reports with each rebate payment that contain sufficient detail
to permit HPG to accurately pay the appropriate amounts to each
Participant/Purchaser.
3.3 The Vendor reports submitted pursuant to Paragraph 3.1 and 3.2
shall include a listing of each Purchaser by the Purchaser
"COID" number supplied with HPG's list of eligible Purchasers.
If Vendor uses its own customer identification number, then
Vendor shall also provide a cross-reference to each Purchaser by
the Purchaser "COID" number.
3.4 Vendor acknowledges that failure to promptly pay rebates or to
submit accurate reports will delay HPG's payment of rebates to
Participants and Purchasers, thereby potentially causing
Participants and Purchasers to be unable to accurately complete
cost reports required under United States government reimbursed
healthcare programs.
3.5 HPG shall have the right to charge, and Vendor agrees to pay, a
fee equal to one percent (1%) per month (or the maximum allowed
by law, whichever is less) of the amount of any GPO Fees and
Rebates not paid in accordance with the above time requirements.
Timely payment without the required reports shall be considered
as non-payment until reports meeting the above requirements have
been delivered to HPG.
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3.6 GPO Fees and Rebates shall be sent to HPG as follows:
For wire payments: Healthtrust Purchasing Group
C/o Wachovia Bank
ABA #▇▇▇▇▇▇▇▇▇
Account #8739009157
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
For checks: Healthtrust Purchasing Group
Lockbox 751576
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.7 In addition to the Product pricing listed in Exhibit A to this
Agreement, on or prior to the Effective Date, Vendor agrees to
provide HPG with an electronic copy of Exhibit A that conforms
with standards set forth by HPG.
4.0 Electronic Data Interchange
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Order placement, order confirmation, change orders and invoices for
Products and Services obtained pursuant to this Agreement shall be
sent by use of Electronic Data Interchange ("EDI"), except where a
Vendor or Purchaser does not have EDI capability or as otherwise
authorized pursuant to Exhibit B. Vendor acknowledges that many
Participants will transition from EDI ordering systems to internet
based electronic market place systems for order placement and
confirmation and agrees to implement the e-commerce system offered by
"▇▇▇▇▇▇▇.▇▇▇" in accordance with terms mutually agreed to between
▇▇▇▇▇▇▇.▇▇▇ and Vendor. Vendor agrees to reasonably cooperate with HPG
and ▇▇▇▇▇▇▇.▇▇▇ in facilitating efficient transactions between HPG
Participants and Facilities, and if applicable, any distributor,
through the ▇▇▇▇▇▇▇.▇▇▇ e-commerce system. Vendor acknowledges that
there is a cost associated with access to and use of the
▇▇▇▇▇▇▇.▇▇▇ e-commerce system and that the Vendor will not have access
to the e-commerce system unless it negotiates a user agreement,
including its financial terms, with ▇▇▇▇▇▇▇.▇▇▇.
5.0 Price Warranty
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5.1 Vendor represents and warrants that the prices charged for the
Products and/or Services purchased hereunder, net of all
discounts and rebates, do not exceed Vendor's net prices for the
particular Products and/or Services charged to others who are the
same class of purchaser as are Purchasers and who purchase in
comparable volume and terms of purchase.
5.2 If Vendor provides any general price decreases for Products to a
substantial number of its customers during the Term, Vendor
agrees to make such decreases available to Purchasers immediately
and in like amounts.
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5.3 Purchaser shall have the right to set-off against any amount it owes
to Vendor, the amount of any claim Purchaser may have against Vendor
as a result of Vendor's breach of its representations, warranties, and
obligations contained in this Agreement or any other agreement between
Vendor and Purchaser and/or Affiliates of Purchaser.
6.0 State Sales Or Use Taxes
------------------------
6.1 Vendor shall collect from Purchaser and remit to the state wherein
each Purchaser is located, all proper sales and use taxes imposed by
that State on any transactions by Purchaser under this Agreement, if
any. Each invoice to Purchaser shall clearly and separately state the
amount of such tax.
6.2 Vendor shall furnish to HPG and each Purchaser, upon request, an
electronic file of tax rates by item and by taxing authority to help
ensure Purchaser's item files reflecting the taxable status and
taxable amounts are reconciled for each Product item purchased from
Vendor. An indication of taxable status shall be provided for each
invoice line item on all invoices to allow each Purchaser to identify
any discrepancies noted on the taxable amount. Vendor shall furnish to
HPG and each Purchaser, upon request, a copy of Vendor's registration
certificate and number within each taxing jurisdiction prior to
collecting such sales or use taxes. If a Purchaser's purchase is tax
exempt, such Purchaser shall furnish Vendor with any documents
necessary to demonstrate its tax-exempt status.
6.3 Vendor shall provide to each Purchaser, upon request, Vendor's Federal
Tax Identification number.
7.0 Vendor Delivery Performance and Purchaser Service
-------------------------------------------------
7.1 Vendor warrants that it shall maintain in inventory at appropriate
locations, sufficient quantities of each Product and shall both choose
a transportation mode and carrier and provide said carrier with
appropriate instructions, to ensure that any Purchaser ordering
Product will receive delivery within seven (7) calendar days of the
date the order is received by Vendor, unless a different delivery
schedule is stated in Exhibit A or B, in which case the stated
delivery schedule time period in Exhibit A shall apply to this
warranty. This delivery performance warranty shall become effective
with respect to each such Product, thirty (30) calendar days from the
Effective Date of this Agreement, if such Product is listed in Exhibit
A, or from the date such Product is later added to Exhibit A of this
Agreement.
7.2 If Vendor anticipates that it will not be able to deliver any
particular Product ordered by any Purchaser within the later of (i)
seven (7) calendar days following either the date of receipt of the
order (or within the delivery schedule of Exhibit A or B, if
applicable) (ii) or the date of delivery stated in the order, Vendor
shall immediately notify the Purchaser and work with the Purchaser to
resolve the supply issue to Purchaser's satisfaction. This resolution
may include assistance in
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the identification and location of an acceptable substitute at the
same or lower pricing as the unavailable Product. Vendor shall be
responsible for paying additional costs for any expedited shipment of
Products required to meet the delivery obligations stated in this
Agreement. However, Purchaser shall be required to pay any additional
freight charges for any shipment where Purchaser requests a delivery
period shorter than that stated in this Agreement. Payment of such
additional shipping charges shall be in accordance with the Freight
Payment terms of Exhibit B.
7.3 If Vendor is unable to ship Product or provide Services within the
time periods specified in this Agreement or applicable order,
Purchaser shall have the right to either cancel the order, in whole or
part, to accept alternative delivery dates, or to order a replacement
from another source, in addition to any other rights of Purchaser
arising under this Agreement or by law. If Vendor backorders Product
for any order or portion thereof which it is unable to ship for
delivery within the required time period, and Purchaser does not
cancel such order, or portion thereof, any incremental expedited
freight charges associated with shipment of the Product back ordered
shall be paid by Vendor, even if Purchaser requested such expedited
shipment.
7.4 If a competitive product must be purchased by Purchaser at a higher
net cost, including freight, as a substitute for the Product not
delivered by the Vendor within the required time period, Vendor shall
reimburse Purchaser for the additional reasonable cost incurred.
7.5 Vendor shall provide Purchaser Service support staff for receipt of
telephone calls and facsimiles from Purchasers and HPG for the purpose
of resolving issues related to this Agreement. Vendor's Purchaser
Service representatives shall be available between 8:00 A.M. and 8:00
P.M. Eastern time, Monday through Friday, except for holidays.
7.6 Neither Purchaser nor HPG shall be deemed to be in breach of any Sole
Source Award or Dual Source Award terms of this Agreement (if any) as
a result of the purchase of replacements for Product that Vendor is
unable to provide as required by the terms of this Agreement.
8.0 Product Shipment, Risk Of Loss, Freight Payment and Title
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8.1 Terms for shipment of Product, freight payment responsibility and
transfer of title shall all be in conformance with the provisions in
this Section 8 and Exhibit B to this Agreement.
8.2 Vendor assumes all responsibility for proper packaging of Products for
safe shipment to Purchaser, in accordance with both the packing and
shipping regulations of the transportation service provider, and also,
if applicable, the packaging, marking, labeling and shipping paper
requirements of the US Department of Transportation's Hazardous
Material Regulations.
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8.3 Title and risk of loss or damage pass to Purchaser upon receipt of
goods.
8.4 No "Handling" or "Shipping and Handling" charges shall be added to the
invoice or paid by Purchaser. Purchaser shall have no obligation to
pay "Handling" and "Shipping and Handling charges".
8.5 If Vendor receives any rebate from a transportation provider,
attributable either in whole or in part to a shipment made pursuant to
this Agreement, wherein payment for freight is either freight collect
or separately billed to Purchaser, Vendor shall remit the rebate, or a
pro-rata portion thereof, to Purchaser.
9.0 Warranties and Disclaimer of Liability
--------------------------------------
9.1 Vendor warrants to HPG and Purchasers that at the time of sale the
Products:
9.1.1 are new and not used, remanufactured or reconditioned (unless
specified in the order); unless they are provided as reusable
Products to be returned to Vendor for reprocessing after use,
e.g., (gowns, basins).
9.1.2 are fit and sufficient for the purposes intended;
9.1.3 are merchantable, of good quality and free from defects,
whether patent or latent, in design, materials or workmanship;
9.1.4 conform to or exceed United States government approved grading
applicable at time of shipment to Purchaser (if any);
9.1.5 conform to all applicable federal, state and local laws,
regulations and ordinances, including Federal Drug
Administration rules, regulations, guidelines and required
approvals, as well as requirements imposed by the Joint
Commission on Accreditation of Healthcare Organizations
("JCAHO") and Medicare/Medicaid conditions of participation;
and
9.1.6 conform with statements in Vendor's advertising literature,
user documentation, specifications, and written warranties for
the Products;
9.1.7 are listed with Underwriters Laboratory or a nationally
recognized testing laboratory as suitable for use in a
healthcare facility, if such listing is available for
Products;
9.2 Vendor further warrants to HPG and Purchasers that it has good title
to the Products supplied and that the Products are free and clear from
all liens and encumbrances.
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9.3 Vendor represents that it has investigated the design and
specifications for all Products, including any design and
specifications furnished by HPG or any Purchaser, to determine if any
of the Products infringe the patent, trademark or copyrights of any
third party, and has determined that, and hereby expressly warrants
that the Products and the use thereof by Purchaser in the manner
intended by Vendor do not infringe the patent, trademark or copyrights
of any third party. To the extent Purchaser's purchase and/or use of
any Products infringes any intellectual property rights owned by
Vendor or any Affiliates of Vendor, provided Purchaser has paid the
purchase price for Products, Vendor hereby expressly grants Purchaser
a non-exclusive license under such intellectual property rights to use
the Products.
9.4 If Vendor is required to provide any Services under this Agreement,
Vendor expressly warrants to HPG and Purchasers that such Services
shall be performed timely, in a ▇▇▇▇▇▇▇-like manner, consistent with
industry standards; in compliance with applicable federal, state and
local laws and regulations; and otherwise in conformance with any
standards provided in an exhibit to this Agreement.
9.5 The express warranties provided in this Agreement, together with any
additional warranties of Vendor, shall run to Purchaser, its
successors and permitted assigns and shall survive termination of this
Agreement.
9.6 In the event any Product is to be recalled, whether voluntarily or as
required by a governmental entity, Vendor shall assume all
responsibility and costs for implementing such recall. Vendor shall
manage the recall in accordance with applicable laws, regulations and
government directives, and assume responsibility for communicating
necessary details on the recall to all Purchasers. Vendor shall pay
all freight costs incurred for the return of recalled Products and
shall credit or reimburse each Purchaser for Purchaser's original
costs, including freight, in acquiring Product.
9.7 Vendor represents that it has and maintains a Disaster Recovery Plan
to ensure delivery of Product in the event of a natural disaster at
its primary manufacturing and distribution locations, and agrees to
review such plan with HPG upon request.
9.8 Except as otherwise expressly provided herein, neither party shall be
liable to the other party for the other party's special,
consequential, incidental or indirect damages, however caused, on any
theory of liability, and whether or not they have been advised of the
possibility of such damages.
10.0 Inspection
----------
All Products shall be subject to inspection and approval upon receipt by
Purchaser. Any Products which do not comply with Purchaser's purchase
order or which are defective, whether discovered at time of receipt or at
a later time, may be rejected by Purchaser irrespective of date of payment
therefor. Purchaser may hold any Product rejected for
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reasons described hereunder pending Vendor's instructions, or Purchaser,
at Purchaser's option, may return them to Vendor at Vendor's expense,
F.O.B. Origin, Freight Collect.
11.0 Indemnity
---------
11.1 Vendor agrees to and does hereby defend, indemnify and hold harmless
HPG and each Purchaser, their Affiliates, successors, assigns,
directors, officers, agents and employees ("HPG Indemnitees") from
and against any and all liabilities, demands, losses, damages,
costs, expenses, fines, amounts paid in settlements or judgments,
including without limitation, costs, reasonable attorneys' fees,
witnesses' fees, investigation expenses, cost of management time,
any and all out-of-pocket expenses, consequential damages, and all
other expenses and costs incident thereto (collectively referred to
as "Damages") resulting from: (i) any claim, lawsuit, investigation,
proceeding, regulatory action, or other cause of action, that may be
suffered by reason of any loss, damage, death, injury, and/or other
reason arising out of or in connection with Products furnished or
Services performed by Vendor pursuant to this Agreement ("Injury"),
unless the Injury was caused solely by reason of Purchaser's
negligence; (ii) the breach or alleged breach by Vendor of the
warranties or representations contained in this Agreement or in
materials furnished by Vendor, or (iii) any infringement or alleged
infringement of any patent, trademark, copyright or trade secret
right resulting from the purchase of Products and/or Purchasers' use
thereof, as well as from receipt of any Services provided hereunder.
If the Injury is caused by the negligence of both Vendor and any of
the HPG Indemnities, the apportionment of said Damages shall be
shared between Vendor and such HPG Indemnities based upon the
comparative degree of each party's negligence and each party shall
be responsible for its own defense and its own costs including but
not limited to the cost of defense, attorneys' fees and witnesses'
fees and expenses incident thereto.
11.2 In the event that any demand or claim is made or suit is commenced
against HPG Indemnitees for which Vendor has an indemnity obligation
under Paragraph 11.1 above, written notice of such shall be provided
to Vendor, and such HPG Indemnitees shall cooperate with Vendor in
the defense of the demand, claim or suit to whatever reasonable
extent Vendor requires, and Vendor shall have the right to
compromise such claim to the extent of its own interest and shall
undertake the defense of any such suit. Notwithstanding, if Vendor
fails to assume its obligation to defend, HPG Indemnitees may do so
to protect their interest and seek reimbursement from Vendor. Vendor
consents to venue in and jurisdiction of any court in which a
lawsuit is filed against HPG, Purchaser, HPG Indemnitees, or any of
their Affiliates asserting one or more claims from and against which
Vendor is obligated to defend, hold harmless or indemnify HPG,
Purchaser, HPG Indemnitees, or any of their Affiliates.
12.0 Confidentiality
---------------
12.1 During the term of this Agreement and surviving its expiration or
termination, Vendor will regard and preserve as confidential all
information related to the
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business of HPG, Purchaser and its Affiliates, clients and patients
that may be obtained as the result of performance under this
Agreement. Vendor will not, without first obtaining HPG's prior
written consent, disclose to any person, firm or enterprise or use
for its benefit any information relating to Product prices, pricing
methods, processes, financial data, lists, apparatus, statistics,
programs, research, development or related information of HPG,
Purchaser, or their Affiliates concerning their past, present or
future business activities or plans, and results or terms of the
sale of Products or provision of Services by Vendor under this
Agreement. This confidentiality obligation does not apply to: (a)
information that is publicly known prior to the disclosure or
becomes publicly known through no wrongful act of the Vendor; (b)
information that was in lawful possession of the Vendor prior to the
disclosure and was not received as a result of any breach of
confidentiality with respect to HPG, Purchaser or their Affiliates;
(c) information that was independently developed by Vendor outside
the scope of this Agreement, or (d) information which Vendor is
required to disclose pursuant to court order or regulatory agency
request. In the event of a request for disclosure falling under part
(d) above, immediate notice of such request shall be provided to HPG
and the Purchaser in order to provide an opportunity to oppose such
request for disclosure.
12.2 HPG shall have the right to use Vendor pricing information on
Products and Services for HPG's internal analyses and for creating
pricing evaluations for disclosure to potential Participants
pursuant to a confidentiality agreement. HPG shall also have the
right to disclose such information to third parties under a
confidentiality agreement for performance of such analysis. HPG
shall have the right to disclose the terms of this Agreement to
Participants and to also provide copies of this Agreement to
potential purchasers of any Purchaser being offered for sale by a
Participant, provided such disclosure is made pursuant to the terms
of a confidentiality agreement executed by the potential purchaser.
HPG shall have the right to provide Product and Service pricing
information to third party e-commerce companies which process orders
between Purchaser and Vendor.
12.3 HIPAA Requirements. Vendor agrees to comply with the applicable
------------------
provisions of the Administrative Simplification section of the
Health Insurance Portability and Accountability Act of 1996, as
codified at 42 U.S.C. (S) 1320d through d-8 ("HIPAA"), and the
requirements of any regulations promulgated thereunder including
without limitation the federal privacy regulations as contained in
45 CFR Part 164 (the "Federal Privacy Regulations") and the federal
security standards as contained in 45 CFR Part 142 (the "Federal
Security Regulations"). Vendor agrees not to use or further disclose
any protected health information, as defined in 45 CFR 164.504, or
individually identifiable health information, as defined in 42
U.S.C. (S) 1320d (collectively, the "Protected Health Information"),
concerning a patient other than as permitted by this Agreement and
the requirements of HIPAA or regulations promulgated under HIPAA,
including without limitation the Federal Privacy Regulations and the
Federal Security Regulations. Vendor will implement appropriate
safeguards to prevent the use or disclosure of a patient's Protected
Health Information other than as provided for by this Agreement.
Vendor will promptly report to "HPG and/or Purchaser" any
Page 14 of 25
use or disclosure of a patient's Protected Health Information not
provided for by this Agreement or in violation of HIPAA, the Federal
Privacy Regulations, or the Federal Security Regulations of which
Vendor becomes aware. In the event Vendor, with "HPG and/or
Purchaser's approval, contracts with any Vendors or agents to whom
Vendor provides a patient's Protected Health Information received
from Vendor, Vendor shall include provisions in such agreements
whereby the Vendor and agent agree to the same restrictions and
conditions that apply to Vendor with respect to such patient's
Protected Health Information. Vendor will make its internal
practices, books, and records relating to the use and disclosure of
a patient's Protected Health Information available to the Secretary
of Health and Human Services to the extent required for determining
compliance with the Federal Privacy Regulations and the Federal
Security Regulations. Notwithstanding the foregoing, no attorney-
client, accountant-client, or other legal privilege shall be deemed
waived by Vendor or "HPG and/or Purchaser" by virtue of this
Section.
13.0 Publicity
---------
Vendor agrees not to advertise, publicly disclose, or otherwise publicly
discuss this Agreement, the terms herein, and its business relationship
with HPG, Purchasers, and their Affiliates, except as is required to
perform under this Agreement. Any public announcement of the existence of
this Agreement or the relationship created hereby, must be first approved
by HPG in writing. The text of any proposed announcements shall be
submitted in writing to: Vice-President, National Agreements, Healthtrust
Purchasing Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Approval cannot be
unreasonably withheld before public release of the disclosure submitted
for approval. Any violation of this provision shall be considered a
material breach of this Agreement, conferring on HPG the right to
terminate this Agreement immediately without any right of Vendor to cure
such breach.
14.0 Insurance
---------
During the term of this Agreement, Vendor shall maintain at its own
expense, commercial general liability insurance for bodily injury, death
and property loss and damage (including coverages for product liability,
completed operations, contractual liability and personal injury liability)
covering Vendor for claims, lawsuits or damages arising out of its
performance under this Agreement, and any negligent or otherwise wrongful
acts or omissions by Vendor or any employee or agent of Vendor, with HPG
and Purchasers listed as additional insureds. All such policies of
insurance may be provided on either an occurrence or claims-made basis,
and shall provide limits of liability in the minimum amount of one million
dollars ($1,000,000) per occurrence with an annual aggregate of three
million dollars ($3,000,000). If such coverage is provided on a claims
made basis, such insurance shall continue throughout the term of the
Agreement; and upon the termination of this Agreement, or the expiration
or cancellation of the insurance, Vendor shall purchase or arrange for the
purchase or arrange for the purchase of, either an unlimited reporting
endorsement ("Tail" Coverage), or "Prior Acts" coverage from the
subsequent insurer, with a retroactive date on or prior to the effective
Page 15 of 25
date of this Agreement. Upon HPG's request, Vendor, or Vendor's agent,
shall provide HPG with a copy of all such policies and/or certificates of
insurance satisfactory to HPG, evidencing the existence of all coverage
required hereunder. Vendor shall require its insurance carriers or agents
to provide HPG, and Vendor shall also provide HPG with not less than
thirty (30) days' prior written notice in the event of a change in the
liability policies of Vendor.
15.0 Order Cancellation
-------------------
Purchaser may cancel any order arising out of this Agreement in whole or
in part, without liability if, (i) Products have not been shipped as of
date of receipt of notice of cancellation, (ii) Product deliveries are not
made at the time and in the quantities specified; (iii) Products infringe
or are alleged to infringe any patent, trademark, copyright or trade
secret right or (iv) Products fail to comply with any applicable law or
regulation. To cancel, Purchaser shall give notice to the Vendor in
writing, and to the extent specified therein, Vendor shall immediately
terminate deliveries under the order.
16.0 Termination of Agreement or of Sole / Dual Source Status
--------------------------------------------------------
16.1 Termination with Cause. Vendor and HPG shall both have the right to
----------------------
terminate this Agreement in its entirety in the event of a breach of
the terms hereof by the other party which is not cured within thirty
(30) calendar days following receipt of written notice thereof
specifying the breach.
16.2 Termination without cause. Vendor and HPG shall both have the right
-------------------------
to terminate this Agreement in its entirety without cause by
providing at least sixty (60) days' prior notice, without any
liability to the other party for such termination.
16.3 Remedies. Any termination by either party, whether for default or
--------
otherwise, shall be without prejudice to any claims for damages or
other rights against the other party that preceded termination.
16.4 Change of Control. HPG shall also have the right to terminate this
------------------
Agreement upon thirty (30) days' prior notice upon the transfer,
directly or indirectly, by sale, merger or otherwise, of
substantially all of the assets of Vendor or its ultimate parent or
any permitted assignee (upon assignment to such assignee) or in the
event that more than 49% Vendor ownership interest in or its
ultimate parent or any such permitted assignee is transferred to an
independent third party entity unless new entity agrees to honor all
obligations.
16.5 Inventory of Termination. With respect to any Products that are
-------------------------
available through a third party distributor, upon termination or
expiration of this Agreement, Vendor agrees that it will purchase
from the distributor the Products remaining in distributor's
inventory thirty (30) days following termination or expiration. Such
remaining product shall be shipped back to Vendor freight collect,
FOB origin.
Page 16 of 25
16.6 Termination of Sole / Dual Source Status. Upon fifteen (15) calendar
----------------------------------------
day notice, HPG shall have the right to convert any Sole or Dual
Source Product designation in this Agreement to a "Optional Source"
designation, with no change in pricing from the Sole or Dual Source
pricing, if Vendor fails to maintain at least a 95% fill rate for all
Products for all Purchasers. "Fill rate" as used herein shall be
described as the average of the individual fill rates for all Dual and
Sole Source Products ordered during any calendar month. The fill rate
for any individual Product is the ratio of total units ordered for
such Product divided into the total unit delivered within the delivery
schedule requirements of Section 7 of this Agreement.
16.7 Survival of Terms. Any terms in this Agreement which by their nature
-----------------
must survive after the Term of this Agreement to give their intended
effect shall be deemed to survive termination of this Agreement.
17.0 Books, Records and Compliance Requirements
------------------------------------------
17.1 To the extent the requirements of 42 CFR 420.300 et seq. are
applicable to the transactions contemplated by this Agreement, Vendor
agrees to make available to the Secretary of Health and Human Services
("HHS"), the Comptroller General of the General Accounting Office
("GAO") and their authorized representatives, all contracts, books,
documents and records relating to the nature and extent of costs
hereunder until the expiration of four (4) years after Products and
Services are furnished under this Agreement.
17.2 If Vendor carries out its obligations under this Agreement through a
subcontract worth $10,000 or more over a twelve month period with a
"related" organization, the subcontract will also contain clauses
substantially identical to Paragraphs 17.1 through 17.8 and will
permit access by HPG, the HHS, GAO and their representatives to the
"related" organization's books and records.
17.3 Vendor agrees to comply at all times with the regulations issued by
the Department of Health and Human Services published at 42 CFR 1001,
and which relate to Vendor's obligation to report and disclose
discounts, rebates and other price reductions to HPG and Purchasers
for Products and/or Services purchased under this Agreement. Where a
discount or other reduction in price of the Products is applicable,
the parties also intend to comply with the requirements of 42 U.S.C.
(S)1320a-7b(b)(3)(A) and the "safe harbor" regulations regarding
discounts or other reductions in price set forth at 42 C.F.R.
(S)1001.952(h). In this regard, the parties acknowledge that Vendor
will satisfy any and all requirements imposed on sellers by these
regulations and Purchaser will satisfy any and all applicable
requirements imposed on buyers by these regulations. Thus, in cases
where the Vendor forwards to Purchaser an invoice that does not
reflect the net cost of Products and/or Services to the Purchaser, the
Vendor shall include the following language or comparable language on
such invoice:
Page 17 of 25
"This invoice does not reflect the net cost of supplies to
Purchaser. Additional discounts or other reductions in price may
be paid by Vendor and may be reportable under federal regulations
at 42 C.F.R. (S)1001.952(h)."
In cases where the Vendor forwards to Purchaser an invoice that does
reflect a net cost of Products and/or Services after a discount to the
Purchaser, the Vendor shall include the following language or
comparable language on such invoice:
"This invoice reflects the net price of supplies to Purchaser.
This price is net after a `discount or other reduction in price'
and the net price as well as any discount may be reportable under
federal regulations at 42 C.F.R. (S)1001.952(h)."
In cases where Vendor sends Purchaser an invoice listing charges that
include a capital cost component (e.g., equipment that must be either
capitalized or reported as lease expense) and a operating cost
component (e.g., services and/or supplies), Vendor shall issue
separate invoices to Purchaser for each component. The price for all
capital component items must be reported on the invoice at the net
price, with no discount or rebate to be received separately or at a
later point in time.
17.4 HPG is not a federal government contractor; however some of the
Purchasers that will purchase from Vendor under this Agreement may be
federal government contractors or subcontractors. Vendor acknowledges
that purchase orders by any such entities incorporate the contract
clauses regarding equal employment opportunity and affirmative action
contained in 41 CFR 60-1.4 (Executive Order 11246), 41 CFR 60-250.4
(Vietnam Era Veterans Readjustment and Assistance Act), and 41 CFR 60-
741.5 (Rehabilitation Act).
17.5 HPG shall have the right, during normal business hours and with
reasonable advance notice, to review and photocopy Vendor's books,
documents and records (whether in hard copy, electronic or other form)
that pertain directly to the accounts of HPG, Participants,
Purchasers, and their Affiliates, the fees payable to Vendor under
this Agreement, the GPO Fees and rebates payable by Vendor for the
Products and Services provided by Vendor hereunder. The audit may be
conducted by HPG employees or by an external auditing firm selected by
HPG. The cost of audit, including the cost of the auditors and
reasonable cost of copies of books, documents, and records shall be
paid by HPG. HPG shall have no obligation to pay any other costs
incurred by Vendor, or its employees and agents in cooperating with
HPG in such audit.
17.6 Vendor represents and warrants to HPG, Purchasers and their Affiliates
that Vendor and its directors, officers, and employees (i) are not
currently excluded, debarred, or otherwise ineligible to participate
in the Federal health care programs as defined in 42 USC (S) 1320a-
7b(f) (the "Federal healthcare programs"); (ii) have not been
convicted of a criminal offense related to the provision of healthcare
items or services but have not yet been excluded, debarred, or
otherwise declared ineligible to participate in the Federal healthcare
programs, and (iii) are not under investigation or otherwise aware or
any circumstances which may result in Vendor
Page 18 of 25
being excluded from participation in the Federal healthcare programs.
This shall be an ongoing representation and warranty during the term
of this Agreement and Vendor shall immediately notify HPG of any
change in the status of the representations and warranty set forth in
this section. Any breach of this section shall give HPG the right to
terminate this Agreement immediately for cause.
17.7 Vendor represent and warrants that it has not made, is not obligated
to make, and will not make any payment or provide any remuneration to
any third party in return for HPG entering into this Agreement or for
any business transacted under this Agreement.
17.8 HPG's rights under this Section 17 shall survive for a period of four
(4) years after termination or expiration of this Agreement.
18.0 Reports
-------
Vendor shall be required to furnish to HPG quarterly sales volume reports,
including rebate amounts and GPO Fees earned (excluding payments),
concerning the purchases of Products and Services by each Purchaser at the
following address:
Vice-President, National Agreements
Healthtrust Purchasing Group, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19.0 Assignment
----------
Neither party shall assign this Agreement in whole or in part, or
subcontract their obligations hereunder, without the prior written consent
of the other party. Any assignment or subcontract without such prior
consent shall be void and have no effect. Notwithstanding, HPG may assign
without obtaining consent from Vendor, HPG's rights and obligations under
this Agreement, (a) to any entity which is an Affiliate of HPG, and (b) to
a successor entity of HPG as part of an internal reorganization of HPG
which results in HPG being organized in a different legal entity or
corporate form, whether through conversion or merger. Subject to the
foregoing, all terms, conditions, covenants and Agreements contained herein
shall inure to the benefit of, and be binding upon, any successor and any
permitted assignees of the respective parties hereto. It is further
understood and agreed that consent by either party to such assignment in
one instance shall not constitute consent by the party to any other
assignment.
20.0 Merger of Terms, Modification, and Conflict of Terms
----------------------------------------------------
This Agreement terminates and supersedes any existing agreement between HPG
and Vendor pertaining to the same Products and/or Services. This Agreement,
as executed and approved, shall not be modified except by written
amendment, expressly stating an intent to modify the terms of this
Agreement, and signed by the parties hereto. In the event of any conflict
between the terms herein and the terms of any Exhibit hereto, the
Page 19 of 25
priority for control, from first to last priority, shall be Exhibit B,
Exhibit A, and then the terms herein.
21.0 Partial Invalidity
------------------
In the event that any provision of this Agreement should for any reason be
held invalid, unenforceable or contrary to public policy, the remainder of
the Agreement shall remain in full force and effect notwithstanding.
22.0 Purchase Order Terms
--------------------
The terms of any purchase order issued by a Purchaser shall not apply to
purchases of Products and Services hereunder, except as necessary to
designate specific Products and Services, quantities, delivery dates, and
other similar terms that may vary from order to order; and the terms of
this Agreement, to the extent applicable, shall be deemed incorporated in
such purchase orders. The terms and conditions contained in any invoice,
▇▇▇▇ of lading, or other documents supplied by Vendor are expressly
rejected and superseded by this Agreement and shall not be included in any
contract with Purchaser.
23.0 Personal Inducements
--------------------
No personal cash, merchandise, equipment or other items of intrinsic value
shall be offered by or on behalf of Vendor to HPG or Purchasers and/or
their employees, officers, or directors as an inducement to purchase from
Vendor.
24.0 Vendor Relations Policy. Vendor acknowledges that HPG has a Vendor
------------------------
Relations Policy relating to ethics and compliance issues between suppliers
and HPG, and that it has received a copy of this policy. The Vendor
Relations Policy is also available through the internet at:
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇/▇▇.▇▇▇.▇▇▇.
----------------------------------------------------------
25.0 Controlling Law
---------------
The performance of the parties under this Agreement shall be controlled and
governed by the laws of the State of Tennessee, excluding conflicts of law
provisions, and jurisdiction and venue for any dispute between Vendor and
HPG concerning this Agreement shall exclusively rest within the State and
Federal Courts of Davidson County, Tennessee.
26.0 Legal Fees
----------
In the event of any litigation between Vendor and Purchaser or HPG that
relates to this Agreement, the prevailing party shall recover its costs,
expenses and legal fees (including reasonable attorneys' fees).
27.0 Product Bar Coding
------------------
INTENTIONALLY OMITTED.
28.0 Minority Businesses Enterprises
-------------------------------
Page 20 of 25
28.1 HPG and Vendor hereby acknowledge their respective corporate policies
and practices to encourage the participation of Minority Business
Enterprises ("MBE's") in their procurement processes and their desire
to work together to encourage their use of MBE's in fulfillment of the
obligations under this Agreement. As used in this Agreement, "MBE's
shall be defined to include any company certified as a minority owned
business by the National Minority Supplier Development Council or any
local affiliates thereof, or any Federal, National, State, Municipal,
or Local agencies that certify minority businesses in accordance with
PL. 95-507.
28.2 Vendor recognizes and acknowledges that in conjunction with HPG's
efforts to involve MBE's in its contracting process that HPG may enter
into purchasing agreements with MBE's which will enable HPG
Participants and their Facilities to purchase supplies and/or
equipment equivalent to those listed as Products under this Agreement.
In such event, notwithstanding any other terms of this Agreement to
the contrary, the parties agree that if HPG enters into any such
agreement(s) with any MBE's that such will not be deemed to be a
breach of this Agreement by HPG, nor will any purchases by HPG
Participant or their Facility from MBE's be deemed to be a breach of
this Agreement.
28.3 Vendor shall, on a quarterly basis, identify and report in writing to
HPG, all MBE activities in which it participates, specifically
identifying such activities and purchases relating to Products and
Services obtained under this Agreement. Vendor shall identify in such
reports any first and second tier MBE's it or its subcontractors have
used during the reporting period. The MBE reports shall otherwise
comply with format and content mutually agreed to by both parties. The
MBE contact for Vendor shall be the person listed in Exhibit B. The
MBE contact for HPG shall be:
Director of Diversity Programs
c/o Triad Hospitals, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29.0 Notices
-------
Notices under this Agreement shall all be in writing, effective upon
receipt and shall be sent by any of the following methods (a) facsimile
with return facsimile acknowledging receipt; (b) United States Postal
Service certified or registered mail with return receipt showing receipt;
or (c) courier delivery service with proof of delivery; or (d) personal
delivery. Either party hereunder may change the names and addresses for
receipt of notices by notice given as provided for herein. Notices to
Vendor shall be sent to the person and address listed in Exhibit B. Unless
stated otherwise in this Agreement, notices to HPG shall be sent as
follows:
Page 21 of 25
Vice President, National Agreements
Healthtrust Purchasing Group, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the parties hereby indicate their acceptance of the
terms of this Agreement by the signatures of their authorized representatives.
Healthtrust Purchasing Group, LP: SRI/Surgical Express
a Delaware limited partnership
by CMS GP, LLC
a Delaware limited liability company
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------------------- -------------------------------------------
Title: Vice President, National Agreements Title: Sr. Vice President, Sales & Marketing
--------------------------------------
Date: 4/23/01 Date: 3/26/01
------------------------------------ ----------------------------------------
Vendor Federal Tax ID No.: ▇▇-▇▇▇▇▇▇▇
-----------
Exhibits
--------
A: Products & Services with Prices
B: Specific Purchasing Terms
Page 22 of 25
Exhibit A
Healthtrust Purchasing Group
Purchasing Agreement
No. _________
Vendor: SRI/Surgical Express, Sterile Recoveries, Inc.
Date______________________
Additional Terms and description of Services
1. SERVICES: Vendor will deliver, pick up, decontaminate, package, sterilize
and return to Purchaser the reusable surgical apparel, linens, and
specialty items ("Products") identified on the attached Product/Pricing
sheet.
2. PURCHASER'S RESPONSIBILITIES: Purchaser shall place soiled reusable
Products in receptacles that are to be returned to Vendor and Purchaser
shall give its best efforts not to place any in such receptacles. In the
event Purchaser places Purchaser-owned items into Vendor's approved
receptacles, Vendor shall decontaminate those items and return them to
Purchaser. Vendor and Purchaser will work together to prevent or minimize
such occurrences.
3. DELIVERY SCHEDULE: Vendor shall maintain a regular delivery and pick up
schedule as agreed to by the Purchaser. Such delivery and pick up
obligations will be relieved during any period during which Vendor's
employees do not have access to Purchaser's or Vendor's facilities by
reason of war, flood, storm, military action, nuclear hazard, energy
shortage, utility failure, government action or regulation, fire, riot, act
of God, or any other reason not within Vendor's reasonable control. The
Purchaser is authorized to stock one additional day of inventory above
normal on hand quantities on all such items deemed by the Purchaser to be
critical and necessary.
4. TITLE TO PRODUCT: All reusable Products supplied to Purchaser shall remain
the property of Vendor and are supplied for the exclusive use of Purchaser.
5. PRODUCT DAMAGE OR LOSS: Vendor will bear all costs of loss, damage and
repairs to Products. Vendor will review with Purchaser any Product returns
which are deemed by Vendor to be damaged beyond repair (normal wear
excepted) and Purchaser shall, within thirty (30) days, provide
Vendor/Surgical Express inservice time to re-inservice Purchaser's staff on
proper care and handling.
6. PRICING TERMS AND CONDITIONS: Service will be provided, and Purchaser
shall pay for such Service, at the prices set forth in Exhibit A. If
Purchaser is an existing customer of Vendor and receiving better pricing
for any products listed in Exhibit A, then Vendor will continue to provide
Purchaser with the better pricing until existing Service Agreement expires.
All Product inventory must be returned to Vendor within four (4) weeks or
one week for instrumentation of the delivery date. No credit will be issued
for unused inventory. All inventory not returned within four (4) weeks
will be subject to a monthly rental charge equal to the individual rental
prices set forth in Exhibit A. A packing slip shall accompany each Product
delivery and Purchaser will be invoiced weekly for the prior week's
shipment/service. Purchaser agrees to notify Vendor of any problem invoices
at the earliest possible date. All charges are exclusive of applicable
federal, state, or local taxes, unless Purchaser supplies an exemption or
direct payment certificate. Purchaser shall pay, or reimburse Vendor for
paying, any such taxes, and Vendor may add such taxes to its invoices.
Initial
HPG_______
Vendor_______
Page 23 of 25
Exhibit B
Healthtrust Purchasing Group
Purchasing Agreement
No. _________
Vendor: SRI/Surgical Express, Sterile Recoveries, Inc.
Date______________________
Specific Purchasing Terms
Award Basis:
-----------
Applicable Products / Services
Optional Source Award All Services
------------
Exclusive/Primary Reusable packs and gowns
Term: Commencement Date: May 1, 2001
----
Expiration Date: April 30, 2004
Prior Agreement: The (N/A) agreement with Vendor is superceded by this
--------------- Agreement.
GPO Fees: ____3%________________________________________
---------
Ordering Process: [_]Internet [_]EDI [_]Purchase Order
---------------- [_]Verbal [_]Facsimile [_]Other
Payment Terms: Net due fifteen (15) days from receipt of invoice
-------------
Delivery Time: Seven (7) calendar days from receipt of order
-------------
Delivery Terms:
--------------
Origin: [X] Vendor (direct) [_][_] Distributor
Purchaser's agreement with the
distributor shall control.
[_][_]Both of the above apply.
Freight / Shipping Charges:
--------------------------
[_][_] Freight/shipping charges are not included in the Product price
and shall be "prepaid" by Vendor and added to the invoice as a
separate line item that is identified as either a "freight" or
"shipping" charge. The freight/shipping charge shall not include
any additional amounts for shipping for which Vendor is
responsible pursuant to paragraphs 7.2 and 7.3 of the Agreement.
Page 24 of 25
[X] Freight/shipping costs are included in the Product price, subject to
Purchaser's obligations for additional freight/shipping charges as
stated in paragraph 7.2 of the Agreement.
[_][_] Freight collect via carrier designated by Purchaser or HPG.
Training, Repair, Safety:
------------------------
Operator Training provided to each Purchaser by Vendor: __Inservice available
throughout term of agreement_____________________________
Preventative maintenance and repair instruction to be supplied to each Purchaser
by Vendor: ___N/A____________________________
Repair and replacement parts lists, ordering instructions, and alternative
sources of parts to be supplied to each Purchaser by Vendor: _All instructions
included during inservicing an attached service
agreement.______________________________
Vendor shall provide each Purchaser Material Safety Data Sheets (MSDS) for all
material/chemical Product purchases in compliance with OSHA standards and those
of any other applicable federal, state or local law or regulation.______________
Vendor Contacts for Notices:
---------------------------
Vendor's MBE Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President of Sales, Business Development
SRI/Surgical Express, Sterile Recoveries, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vendor's contact for notices under the Agreement:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President of Sales, Business Development
SRI/Surgical Express, Sterile Recoveries, Inc.
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Vendor's contact for receiving updated lists of Participants:
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Vice President of Sales, Business Development
SRI/Surgical Express, Sterile Recoveries, Inc.
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Initial:
HPG__________
Vendor__________
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