EXHIBIT 10.6
PREMIER PURCHASING PARTNERS, L.P.
GROUP PURCHASING AGREEMENT
TYPE OF EQUIPMENT: Automated Distribution Systems
& Accessories
EFFECTIVE DATE: June 1, 1997
Between And
Premier Purchasing Partners, L.P. OmniCell Technologies
Three ▇▇▇▇▇▇▇▇▇ Corporate Center ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇ Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Central Vice President
▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇▇
Referred to as "Purchasing Partners" Referred to as "Seller"
INTRODUCTION
This is an agreement (the "Agreement") for Automated Distribution Systems and
Accessories as listed in Exhibit A and as subsequently added to this Agreement
by the mutual written agreement of the parties (collectively referred to herein
as the "Products" or individually as the "Product"). Seller agrees to provide
the Products to Premier Members (as that term is defined in Section 3.1 below)
according to the terms, conditions and prices contained herein. Seller will
provide Purchasing Partners and Premier Members with all clinical and in-service
support and expertise necessary to aid with conversions of Premier Members to
the Products and, if applicable, with all continuing support to maintain the
Product(s).
Purchasing Partners, as it deems necessary, will provide information regarding
this Agreement to the participants in the Premier Group Purchasing Program, will
actively support conversion and commitment to this Agreement and will aid in
communicating with Premier Members.
1. AGREEMENT PERIOD
This Agreement will remain in effect for a period of thirty-six (36) months
commencing on the Effective Date set forth above, unless earlier terminated
pursuant to the terms of this Agreement. This Agreement may be extended, for an
additional two (2) years upon mutual agreement of the parties.
2. PRODUCTS COVERED
This Agreement covers Seller's full line of Products as listed in Exhibit A
and as subsequently added to this Agreement by the mutual written agreement
of the parties.
3. PARTICIPATING PREMIER MEMBERS
3.1 Option to Participate.
For purposes of this Agreement, a "Premier Member" is each current and
future (i) limited partner of Purchasing Partners ("Limited Partner");
(ii) any entity that is owned by or under common control of a Limited
Partner; (iii) individual participants or members of a group affiliate
of Purchasing Partner's corporate affiliate, Premier, Inc. or a direct
affiliate thereof; (iv) affiliate of a shareholder of Premier, Inc.;
(v) any entity that is owned or under common control of an affiliate
of a shareholder of Premier, Inc.; or (vi) any entity that is owned or
under common control of a direct affiliate or a participant or member
of a group affiliate of Premier, Inc., whether for-profit or not-for-
profit, including, without limitation, physicians, home care
providers, home infusion therapy providers, ambulatory care
facilities, outpatient surgery centers, outpatient diagnostic centers,
imaging centers, urgent care facilities, nursing homes, and hospices.
Seller agrees to offer to each Premier Member the Products pursuant to
the terms of this Agreement. A roster of Premier Members current at
the time of the signing of this Agreement is attached hereto as
Exhibit B. Seller shall receive a hard copy roster on a monthly basis
unless the Seller requests the roster on a diskette or via electronic
mail.
3.2 Commitment Requirements
Only Premier Members that execute the Commitment Document set forth in
Exhibit C will have access to the pricing and discounts covered in
this Agreement. A Premier Member which executes the Commitment
Document agrees to purchase from Seller a minimum of eighty percent
(80%) of such member's annual requirement for the Product(s) (in
dollars) specified in such letter. A Premier Member which signs the
Commitment Document shall be deemed a "Participating Premier Member."
The parties agree that any failure by a Participating Premier Member
to adhere to any of the terms and conditions of its Commitment
Document with Seller shall not constitute a breach by Purchasing
Partners hereunder.
1.
3.3 Termination of Existing Contracts
Any Premier Member desiring to avail itself of the contractual
options, terms and conditions described herein may, at its option and
without liability, terminate any existing contract(s) or other
arrangement(s) by extending the current rental agreement between the
Premier Member and Seller for the sole purpose of participating in the
group purchasing arrangement set forth in this Agreement.
As an example; if the customer had already completed twenty-four
(24) months on an existing sixty (60) month rental agreement, pricing
per the terms of this Agreement would be used when the customer
extends and enters into a new sixty (60) month agreement for the
existing equipment.
4. TERMS AND CONDITIONS
4.1 Authorized Distributors
Except as provided herein, all Products purchased pursuant to this
Agreement by Participating Premier Members must be purchased directly
from Seller.
Participating Premier Members may purchase Supply Products through
▇▇▇▇▇▇ Healthcare Corporation listed as "Baxter Distributed OmniCell
Supply Products" included under Exhibit A, provided that Participating
Premier Members participate in the group purchasing agreement entered
into by and between ▇▇▇▇▇▇ Healthcare Corporation and Purchasing
Partners for Automated Medication Distribution and Accessories
effective June 1, 1997 ("▇▇▇▇▇▇ Group Purchasing Agreement"). Seller
represents and warrants that it has authorized ▇▇▇▇▇▇ Healthcare
Corporation to distribute the Products pursuant to the terms of this
Agreement. Seller further represents and warrants that ▇▇▇▇▇▇
Healthcare Corporation shall be responsible for the administration of
such distribution pursuant to this Agreement and that Purchasing
Partners shall receive a report on a quarterly basis which includes
all information concerning such distribution, including but not
limited to, the name of the Participating Premier Member purchasing
Seller's products through ▇▇▇▇▇▇ Healthcare Corporation, the specific
products being purchased, the date of purchase, the date of order and
delivery, and the date of payment to ▇▇▇▇▇▇ Healthcare Corporation by
Participating Premier Member.
4.2 Payment Terms.
Payment of the first rental payment or purchase price in full is due
within forty-five (45) days following the delivery and acceptance of
Product(s) to Participating Premier Member. All monthly payments
after the first rental payment are due within thirty (30) days of
receipt of the monthly invoice. Service pricing for Products covered
under Rental/Lease Agreements are included in the Rental/lease monthly
rates in Exhibit A.
2.
Payment terms for Products purchased through ▇▇▇▇▇▇ Healthcare
Corporation pursuant to Section 4.1 shall be as provided in this
Section 4.2.
4.3 Shipping Terms
All shipments are Free On Board (F.O.B.) Destination. Freight will be
prepaid and added to the Participating Premier Member's invoice.
Estimated shipping costs to Participating Premier Members in different
locations throughout the country are listed below. Shipping costs for
units shipped individually and in truckloads are listed.
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Approximate Cost Approximate Cost
Per Cell if Shipped Per Cell if Shipped
Area Miles in Single Units by Truck Load
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Los Angeles 400 $ 75 $ 50
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Denver 1226 $115 $ 80
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Chicago 2155 $125 $105
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New York 2944 $165 $145
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Participating Premier Member shall have ten (10) business days from
the date of delivery in which to inspect the Product(s) and to accept
or reject such Product(s). In the event the Participating Premier
Member, after such inspection, rejects the Product(s) due to discovery
of broken or damaged items of Product(s) or the packages containing
Products, the Participating Premier Member shall have the right to
return the damaged Products at the expense of Seller and Seller shall
replace such Product(s) within a mutually agreed upon time frame and
not to exceed thirty (30) days. Payment terms for Products purchased
through ▇▇▇▇▇▇ Healthcare Corporation pursuant to Section 4.1 of this
Agreement shall be as set forth in this Section 4.3.
4.4 Minimum Order
Not Applicable
4.5 Ordering
All purchase orders for Products may be placed by telephone,
telecopier, or through electronic order entry directly through Seller
at the following address and telephone number:
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▇▇▇▇ ▇▇▇▇, Contracts Administrator Phone: (▇▇▇) ▇▇▇-▇▇▇▇
OmniCell Technologies, Inc. Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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3.
Orders for Products purchased through ▇▇▇▇▇▇ Healthcare Corporation
pursuant to Section 4.1 of this Agreement may be purchased through
▇▇▇▇▇▇ Healthcare Corporation at the following address and telephone
numbers:
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▇▇▇▇▇▇ Healthcare Corporation Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Productivity Systems Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Customer Operations
▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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4.6 Guarantee of Delivery
Seller guarantees that all Products ordered by any Participating
Premier Member shall be delivered to member up to and should not
exceed more than ninety (90) days of Seller's receipt of such member's
order for the Product(s). Seller and Participating Premier Member
shall agree upon a specific date of delivery of the Product(s).
Participating Premier Member may delay any scheduled delivery of the
Product(s) for up to ninety (90) days after the execution of the
purchase order by providing written notice of such delay to the Seller
at least thirty (30) days prior to such scheduled date of delivery
without any increase in the price of the Product(s). If Seller fails
to deliver any Product(s) within the above-mentioned time period, the
Participating Premier Member, at its sole discretion, may exercise any
of the following options: (A) to purchase any substitute product(s)
from another source(s), and subsequently be reimbursed by Seller for
the difference between such member's actual acquisition cost for such
product(s) and the price(s) such member would have paid for Seller's
Product(s) under this Agreement; provided that the difference will not
exceed Seller's list prices; (B) to terminate the purchase order for
the Product(s) without penalty, and immediately refund to
Participating Premier Member all funds paid for the Product(s) and any
related materials pursuant to such purchase order, or (C) for those
Product(s) purchased, to extend the warranty period referred to in
Section 10.2, at no charge, by two (2) business days for each calendar
day, or portion thereof that delivery is delayed after the scheduled
date of delivery as agreed upon by the Seller and Participating
Premier Member. Any such warranty extension days described in (C)
will be provided on the days of the week covered under such warranty.
Upon the request of any Participating Premier Member, Seller will
assist any such Participating Premier Member in finding alternative
acceptable sources for any Product(s) which Seller cannot deliver
according to the guaranteed delivery time specified above.
For orders placed with an Authorized Seller's Distributor, guarantee
of delivery provisions will be negotiated between each Participating
Premier Member and the Authorized Seller's Distributor. If the
Authorized Seller's Distributor fails to deliver any Product(s) within
the foregoing negotiated time period because Seller has failed to
provide the Product(s) to the Authorized Seller's Distributor, the
Participating Premier Member may exercise any of the options (A)
through (C)
4.
described above. Upon the request of any Participating Premier
Member, Seller will assist any such Participating Premier Member in
finding alternative acceptable sources for any Product(s) which an
Authorized Seller's Distributor cannot deliver according to the
guaranteed delivery time specified above.
4.7 Guarantee of Delivery Under Emergency Conditions
In the event of a natural disaster or industry wide shortage of
Products ("Emergency Condition"), Seller agrees to give priority to
orders placed by Participating Premier Members for Products during
the duration of the Emergency Condition. If possible, the Seller will
sequester a specific quantity of Products for the exclusive purchase
by Participating Premier Members for the duration of the Emergency
Condition.
4.8 Quality Standards and Specifications
In the event any Participating Premier Member determines within the
first thirty (30) days of use that any Product(s) purchased from
Seller hereunder does not satisfy the Seller's representations
relative to performance, accuracy, and service history, and is not
performing in accordance with such Product's(s') performance
specifications as set forth on Exhibit G ("Product Specifications"),
such member may return such Product(s) to Seller and receive a
replacement for or full repair of such Product(s). In the event
Participating Premier Member returns the Product(s) pursuant to this
Section. Seller shall bear all shipping expenses. This Section 4.8
shall in no way limit the remedies available for exchange of damaged
Product(s) provided in Section 4.3 above.
4.9 Special Handling/Services
Not Applicable
4.10 Clinical Site Preparation.
Subject to the terms of this Agreement, Participating Premier Member,
at its expense, will prepare the clinical site(s) where a Product
will be installed ("Clinical Site") for each such Product according
to the site preparation recommendations which are required to be
provided by Seller. In no event shall Seller be responsible for the
quality or adequacy of the work not performed by, or under the
authority of, Seller.
Notwithstanding any other provision of this Agreement, if any Product
or related equipment fails to perform to its Product Specifications
prior to acceptance by Participating Premier Member due to a
particular condition (or conditions) of such Product's or related
equipment's Clinical Site and that condition (or conditions) fully
meets Seller's site preparation recommendations described above or
modifications thereto agreed to by the parties in writing, Seller
will bear the expense of modifying such Clinical Site to correct such
failure of the Product(s) or related equipment to perform.
5.
4.11 Installation.
After Delivering the Product(s) in accordance with Section 4.6
(Guarantee of Delivery), included in the price of the Product(s),
Seller will be fully responsible for performing all tasks necessary
to install the Product(s), including without limitation, uncrating,
unpacking, removal of packing material, field assembly,
interconnection, calibration and testing to ensure that the
Product(s) conform(s) to its Product Specifications and is completely
ready to perform all procedures for which it is designed and marketed
by Seller.
4.12 Acceptance.
Participating Premier Member will accept the Product(s) at the time
of delivery by signing a Certificate of Acceptance; provided,
however, that Seller offers a sixty (60) day free use period or
Conditional Period as described in Section 4.13 on the initial order
only.
The Participating Premier Member shall have the option during the
sixty (60) day period to test the Product(s) to confirm the safety,
reliability and performance of the Product(s) and to perform
corollary or parallel testing to verify the accuracy of the
Product's(s)' performance.
4.13 Conditional Period of Acceptance
Seller will allow a sixty (60) day validation period, (which shall be
known as a "Conditional Period") to Participating Premier Members who
are interested in evaluating Seller's Product(s) prior to purchasing
or renting the equipment on the initial order only. Product(s)
evaluated during the Conditional Period will be capped at a maximum
of two (2) nursing locations with no more than two (2) frames per
nursing location. No charges will be invoiced to Participating
Members during the Conditional Period.
Due to the breadth of this offer, Seller requests a conditional
purchase order from the Premier Member and a signed validation
agreement for the equipment to be validated in order to build and
ship the equipment.
A sixty (60) month rental agreement or a purchase agreement, an
annual coterminous service agreement and acceptance documents for the
delivered equipment must be executed for the equipment to remain for
longer than the 60-day Conditional Period. The Conditional Period may
be extended beyond 60 days at Seller's option.
If the Participating Premier Member does not accept Product(s) in
accordance with this section within the initial sixty (60) days
acceptance period, Seller will, upon written notice from
Participating Premier Member, remove the Product(s) at no charge,
immediately refund to Participating Premier Member all funds paid for
the Product(s) and may, without penalty, and in addition to pursuing
any and all other rights and remedies such member may have, upon
written notice to Seller
6.
and Purchasing Partners immediately terminate its Commitment Document
with Seller in connection with this Agreement.
All expenses related to the removal of the Product(s) and its related
equipment shall be borne by Seller and Seller shall reimburse
Participating Premier Member for such member's costs associated with
any modifications of the Clinical Site for use of other products.
4.14 Controlling Terms.
In the event of a conflict of terms between the Seller's invoice or
Seller's Service Agreement in Exhibit K, Seller's Rental Agreement in
Exhibit I, Seller's Purchase Agreement in Exhibit J, and this
Agreement or the Commitment Document, the terms of this Agreement or
the Commitment Document shall control.
4.15 Return Goods Policy.
Seller's warranty is to repair or replace, at Seller's option, the
defective part, parts, software, or equipment.
Notwithstanding anything contained herein or covered under Seller's
Service Agreement in Exhibit K to the contrary, Product(s) may be
exchanged or returned either (i) if Participating Premier Member
returns goods in accordance with Section 4.8, or (ii) if
Participating Premier Member does not accept equipment in accordance
with Section 4.13, or if (iii) the Participating Premier Member
returns Product(s) at the end of their rental/lease agreement per the
terms of the Seller's Rental Agreement included herein under Exhibit
I. Participating Premier Member shall prepay shipping charges,
including crating and shipping by means mutually agreed to between
Participating Premier Member and Seller (and shall pay all duties and
taxes) for such Product(s) exchanged or returned to Seller if
returned pursuant to (ii) and (iii) above, unless return is due to
fault of Seller. Seller shall prepay shipping charges (and shall pay
all duties and taxes) for such Product(s) returned to Seller if
returned pursuant to (i) above.
5. PRICING
5.1 Best Pricing.
Given the size of Purchasing Partners and committed nature of
Purchasing Partners purchasing program, Seller warrants that the
prices, terms and conditions offered through this Agreement shall, at
all times, be equal to or better than those offered to any other
comparable customer (excluding the Federal Government) except to the
extent that Purchasing Partners has a lesser volume of purchases.
Purchasing Partners and Seller agree to meet at least on a quarterly
basis to review prices, terms and conditions to ensure that Seller is
in compliance with the provisions outlined above. If it is determined
that Seller is not in compliance,
7.
Purchasing Partners and Seller shall amend this Agreement and Exhibits
to provide Purchasing Partners with more favorable terms.
5.2 Pricing.
Exhibit A sets forth the net member delivered price (excluding
shipping) to be offered to Participating Premier Members for each of
the Products. Prices in this Agreement will increase _____ percent
______ at the beginning of the second year of this Agreement, and
_____ percent _____ at the beginning of the third year. Pricing for
any extension of this Agreement will be negotiated by the parties.
In the event of any industry-wide price decrease for any Product
during the term of this Agreement, Seller will reduce the price of
that Product as set forth in Exhibit A by the same percentage
reduction as such industry-wide price decrease.
Guaranteed Base Discounts:
Participating Premier Members are guaranteed volume discounts based on
a simplified three tiered discount structure. The three tiered
discount structure is listed below. The discount is provided at the
time of purchase and is based on the aggregate dollar volume of
products listed on the purchase order.
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Purchasing Volume Discount off List Prices
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$0 to $200,000 ____ discount
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$200,001 to $1,000,000 ____ discount
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Over $1,000,000 Additional discounts negotiated case
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Seller offers an additional ______ percent _____ net discount if the
Participating Premier Member elects not to evaluate Product(s) or
utilize a Conditional Period (free use) described in Section 4.13
herein.
5.3 Large Orders
Any Participating Premier Member who purchases single orders totaling
$1,000,000 or more using the net prices in Exhibit A will be offered
special pricing that is negotiated between an individual Participating
Premier Member and Seller. All such negotiations must be coordinated
through Purchasing Partners.
5.4 Competitive Conversion Incentive
Seller will place aside $2,000,000 of Seller equipment to swap out
against any competitive equipment in Participating Premier Member
facilities. Such equipment swap shall be mutually agreed to by the
parties and must be utilized within the first twelve (12) months of
this Agreement. Each competitive equipment swap request by
Participating Premier Members will be up to and not
8.
to exceed $500,000 per request. The net purchase prices listed in
Exhibit A and related shipping charges will be used to credit against
this swap fund. Rebates do not apply to swap equipment. As a general
guideline, Seller will agree to swap competitive systems for new
Seller systems on a 1:4 basis.
(a) Single Hospital Example:
A Participating Premier Member hospital has 4 competitive systems that
they would like to swap for Seller's equipment. The hospital would
need to have at least 16 Seller's systems installed within the single
location to be applicable for the competitive swap. In this example
four of the sixteen units are the swap units.
(b) Small Group of Hospitals Example:
For a small group of hospitals, the competitive swap would be
calculated based upon the total number of Seller's frames to be
installed throughout the Group. In the following example, the 30
competitive systems would be swapped on a competitive basis for a
minimum of 120 Seller's frames throughout the hospital group.
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Hospitals within Competitive Minimum OmniCell Frames
Group Systems Installed to be Installed
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South Regional 8 48
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North Regional 20 20
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East Regional 0 22
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West Regional 2 30
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Total 30 120
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(c) Competitive Agreements Expiring less than One Year:
In addition, any competitive system which has less than one (1) year
remaining on its existing rental/lease agreement will be reviewed for
replacement on an account by account basis. Seller will credit the
Participating Premier Member for the time remaining on the contract by
giving a discount equivalent to the amount of the time left to be paid
on the replacement unit's contract.
For example;
If a Participating Premier Member has competitive systems with 6
months remaining on the rental commitment, and they wish to convert to
Seller's equipment on a 60 month rental agreement, Seller may
negotiate with the Participating Premier Member to allow for a 66
month rental agreement, in which the first six months are discounted
and prorated over the term of the rental agreement.
9.
5.5 Special Promotions
Seller may, on occasion, offer special promotions for Product(s)
including feature options. Any such promotion will be offered to all
Participating Premier Members and will be limited to the terms and
conditions of the specific promotion. All promotions must be
coordinated by Seller through Purchasing Partners.
5.6 Targeted Group Purchases
From time to time, Purchasing Partners may identify group purchase
opportunities with Seller, whereby several Participating Premier
Members agree to purchase Seller's Product(s) during a specified time
period. Seller agrees to assist and participate in this Group
purchase and offer additional incentives to such Participating
Premier Members in the event of such a program.
5.7 Pricing for Updates/Upgrades
Updates/Upgrades/Enhancements will be provided for Product(s) at no
charge for Participating Premier Members with active
service/maintenance agreements. Feature options for Product(s) will
be chargeable, to Participating Premier Members and will vary
depending on the option. Examples of Updates/upgrades are under
Exhibit M.
5.8 Coterminous Agreements
Seller will accommodate coterminous agreements by adjusting the price
of new orders to allow for coterminous coordination with current
rentals/leases or extending the term of current rentals/leases to go
coterminous with new orders per Section 3.3
5.9 Supply Station/Pharmacy Automated Distribution System Ordering
Incentives
Seller shall provide an additional percent net discount to
Participating Premier Members who purchase both Seller's supply and
pharmacy stations under this Agreement. Seller shall also provide an
additional percent net discount on the purchase under this Agreement
of Seller's supply stations by Participating Premier Members who have
committed to the ▇▇▇▇▇▇ Group Purchasing Agreement and who purchase a
combination of Seller's supply stations and ▇▇▇▇▇▇ Healthcare
Corporation's automated medication distribution systems.
5.10 Exclusive Group Discounts
For any Participating Premier Members with a minimum of three (3)
acute care hospitals who sign up to utilize Seller as its exclusive
automation vendor, Seller will provide a Member Exclusivity discount
of an additional ______ percent
10.
_____net discount. This discount is applied on a moving forward basis
and is not retroactive.
5.11 Pricing of New Products
Pricing for any additional and/or new products of Seller will be
negotiated at net prices consistent with the net prices of Products
already covered by this Agreement.
5.12 Electronic Transfer of Funds/Electronic Data Interchange
Seller and Purchasing Partner agree that in the event any
Participating Premier Member with the capability for electronic
transfer of funds or other form of electronic data interchange
compatible with that of Seller chooses to use such payment or
ordering method, the pricing set forth in this Agreement may be
reduced by a discount to be mutually agreed upon by such
Participating Premier Member and Seller.
5.13 Product Pricing Information (Sales Catalogs)
Seller will provide to Purchasing Partner product pricing information
in the ANSI X.12-832 format as detailed in Exhibit D. The timeframe
for product information to be available in this format is one (1)
year from the date of the Agreement. In the meantime, Seller may
utilize one of the alternative formats detailed in Exhibit D. If
after twelve (12) months, Seller shall be subject to assessment by
Purchasing Partners only for the additional costs associated with
processing product pricing information provided in a non-standard
format.
5.14 Taxes
No party shall be responsible for taxes imposed on any other party as
a result of or arising from the transactions contemplated by this
Agreement. Property and user taxes will be prepaid and added for
those customers in the states affected.
6. MARKETING/SALES SUPPORT/MAINTENANCE
6.1 Seller Representatives
Seller will provide representatives to call upon Participating
Premier Members on a periodic basis mutually agreed to by Seller and
each individual Participating Premier Member.
6.2 In-Service/Clinical Training
Included in the price of the Product(s), Seller will provide to each
Participating Premier Member In-service and Clinical Training, as
described herein under Exhibit L related to the Product(s) as
required or requested by each Participating Premier Member ("Train
the Trainer"). Seller will maintain a properly qualified
11.
training staff to provide such In-service and Clinical Training, and
it shall be the responsibility of each Participating Premier Member to
ensure that its appropriate personnel attend and complete such
training. Specifically, Seller shall perform, at the convenience of
each Participating Premier Member, in-service training sessions at
Seller's facility for medical, clinical and technical personnel in the
use and operation of the Product(s). The scheduling of applications
training shall be made directly with the director of the Participating
Premier Member's applicable department and shall accommodate all
shifts that require training.
Also included in the price of the Product(s), Participating Premier
Members are required to participate in a week of training prior to the
clinical use of the system, The "System Administrator Training Course"
is held at Seller's headquarters in Palo Alto, California. The course
fee will be waived by Seller, while all travel and related expenses
will be the responsibility of the Participating Premier Member. The
Participating Premier Member must complete training prior to the
clinical use of the system in order to enforce the warranty and
indemnification provisions of this Agreement with respect to such
Participating Premier Member.
Also included in the price of the Product(s), Seller will provide a
written training guide and/or set of training video tapes to the
Participating Premier Member to be used for future in-service training
by Staff.
Also included in the price of the Product(s), Seller shall supply the
Participating Premier Members with the following items prior to or at
the time of delivery of the Product(s): (A) one (1) copy of operator
manuals covering all equipment and accessories; and (B) one (1) copy
of complete service manuals detailing all equipment and accessories
including, without limitation, parts lists and schematic diagrams.
All updates to manuals and final versions (where applicable) of
manuals are to be provided for the life of the equipment.
Participating Premier Members shall be entitled to make necessary
copies, for internal purposes only, of any training materials to be
used.
6.3 Biomedical/Technical Programs
Within the warranty period described in Section 10.2, Seller will make
available factory service school training including travel, room and
board, for the Participating Premier Member's clinical engineering
representative for $3,500.00 per course, plus travel and expenses.
This privilege shall extend for no more than five (5) years from the
acceptance of the Product(s) by Participating Premier Member and shall
not be utilized more than one time per year after the first year of
system operation. If possible, training shall be provided at regional
locations to accommodate multiple Participating Premier Members.
6.4 Remote Diagnostic Systems
Not Applicable
12.
6.5 Product Developments/New Product Opportunities
At Purchasing Partners' request, Seller will meet with Purchasing
Partners at least two (2) times during each year of this Agreement to
share new product information and technology and to discuss
opportunities of mutual interest. All expenses associated with such
meetings during each year of this Agreement will be paid in a mutually
agreed upon arrangement. Seller will work with Purchasing Partners
and Participating Premier Members in developing new products and
exploring opportunities for market research, clinical trials and
technology transfer.
Contemporaneous with Seller's announcement to any other customer of
any new commercially available product, Seller will notify Purchasing
Partners in writing of the nature, potential uses and performance
specifications of such product.
6.6 Service and Related Agreements
Seller's Service Agreement, included herein under Exhibit K, is
required for Participating Premier Members on all rented/leased or
purchased Product(s).
6.7 Service and Maintenance
Seller offers basic and extended service to Participating Premier
Members. The price for the sixty (60) month rental of Product(s) with
Basic Service included under Exhibit A will be firm for the term of
the Agreement. The price for the twelve (12) month Basic Service
listed herein under Exhibit A will increase pursuant to Section 5.2.
Seller's basic or extended service prices will be discounted by ____
percent ____ (rounded to nearest $5) if a Participating Premier Member
facility agrees to the following:
1. Participating Premier Member(s) send a minimum of two Bio-Med
personnel to Seller's headquarters for system administrator
training as referenced in Section 6.3.
2. Once certified, Participating Premier Member trained personnel
must be available to perform on-site maintenance services
normally performed by Seller. This will include all services
that Seller is able to train Participating Premier Member Bio-med
personnel to perform.
3. The first call follow-up from Seller's help desk will go to the
Participating Premier Member's Bio-med service personnel.
Seller shall provide the Participating Premier Member participant a
list of parts, servicing and planned maintenance kits, and specialized
test and servicing equipment to be provided. This list shall include
pricing and available discounting.
13.
6.8 Accessories and Replacement Parts
Included in the price of the Product(s) and for the life of the
Product(s), Seller will offer to Participating Premier Member each
item, including, without limitation, hardware, firmware, and software
("Accessory Item") which may be used with any Product(s) at a zero
percent (0%) discount off Seller's then-current list price for such
Accessory Item, or the lowest price which Seller offers such Accessory
Item to any of its other customers, whichever is lower. For any
Accessory Item ordered by Participating Premier Member, Seller will
install the Accessory Item at no charge when the Product(s) is not in
use according to a schedule approved by Participating Premier Member,
and will provide, at no charge, training to Participating Premier
Member designees regarding use of such Accessory Item, except in cases
of misuse (e.g. physical abuse, not providing voltage surge
protection, not providing preventative maintenance as described in the
operator's manual) by a Participating Premier Member, in which case
parts and labor will be charged at current rates.
Also included in the price of the Product(s), Seller will provide all
replacement parts for the Product(s) within twenty-four (24) hours of
Participating Premier Member's request. All replacement parts for the
Product(s) will be available for not less than ten (10) years
following the earlier of either (i) the date when Seller ceases to
sell the Product(s) or a reasonable substitute of the Product(s) or
(ii) the expiration of the warranty period described in Section 10.2,
including all extensions thereto, if applicable. Included in the
price of the Product(s), Seller shall provide all software and
hardware modifications necessary to meet regulatory requirements.
6.9 Downtime Protection
Seller is not able to track downtime for Product(s) as requested.
Seller will guarantee a 95% cumulative up-time for all equipment in
each Participating Premier Member facility. For each month that
passes where the 95% up-time is not maintained, Seller agrees to waive
the service fees for one month.
For example;
If a Participating Premier Member has 10 units installed, they would
have 7,200 hours of operation in a thirty day month. If the Member
has more that 360 hours (5%) of downtime (as calculated by the
Member), the service fees for the entire installation would be waived
for one month. If during the warranty period for any Product, such
product experiences twenty (20) or more continuous days of any
Downtime, or forty (40) or more days of any Downtime, Participating
Premier Member shall notify Seller in writing of such circumstances,
including a description of the problems or defects. Seller agrees to
provide at its expense and within twenty-four hours (24) of receiving
such notice, the technical personnel and assistance necessary to
remedy the failed Product and to prevent the problems or defects from
reoccurring, unless the problems are caused by the Participating
14.
Premier Member's own interfaces to the Product(s). In the event that
Seller is unable to remedy the problems or defects in the Product(s)
within a time period reasonably determined by Participating Premier
Member, Seller shall remove such Product at no charge, immediately
refund to Participating Premier Member a prorated amount based on the
depreciation schedule of Product(s) all funds paid for such Product
if purchased and forgiveness of future rental charges for leased
Product(s) for such Product(s) that experienced Downtime. For
purposes of this Agreement, "forgiveness of future rental charges"
shall mean the Participating Premier Member shall not be considered
in default of their current rental agreement.
6.10 Response Time
Included in the price of the Product(s), Seller shall make available
to Participating Premier Members, a service engineer familiar with
the Product(s) to respond by telephone within a reasonable time not
to exceed four (4) hours of Participating Premier Member's placing a
telephone call to Seller requesting service regarding any problem
with the Product(s), or failure of the Product(s) to perform in
accordance with the Product Specifications. If Seller's response time
is later than four (4) hours on two or more occasions within a thirty
(30) day period, Seller will waive the service fees for that
Participating Premier Member for one month for those units affected.
If either the Participating Premier Member or Seller reasonably
determines that a service visit is necessary to correct the problem,
Seller shall have a service engineer at the Clinical Site as per the
terms of the applicable service agreement (basic or extended).
7. SALES DOCUMENTATION
Seller will provide Purchasing Partners with reports of all Products
purchased by each Participating Premier Member no later than thirty (30)
days after the last day of the quarter. Reports will include, reporting
period start and end dates, member name, city, state, monthly sales volume
per Product (totaled per member), and the administrative fee amount by
member. Participating Premier Members will be identified by HIN or DEA
number.
Seller will provide to Purchasing Partners sales documentation in the ANSI
X. 12-867 format as detailed in Exhibit E. The timeframe for sales
information to be available in this format is one (1) year from the date of
the Agreement. In the meantime, Seller may utilize one of the alternative
formats detailed in Exhibit E. However, if Seller deviates from the ANSI X.
12-867 standard after twelve (12) months, an additional fee (as set forth
in Section 8.3) will be assessed against Seller to compensate Purchasing
Partners for the additional costs associated with processing Product sales
data provided in a non-standard format.
15.
Seller will identify to Purchasing Partners a contact person within
Seller's organization who will be responsible for the development and
distribution of the sales reports set forth in Section 7.0.
8. FEES
8.1 Administrative Fee
Seller will remit to Purchasing Partners monthly an administrative fee
(the "Administrative Fee") equal to ____ percent _____ of the total
dollar volume of Products purchased by Participating Premier Members
through Seller or through any Authorized Seller's Distributors during
such period. Seller will pay to Purchasing Partners the
Administrative Fee by a check payable to "Premier Purchasing Partners,
L.P." sent to the attention of "Controller" which shall be received at
Purchasing Partners' address as set forth above no later than thirty
(30) days after the last day of the quarter.
The administrative fee will be paid as a percent of the total cash
(including service and ancillary costs but excluding costs associated
with shipping) collected from Participating Premier Members.
Seller may make payment of the Administrative Fee electronically to
the designated Purchasing Partners' account. The current electronic
funds transfer instructions are as follows:
Seller shall pay to Purchasing Partners interest on any past due
amount owing Purchasing Partners hereunder at the lesser of (i) one
and one-half percent (1-1/2%) per month or (ii) the maximum interest
rate legally permitted.
8.2 Electronic Submission of Administrative Fee Sales Documentation
Seller will provide sales data in the electronic format specified in
Section 7.0 of this Agreement. The timeframe for product information
to be available in this format is one (1) year from the date of the
Agreement. If Seller does not provide data in the specified format
within that time period, Seller agrees to provide payment of the
charges resulting from the increased costs to Purchasing Partners in
addition to the Administrative Fee provided for in Section 8.1 of this
Agreement.
8.3 Electronic Submission of Product Pricing Information
Seller will provide product pricing information in the electronic
format specified in Section 5.10 of this Agreement. The time frame
for product information to be available in this format is one (1) year
from the date of the Agreement. If Seller does not provide pricing
information in the specified format within that period of time, Seller
agrees to provide payment of the charges resulting from the increased
costs to Purchasing Partners in addition to the Administrative Fee
provided for in Section 8.1 of this Agreement.
16.
9. COMPLIANCE WITH LAWS AND REGULATIONS
Purchasing Partners and Seller represent and warrants that throughout the
term of this Agreement and any extension hereof, Purchasing Partners,
Seller and the Products shall be and shall remain in compliance with all
mandatory applicable federal, state and local laws and regulations.
The dollar value of the goods and services provided pursuant to Section
6.0, and any other products and services not specifically paid for by
Participating Premier Members and received by Participating Premier Members
from Seller under this Agreement are "discounts or other reductions in
price" to Participating Premier Members under Section 1128B(b)(3)(A) of the
Social Security Act, 42 U.S.C. 1320a-7b(b)(3)(A). Upon request of any
Participating Premier Member, Seller shall disclose to the Participating
Premier Member, per the applicable regulations, the specified dollar value
of discounts or reductions in price. The Participating Premier Member
shall disclose the specified dollar value of discounts or reductions in
price under any state or federal program which provides cost or charge
based on reimbursement to Participating Premier Member for the Products and
services covered by this Agreement in accordance with applicable
regulations.
Seller agrees that, until the expiration of four (4) years after the
furnishing of any goods and services pursuant to this Agreement, it will
make available, upon written request of the Secretary of Health and Human
Services or the Comptroller General of the United States or any of their
duly authorized representatives, copies of this Agreement and any books,
documents, records and other data of Seller that are necessary to certify
the nature and extent of the costs incurred and other data of Seller that
are necessary to certify the nature and extent of the costs incurred by
Participating Premier Member in purchasing such goods and services. If
Seller carries out any of its duties under this Agreement through a
subcontract with a related organization involving a value or cost of ten
thousand dollars ($10,000) or more over a twelve-month period, Seller will
cause such subcontract to contain a clause to the effect that, until the
expiration of four (4) years after the furnishing of any good or service
pursuant to said contract, the related organization will make available
upon written request of the Secretary of Health and Human Services or the
Comptroller General of the United States or any of their duly authorized
representatives, copies of this Agreement and any books, documents, records
and other data of said related organization that are necessary to certify
the nature and extent of costs incurred by Seller for such goods or
services. Seller shall give Purchasing Partners notice immediately upon
receipt of any request from the Secretary of Health and Human Services or
the Comptroller General of the United States or any of their duly
authorized representatives for disclosure of such information.
17.
10. INDEMNIFICATION, WARRANTIES, SPECIFICATIONS AND NOTICES
10.1 Indemnification
(a) Damage from Use of Products
Subject to Section 10.2 below, Seller hereby agrees to indemnify,
defend (pursuant to Section 10.3 below) and hold harmless Purchasing
Partners, each Participating Premier Member, and their respective
directors, officers, employees and agents (each an "Indemnitee") from
and against any and all losses, expenses, damages, liabilities and
costs (including, without limitation, interest, penalties and
reasonable attorneys' fees) arising from any bodily injury or
property damage caused by use of any of the Products except Seller
shall not be financially responsible for that portion of any loss,
expense, damage, liability or cost which results from the negligence
of an Indemnitee.
(b) Infringement Claims
Subject to Section 10.2 below, Seller hereby agrees to indemnify and
hold harmless the Indemnitees from and against any and all losses,
expenses, damages, liabilities and costs (including, without
limitation, interest, penalties and reasonable attorneys' fees)
arising from an infringement of any U.S. copyright, U.S. patent, or
registered U.S. trademark or trade name of third parties. If any
Product is the subject of or, in Seller's opinion, is likely to
become, the subject of any such infringement claim, Seller may, at
its option and expense, either (i) procure for Participating Premier
Members that use the Product the right to continue using the Product;
(ii) replace or modify the Product so that it becomes non-infringing
while remaining functionally equivalent; or (iii), if neither (i) nor
(ii) is, in Seller's reasonable opinion, a viable option, remove the
affected Product, reimburse each Participating Premier Member that
uses the Product for its direct, documented, reasonable, out-of-
pocket costs in modifying its Clinical Site for use with substitute
products, and refund the purchase price actually paid for the removed
Products less depreciation calculated at _____ percent ____ per year
from the date of delivery. This paragraph 10.1 (b) states Seller's
entire liability for infringement claims and actions.
(c) Purchasing Partners Indemnification
Purchasing Partners agrees to indemnify, defend, and hold harmless
Seller and its respective directors, officers, employees and agents
(each an "Indemnitee") from and against any and all losses, expenses,
damages, liabilities and costs (including, without limitation,
interest, penalties and reasonable attorney's fees) arising from a
claim asserted by a third party regarding (i) Purchasing Partner's
obligation to provide information regarding this Agreement to the
participants in the Premier Group Purchasing Program, to actively
support conversions and commitment to this Agreement and to aid in
communicating with Premier Members; (ii) Purchasing Partners
representations concerning the Products that differ from those
18.
made by Seller in Seller's documentation for the Product; and (iii)
Purchasing Partners failure to comply with the Medicare and Medicaid
anti-kickback provision of the Social ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. ▇▇▇▇▇-
7b, except Purchasing Partners shall not be financially responsible
for that portion of any loss, expense, damage, liability or cost
which results from the negligence of Indemnitee.
10.2 Exclusion
Seller will have no obligations to any Indemnitee under Section 10.1
for any claim based upon or any damages attributable to (a) use of
any version of a Product other than the unaltered release of the most
current version of such Product issued to the Participating Premier
Member (unless specifically approved by Seller in writing). To the
extent such claim or damage would have been avoided by use of the
unaltered current release of such Product; (b) use of any product not
in accordance with Seller's written instructions or for any purpose
other than its intended purposes; (c) any modification, alteration,
or repair to a Product not made by Seller or specifically authorized
by Seller in writing; or (d) combination, operation or use of Product
with equipment, programs or data not supplied or specifically
approved in writing by Seller to the extent such claim or damage
would have been avoided by use of the Product without such non-Seller
supplied or approved pursuant to Section 4.1 of this Agreement.
10.3 Defense of Third Party Claims
If any third party asserts a claim against Indemnitee for which
Indemnitee is entitled to indemnification by Purchasing Partners or
Seller under Section 10.1 ("Indemnitor") (subject to the exclusions
in Section 10.2), Indemnitor will defend such claim at its own
expense and pay any damages and costs finally awarded by a court of
competent jurisdiction, or any amount agreed to in a monetary
settlement, specifically attributable to such claim, provided that
Indemnitee (a) promptly notifies Indemnitor in writing of such claim
(b) gives Indemnitor sole control of the defense of such claim and
settlement negotiations related thereto, and (c) cooperates with and,
at Indemnitor's request and expense, assists Indemnitor in the
defense or settlement of such claim. Subject to the foregoing,
Indemnitee will have the right, at its own expense, to participate in
and be represented by its own counsel in the defense of any such
claim. Pursuant to Section 10.1, Indemnitor shall only be responsible
for that portion of any defense costs which correspond to
Indemnitor's percent of total liability as determined by a court of
competent jurisdiction.
10.4 Warranties and Published Specifications
Product(s) are covered under the warranty or warranties set forth in
Seller's Purchase, Rental, and Service Agreements, as applicable,
attached hereto as Exhibits J, I, and K respectively. Seller will
make a limited warranty directly to each Participating Premier Member
that acquires any of the Products under this Agreement. It is
understood and agreed that SELLER MAKES NO
19.
WARRANTIES, EXPRESS OR IMPLIED, TO PURCHASING PARTNERS REGARDING ANY
OF THE PRODUCTS AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT.
10.5 Product Notices
Seller agrees to send all Product notices, as well as notices of any
other changes affecting the Product(s) and notices of new products,
to each Premier Member with copies to Purchasing Partners.
10.6 Insurance
Seller shall maintain adequate product liability, general public
liability and property damage insurance against any claim or claims
which might or could arise regarding products purchased by
Participating Premier Members from it under the Agreement. When
requested by Purchasing Partners, an insurance certificate indicating
the foregoing coverage, issued by an insurance company licensed to do
business in the relevant state or states and signed by an authorized
agent, shall be furnished to Purchasing Partners.
10.7 Limitation on Liabilities
In no event shall Seller be liable for any special, incidental,
indirect or consequential damages of Purchasing Partners arising out
of this Agreement; provided, however, that no limitation of
liability, under this Section 10.7 shall in any way act to limit
Seller's liability under the Indemnification provisions of Sections
10.1 and 10.2 of this Agreement.
11. TERMINATION
11.1 Termination for Breach
In the event of breach of any provision of this Agreement, the non-
breaching party shall notify, the breaching party in writing, of the
specific nature of the breach and shall request that it be cured. If
the breaching party does not cure the breach within thirty (30) days
of such notice, the non-breaching party may immediately terminate
this Agreement on written notice to the breaching party, and such
termination shall not preclude the non-breaching party from pursuing
any and all remedies available to it at law or at equity.
11.2 Orders Placed Prior to Termination
Seller shall fulfill, in accordance with the terms of this Agreement,
all orders for Products submitted by a Participating Premier Member
and accepted by Seller prior to termination or expiration of this
Agreement.
20.
11.3 Termination Without Cause
Purchasing Partners or Seller may terminate this Agreement for any or
no reason upon ninety (90) days written notice.
11.4 Survival
The following paragraphs of this Agreement shall survive expiration
or termination of this Agreement: (i) the payment of Administrative
Fees pursuant to Section 8.1 including, but not limited to, fees
relating to Products ordered prior to the effective date of
expiration or termination and delivered after expiration or
termination; (ii) the audit undertakings set forth in Section 13.12;
(iii) the representations, warranties and covenants set forth in
Section 10.3; (iv) the indemnification undertaking contained in
Section 10.1; (v) the designation of Premier Members as third party
beneficiaries pursuant to Section 13.7; (vi) the undertaking to fill
orders submitted to and accepted by Seller prior to the date of
expiration or termination set forth in Section 11.2; (vii) the
confidentiality undertakings contained in Article 12; (viii) the
inurement rights and limitations on assignment contained in Sections
13.4 and 13.10; (ix) the governing law provisions contained in
Section 13.1; (x) reasonable attorney's fees provided for in Section
13.9.
12. CONFIDENTIALITY
12.1 Confidential Information
For the purposes of this Agreement, confidential information
("Confidential Information") shall mean all proprietary, secret or
confidential information or data relating to Purchasing Partners or
Premier Members, or Seller and their respective operations,
employees, services, patients or customers. Such Confidential
Information may include oral statements or written material, whether
tangible or intangible, designated either orally or in writing, to be
confidential at the time of disclosure. Oral statements designated as
Confidential Information shall be reduced to writing within thirty
(30) days of such statements.
12.2 Protection of Confidential Information
The parties acknowledge that they may disclose Confidential
Information to each other in connection with this Agreement. If a
party receives Confidential Information it shall: (a) maintain the
Confidential Information in strict confidence; (b) use at least the
same degree of care in maintaining the secrecy of the Confidential
Information as the disclosing party uses in maintaining the secrecy
of its own proprietary, secret or confidential information, but in no
event less than a reasonable degree of care; (c) use Confidential
Information only to fulfill its obligations under this Agreement; and
(d) return or destroy all documents, copies, notes or other materials
containing any portion of the Confidential Information upon request
by the disclosing party.
21.
12.3 Agreement Confidential
Neither party hereto shall disclose the terms of this Agreement to
any other person or entity other than a Premier Member or as required
by law, except that either party may disclose the terms of this
Agreement as is necessary for distribution of Seller's Products
pursuant to Section 4.1 of this Agreement and to its attorney and
accountant having a need to know in order to accomplish the purposes
contemplated by this Agreement. Neither party shall make any public
announcement concerning the existence of this Agreement or its terms
unless such party receives prior written approval by the other party,
except as required under Section 9.0 of this Agreement.
12.4 Limitation on Obligation
The parties shall have no obligation concerning any portion of the
Confidential Information which: (a) was known before receipt,
directly or indirectly, from the disclosing party; (b) is lawfully
obtained, directly or indirectly, from other than the disclosing
party; under no obligation of confidentiality; (c) is or becomes
publicly available other than as a result of an act or failure to act
by the disclosing party; or (d) is required to be disclosed by
applicable law or legal process. The parties shall not disclose any
portion of the Confidential Information to any person except those of
its employees, agents, or independent contractors having a need to
know such portion to accomplish the purposes contemplated by this
Agreement.
13. MISCELLANEOUS
13.1 Governing Law and Venue
This Agreement is being delivered and executed in the State of
Illinois. In any action arising under this Agreement, whether at law
or at equity, the validity, construction and enforcement of this
Agreement shall be governed in all respects by the laws of the State
of Illinois. Venue shall be proper only in a court of competent
jurisdiction located in the county and state in which the complaining
party is located. The parties agree to be subject to personal
jurisdiction in and consent to service of process issued by a court
in which venue is proper as defined in this Section 13.1.
13.2 Modification and Waiver
No modification of this Agreement shall be deemed effective unless in
writing and signed by each of the parties hereto. Any waiver of a
breach of any provision(s) of this Agreement shall not be deemed
effective unless in writing and signed by the party against whom
enforcement of the waiver is sought.
22.
13.3 Headings
The descriptive headings of the sections of this Agreement are
inserted for convenience only and shall not control or affect the
meaning or construction of any provision hereof.
13.4 Assignment
Neither party may assign, subcontract, delegate or otherwise transfer
this Agreement or any of its rights or obligations hereunder, nor may
it contract with third parties to perform any of its obligations
without the other party's prior written consent; provided, however,
that this Section 13.4 shall not limit Seller's ability to assign,
subcontract, delegate or otherwise transfer its rights or obligations
hereunder to a successor corporation, if necessary, in the event
Seller becomes a publicly traded company through an initial public
offering of stock in accordance with the Securities and Exchange
Commission Act of 1934, as amended, or (ii) Purchasing Partners
ability to assign, subcontract, delegate or otherwise transfer its
rights or obligations hereunder to a subsidiary or affiliated entity
of Purchasing Partners or Premier, Inc. Neither party's consent shall
be unreasonably withheld or delayed. For purposes of this provision
it is not unreasonable for Purchasing Partners to reject an
assignment, subcontract, delegation or transfer based on its own
business judgement as to the assignees ability to perform the
requirements of this Agreement or if Purchasing Partners determines
that it is not otherwise in Premier Members' best interest.
13.5 Severability
If any part of this Agreement shall be determined to be invalid,
illegal or unenforceable by any valid Act of Congress or act of any
legislature or by any regulation duly promulgated by the United
States or a state acting in accordance with the law, or declared null
and void by any court of competent jurisdiction, then such part shall
be reformed, if possible, to conform to the law and, in any event,
the remaining parts of this Agreement shall be fully effective and
operative insofar as reasonably possible.
13.6 Notices
Any notice required to be given pursuant to the terms and provisions
hereof shall be in writing, postage and delivery charges pre-paid,
and shall be sent by telecopier, hand delivery, overnight mail
service, first-class mail or certified mail, return receipt
requested, to Purchasing Partners or Seller at the addresses and/or
facsimile numbers set forth above. Any party may change the address
to which notices are to be sent by notice given in accordance with
the provisions of this section. Notices hereunder shall be deemed to
have been given, and shall be effective upon actual receipt by the
other party, or, if mailed, upon the earlier of the fifth (5th) day
after mailing or actual receipt by the other party.
23.
13.7 Enforceability
The parties hereto acknowledge and agree that (i) this Agreement is
entered into by Purchasing Partners for the express, intended
benefit of the Premier Members, (ii) each of the Premier Members
shall be and constitute an intended third party beneficiary of the
representations, warranties, covenants and agreements of the Seller
contained herein, and (iii) each of the Premier Members shall be
entitled to enforce the terms and provisions of this Agreement to
the same extent as Purchasing Partners.
13.8 Independent Contractors
The parties' relationship hereunder is that of independent
contractors. This Agreement does not create any employment, agency,
franchise, joint venture, partnership or other similar legal
relationship between Purchasing Partners and Seller. Neither party
has the authority to bind or act on behalf of the other party except
as otherwise specifically stated herein.
13.9 Attorneys' Fees
Should any party employ an attorney for the purpose of enforcing
this Agreement or any judgment based hereon in any court, including
bankruptcy court, courts of appeal or arbitration proceedings, the
prevailing party shall be entitled to receive its reasonable
attorneys' fees and costs, whether taxable or not.
13.10 Binding Effect
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.
13.11 Force Majeure
The obligations of either party to perform under this Agreement will
be excused during each period of delay caused by acts of God or by
shortages of power or materials or government orders which are
beyond the reasonable control of the party obligated to perform
("Force Majeure Event"). In the event that either party ceases to
perform its obligations under this Agreement due to the occurrence
of a Force Majeure Event, such party shall: (1) immediately notify
the other party and, in the case of Seller, the Participating
Premier Member affected in writing of such Force Majeure Event and
its expected duration; (2) take all reasonable steps to recommence
performance of its obligations under this Agreement as soon as
possible. In the event that any Force Majeure Event delays a party's
performance for more than ninety (90) days following notice by such
party pursuant to this Agreement, the other party may terminate this
agreement immediately upon written notice to such party.
24.
13.12 Audit of Costs
Seller shall permit Purchasing Partners or its agent to conduct
annual audits of records relating to Seller's performance under this
Agreement including without limitation orders, invoices, volume
reports and administrative fees, subject to Seller's obligations
under any confidentiality agreement entered into by Seller and third
party. The audits shall be conducted upon reasonable advance notice
during regular business hours at Seller's principal office and in
such a manner as not to unduly interfere with Seller's operations.
Such audits shall be subject to the confidentiality provisions of
this Agreement set forth in Article 12 above.
13.13 Minority and Female Owned Businesses
Seller represents and warrants that it is an "equal opportunity
employer". Seller shall also use its reasonable efforts to support
Purchasing Partners' Minority, and Female Owned Businesses Policy as
set forth in Exhibit F.
13.14 Entire Agreement
This Agreement, including all Exhibits referenced herein,
constitutes the entire understanding and agreement between the
parties concerning the subject matter hereof, and supersedes all
prior negotiations, agreements and understandings between the
parties, whether oral or in writing, concerning the subject matter
hereof.
In Witness Whereof, the undersigned duly authorized representatives of the
parties have executed this Agreement as of the date below written.
Premier Purchasing Partners, L.P. OmniCell Technologies, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇
----------------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
President, Purchasing Partners CFO
May 28, 1997 May 15, 1997
----------------------------------- ------------------------------------
Date Signed Date Signed
25.
Exhibit A
▇▇▇▇▇▇ Distributed OmniCell Supply Products
Products Description Model #
-------- ----------- -------
Cabinets 1 Cell OmniSupplier OS 104
1 Cell Auxiliary OX104
2 Cell OmniSupplier OS224
2 Cell Auxiliary OX224
3 Cell OmniSupplier OS344
3 Cell Auxiliary OX344
4 Cell OmniSupplier OS448
5 Cell OmniSupplier OS568
6 Cell OmniSupplier OS688
2 LOW Cell OS176
OmniExpress OS56
OmniCenter OmniCenter XPC XPC100
OmniCenter Supply XPC-SP
Transaction Processor TPC100
Network Processor NPC100
Partner Processor PPC100
OmniCenter XPC-CL XPC-CL
Modules Supply Drawer OSD24
Cath Rack OCR48
Suture Rack OSR24
Magnetic Card Reader MCR100
Upgrades OmniSupplier OS2
Upgrade OS2U
OmniSupplier PC Box OSPC
OmniSupplier Aux. Box OSAX
OmniSupplier Printer OSO
I.
FIRST AMENDMENT
This First Amendment ("First Amendment") by and between Premier Purchasing
Partners, L.P., a Delaware corporation, ("Purchasing Partners") and OmniCell
Technologies Inc. hereby amends the Agreement effective July 1, 1997 by
Purchasing Partners and OmniCell Technologies (the "Agreement").
RECITALS
Whereas, Purchasing Partners have entered into an Agreement for the purpose
of selling OmniCell Technologies Inc. products to Premier facilities;
Whereas, OmniCell Technologies Inc. and Purchasing Partners desire to amend
the Agreement as set forth in this First Amendment.
Now, Therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto promise and agree as follows:
1. Seller will remit to Purchasing Partners quarterly, an administrative
fee (the "Administrative Fee") equal to ___ percent __ of the total
dollar volume of Products purchased by Participating Premier Members
through Seller or through any Authorized Seller's Distributors during
such period. Seller will pay to Purchasing Partners the
Administrative Fee by a check payable to "Premier Purchasing Partners,
L.P." sent to the attention of "Controller" which shall be received at
Purchasing Partners' address as set forth above no later than thirty
(30) days after the last day of the quarter.
In Witness Whereof, the undersigned duly authorized representatives of the
parties have executed this First Amendment as of the date below written.
Premier Purchasing Partners, L.P. OmniCell Technologies Inc.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
President Central Vice President
November 18, 1997 November 18, 1997
----------------------------------- -----------------------------------
Date Signed Date Signed
1.
PREMIER PURCHASING PARTNERS, L.P.
--------------------------------------------------
AMENDMENT NUMBER 2 TO GROUP PURCHASING AGREEMENT
--------------------------------------------------
CONTRACT #: PP-CE-047A
Product/Services Category: Automated Supply Stems and Accessories
(Year 2000 Compliance)
This Amendment Number 2 ("Amendment"), is entered into effective December
1, 1997 (the "Effective Date"), and shall amend and modify the Group Purchasing
Agreement (Contract #: PP-CE-047A) by and between Premier Purchasing Partners,
L.P. ("Purchasing Partners"), and OmniCell Technologies ("Seller"), dated
effective June 1, 1997 (the "Agreement"), as follows:
1. Year 2000 Compliance. The Agreement is hereby amended to add the
--------------------
following provision to the Agreement:
"Year 2000 Compliance. Seller warrants that any software and hardware
--------------------
included in the Products and any software and hardware used in information
systems by Seller to process transactions related to providing the Products
hereunder, including without limitation, sales order processing, sales
order acknowledgment processing, advanced shipping notice processing,
invoicing, purchase order processing, purchase order acknowledgments,
accounts receivable and accounts payable processes, and sales and
compliance reporting processes, shall operate properly prior to, during and
after the year 2000 and shall not cause any business interruptions or
response time delays (i.e., such software and hardware is "Year 2000
Compliant"). In this regard, Seller agrees that such software and hardware
shall contain, at a minimum:
a. date formats that have century recognition;
b. calculations that accommodate same-century and multi-century formulas
and date values;
▇. ▇▇▇▇ interface values that reflect the century; and
d. calculations that accommodate the occurrence of leap years.
Upon Purchasing Partners' request, Seller agrees to provide Purchasing
Partners with documentation demonstrating that the Products and Seller's
transaction processing systems are Year 2000 Compliant. If at any time
during the term hereof it is reasonably determined by Purchasing Partners
that any Products and/or Seller's transaction processing systems are not
Year 2000 Compliant, Seller agrees to correct the problem at no additional
charge within fifteen (15) days of receiving written notice of such problem
from Purchasing Partners (the "Problem Notice"). In the event Seller is
unable within such time period to correct any such problem with respect to
certain Products, Seller shall provide Participating Members with a full
refund of all monies paid for the applicable Product(s) within thirty (30)
days of its receipt of the Problem Notice.
1.
2. Other Terms and Conditions. All other terms and conditions of the
--------------------------
Agreement shall remain in full force and effect.
This Amendment is hereby executed as of the Effective Date by the parties'
authorized representatives set forth below.
Premier Purchasing Partners, L.P. OmniCell Technologies
("Purchasing Partners") ("Seller")
By: PREMIER PLANS, INC.,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ -------------------------------
Printed Name: ▇▇▇▇ ▇▇▇▇▇▇ Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- ---------------------
Title: President P.P. Title: Vice President of Marketing
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2.