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PREMIER PURCHASING PARTNERS, L.P.
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GROUP PURCHASING AGREEMENT
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COVER SHEET
1. The "Parties" to this Group Purchasing Agreement are:
Premier Purchasing Partners, L.P. Horizon Medical Products, Inc.
("Purchasing Partners") ("Seller")
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Attention: Chief Operating Officer Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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2. Product Category: Cardiac medical devices
3. Effective Date: March 9, 1998
4. Expiration Date: March 8, 2003
5. Term of Agreement: 60 months
6. Guaranteed Delivery Time Period: 30 days (Section 6.5)
7. Purchasing Partners Administrative Fee: 2 % (Section 10.1)
This Group Purchasing Agreement (the "Agreement") is comprised of the
following documents and is entered into by the Parties effective as of the
Effective Date set forth in Item 3 above:
i. This Cover Sheet;
ii. The attached Premier Purchasing Partners Standard Terms and
Conditions;
iii. The attached Additional Terms and Conditions (if any); and
iv. The following attached exhibits:
Exhibit A: PRODUCTS (Products List and Pricing)
Exhibit B: ROSTER OF PARTICIPATING MEMBERS
Exhibit C: AUTHORIZED DISTRIBUTORS
Exhibit D: REPORTING FORMATS
Exhibit E: WIRE INSTRUCTIONS
Exhibit F: MINORITY AND FEMALE-OWNED BUSINESSES POLICY
PREMIER PURCHASING PARTNERS, L.P. Horizon Medical Products, Inc.
("Seller")
By: PREMIER PLANS, INC.,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Printed Name: ▇▇▇▇ ▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: President P.P. Title: Chairman & CEO
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Chief Operating Officer
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PREMIER PURCHASING PARTNERS
STANDARD TERMS AND CONDITIONS
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GROUP PURCHASING AGREEMENT
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WHEREAS, Purchasing Partners is an affiliate of Premier, Inc.
("Premier"), the nation's largest alliance of hospitals and health care
organizations;
WHEREAS, Premier's core objective is to improve the health of
communities;
WHEREAS, such core objective as well as the objective of helping to
assure that patients receive safe and efficacious care can be accomplished, in
part, by achieving economies of scale and innovations through group strategies
and shared resources;
WHEREAS, group purchasing is a fundamental way hospitals and health
systems cooperate to reduce the costs of providing health services;
WHEREAS, Premier's group purchasing program which is the world's
largest health care group purchasing program, is operated by Purchasing
Partners;
WHEREAS, Seller is a leading manufacturer and supplier of medical
devices; and
WHEREAS, Seller has offered to provide products and services to the
Premier membership consistent with the terms of this Agreement;
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and sufficient consideration, the receipt and adequacy of which
is hereby acknowledged, the Parties hereto agree as follows:
1.0 TERM OF AGREEMENT. This Agreement will remain in effect for the period of
time set forth in Item 5 of the Cover Sheet.
2.0 PRODUCTS COVERED. Seller hereby agrees to provide the products described in
Exhibit A hereto (the "Products") pursuant to the terms of this Agreement.
Seller shall provide Purchasing Partners with written notice of any Products
which are not manufactured by Seller (i.e., those Products which are
manufactured by a third party), setting forth the Product name and the name of
the actual manufacturer.
3.0 PARTICIPATING MEMBERS. Set forth in Exhibit B hereto is a list of the
Premier members who shall have the right to purchase Products in accordance with
this Agreement ("Participating Members"). Exhibit B may be amended by Purchasing
Partners from time to time upon written notice to Seller. Purchasing Partners
shall have the right to provide Exhibit B to Seller on computer diskette or
through other electronic means rather than in printed form. Purchasing Partners
shall provide Seller with written notice of any entities/hospitals which have
been removed from Exhibit B and are therefore no longer Participating Members
(the "Removal Notice"). Seller shall stop providing the pricing set forth herein
to such removed entities/hospitals sixty (60) days after Seller's receipt of the
Removal Notice.
Purchasing Partners shall require Participating Members to terminate
their participation in the buying programs of other group purchasing
organizations as a condition to participation in Purchasing Partners' group
purchasing program. To this end, Seller will not offer or otherwise make the
Products available to Participating Members through arrangements with other
group purchasing organizations. Seller will remove each Participating Member's
name from the roster of participants in other group purchasing organizations
that have arrangements with Seller for the Products.
4.0 COMMITMENT REQUIREMENTS. In order to be entitled to the pricing terms
(described in Exhibit A hereto), Participating Members shall comply with the
commitment requirements set forth in Exhibit A.
5.0 TERMINATION OF EXISTING CONTRACTS. Any Participating Member desiring to
avail itself of the benefits of this Agreement may, at its option and without
liability, terminate any existing contract(s) or other arrangement(s) with
Seller for the purpose of participating in the group purchasing arrangement set
forth in this Agreement.
6.0 ORDERING, SHIPPING, DELIVERY.
6.1 AUTHORIZED DISTRIBUTORS. All Products purchased pursuant to this
Agreement by Participating Members which are not purchased directly from Seller,
where applicable, may be purchased from and through authorized distributors
("Authorized Distributors"). A list of all current Authorized Distributors is
set forth in Exhibit C. Seller warrants that it shall not make any change or
take any action with respect to Authorized Distributors which, if implemented,
would materially change the ultimate delivered price paid by the Participating
Member.
6.2 PAYMENT TERMS. A Participating Member will receive an additional
two percent (2%) off of the pricing set forth in Exhibit A if full payment is
made to Seller within thirty (30) days following either delivery of Product(s)
to or receipt of invoice by the Participating Member, whichever date is later.
In any event, full payment must be made within forty-five (45) days following
such delivery of Product(s) or receipt of invoice, whichever date is later.
Payment terms for Products purchased from an Authorized Distributor will be
negotiated between each Participating Member and the Authorized Distributor.
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6.3 SHIPPING TERMS. All shipments direct from Seller shall be Net
F.O.B. destination, with all costs of transportation and insurance being paid by
Seller, with the exception of special delivery and/or air shipments requested by
Participating Members. Such special delivery and/or air shipment charges shall
be prepaid by Seller and invoiced to the requesting Participating Member for
such member's payment pursuant to the payment terms set forth in Section 6.2 of
this Agreement. Participating Members 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 a Participating Member, after such inspection, rejects
the Product(s) due to discovery of broken or damaged items of Products or the
packages containing Products, the Participating Member shall have the right to
return the damaged Product(s) for, at the Participating Member's option, full
credit of purchase price or replacement of the damaged Product(s). Shipping
terms for Products purchased from an Authorized Distributor will be negotiated
between each Participating Member and the Authorized Distributor.
6.4 MINIMUM ORDER. Seller shall have no minimum purchase order
requirement applicable to any or all Participating Members. For Products
purchased from an Authorized Distributor, any minimum order purchase requirement
will be negotiated between each Participating Member and the Authorized
Distributor.
6.5 GUARANTEE OF DELIVERY. Seller guarantees that all Products ordered
by any Participating Member shall be delivered to such member within no more
than the number of days of Seller's receipt of such member's order for the
Product(s) as is set forth in Item 6 of the Cover Sheet. If Seller fails to
deliver any Product(s) within the above-mentioned time period, the Participating
Member may purchase any substitute product(s) from another source(s), and Seller
shall reimburse such member for the difference between such member's actual
F.O.B. destination acquisition cost for such product(s) and the price(s) such
member would have paid for Seller's Product(s) under this Agreement. Upon the
request of any Participating Member, Seller will assist any such Participating
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 Distributor, guarantee of delivery
provisions will be negotiated between each Participating Member and the
Authorized Distributor. If the Authorized 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 Distributor, the Participating
Member may purchase any substitute product(s) from another source(s), and Seller
shall reimburse such member for the difference between such member's actual
F.O.B. destination 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 Seller is notified by the Participating Member of such failure to deliver
and cannot provide an alternative product acceptable to the Participating Member
at the same price. Upon the request of any Participating Member, Seller will
assist any such Participating Member in finding alternative acceptable sources
for any Product(s) which an Authorized Distributor cannot deliver according to
the guaranteed delivery time specified above.
6.6 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 Members for
Products during the duration of the Emergency Condition. Seller will use best
efforts to set aside an adequate quantity of Products for the exclusive purchase
by Participating Members for the duration of the Emergency Condition.
7.0 PRICING TERMS.
7.1 PRICING. Product pricing is set forth in Exhibit A hereto.
7.2 *** Seller also agrees to extend any terms or pricing offered to
an individual Participating Member to all Participating Members. Notwithstanding
any other provision of this Agreement, upon obtaining the prior written consent
of Purchasing Partners (which may be withheld in Purchasing Partner's sole
discretion), Seller may, under certain circumstances (e.g., Beta testing,
research and development related activities) and for a specified reasonable
period of time, offer special acquisition programs to certain designated
Participating Members, the terms of which shall be mutually agreed upon by
Seller, Purchasing Partners and such Participating Members.
7.3 PRICING OF NEW PRODUCTS. Pricing for any additional and/or new
products to be added to Exhibit A will be negotiated at prices consistent with
the prices of Products already covered by this Agreement. Seller agrees to
inform Purchasing Partners of new products (branded or generic) that Seller
plans to introduce to the market ("New Product Information") as far in advance
as possible. Seller also agrees to provide to Purchasing Partners, as soon as
practical, a copy of the summary basis of approval or medical officer's report
for new products approved by the FDA. Purchasing Partners agrees to treat all
New Product Information as Confidential Information (as defined) in accordance
with the terms of Section 14 hereof.
8.0 MARKETING/SALES SUPPORT.
8.1 SELLER REPRESENTATIVES. Seller will provide representatives to call
upon Participating Members on a periodic basis mutually agreed to by Seller and
each individual Participating Member.
8.2 IN-SERVICE/CLINICAL TRAINING. Included in the price of the
Product(s), Seller will provide to each Participating Member in-service and
clinical training related to the Products as required or requested by each
Participating Member.
9.0 PRODUCT PRICING INFORMATION; SALES DOCUMENTATION; ADMINISTRATIVE
FEE REPORTING.
9.1 PRODUCT PRICING INFORMATION (SALES CATALOGS). Seller will provide
to Purchasing Partners product pricing information in the ANSI X.12 format as
detailed in Exhibit D. If Seller cannot provide product pricing information in
this format, Seller may utilize one of the alternative formats detailed in
Exhibit D. Purchasing Partners shall have the right to provide Exhibit D to
Seller on computer diskette or
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through other electronic means rather than in printed form and to update Exhibit
D from time to time.
9.2 SALES DOCUMENTATION. Seller will provide Purchasing Partners with
quarterly reports of all Products purchased by each Participating Member during
each calendar quarter of the term. Seller shall provide Purchasing Partners such
reports no later than sixty (60) days after the last day of the applicable
calendar quarter. Reports will include, without limitation, reporting period
start and end dates, Participating Member name, city, state, and sales volume
per Product (totaled per Participating Member). Participating Members will be
identified by HIN and/or DEA number. Seller will provide such sales information
in the ANSI X.12 format as detailed in Exhibit D. If Seller cannot provide such
information in this format, Seller may utilize one of the alternative formats
detailed in Exhibit D.
9.3 ADMINISTRATIVE FEE REPORTING. Seller will provide Purchasing
Partners with quarterly reports setting forth the Purchasing Partners
Administrative Fee (as defined in Article 10 below) amounts generated by each
Participating Member during each calendar quarter of the term. Seller shall
provide Purchasing Partners such reports no later than sixty (60) days after the
last day of the applicable calendar quarter. Participating Members will be
identified by HIN and/or DEA number. Seller will provide such information in the
ANSI X.12 format as detailed in Exhibit D. If Seller cannot provide such
information in this format, Seller may utilize one of the alternative formats
detailed in Exhibit D.
9.4 PARTICIPATING MEMBERS' EDI TRANSACTION SETS. Seller shall use best
efforts to accommodate the requests of Participating Members with respect to
Seller's use of Electronic Data Interchange ANSI X.12 Transaction Sets,
including without limitation, Transaction Sets 810 (invoice), 820 (payment
order/remittance advice), 832 (price/sales catalog), 850 (purchase order), 855
(purchase order acknowledgment), 856 (ship notice/manifest), 844 (product
transfer account adjustment), and 849 (response to product transfer account
adjustment [or charge back or rebate]).
10.0 FEES.
10.1 PURCHASING PARTNERS ADMINISTRATIVE FEE. Seller will pay Purchasing
Partners an administrative fee (the "Purchasing Partners Administrative Fee")
equal to the percentage set forth in Item 7 of the Cover Sheet of the total
dollar volume of Products purchased by Participating Members through Seller or
through any Authorized Distributors during the term of this Agreement.
10.2 MANNER OF PAYMENT. Seller will pay to Purchasing Partners the
Purchasing Partners Administrative Fee quarterly, in advance, without demand or
notice, within fifteen (15) days of the Effective Date and thereafter, within
fifteen (15) days of the end of each calendar quarter during the term. Seller's
first Administrative Fee payment hereunder shall include amounts due with
respect to any "stub" period (i.e., the period of time from the Effective Date
until the first day of the first calendar quarter) and the entire first calendar
quarter.
Seller's first two (2) payments hereunder shall be based on the
estimated total dollar volume of Products to be purchased by Participating
Members through Seller or through any Authorized Distributor for the applicable
period (the "Estimated Purchase Volume"). The Estimated Purchase Volume shall be
mutually agreed to by the Parties prior to the execution of this Agreement and
set forth in a separate written memorandum signed by the Parties. The actual
total dollar volume of Products purchased by Participating Members through
Seller or Authorized Distributors ("Actual Purchase Volume") shall be determined
within sixty (60) days after the end of each calendar quarter and reconciled
against the Estimated Purchase Volume amount which was utilized for the
applicable time period. Any overpayment or underpayment shall be reflected as an
adjustment to the next quarterly advance payment due Purchasing Partners from
Seller.
Upon determination of the Actual Purchase Volume based on the
reconciliation process described above (the "Reconciliation Process"), such
amount shall be used as the Estimated Purchase Volume thereafter until the next
Reconciliation Process is completed.
All payments shall be by wire or electronic transfer to the account of
"Premier Purchasing Partners, L.P." in accordance with the written instructions
set forth as Exhibit E hereto or by a check payable to "Premier Purchasing
Partners, L.P." 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.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS. Seller represents and warrants that
throughout the term of this Agreement and any extension hereof, Seller and all
Products shall be and shall remain in compliance with all applicable federal,
state and local laws and regulations, including without limitation all
applicable "safe harbor" regulations relating to group purchasing organizations
and fees, discounts and incentives paid and/or granted to group purchasing
organizations and any participants therein. Seller shall disclose to
Participating Members, per applicable regulations, the specified dollar value of
discounts or reductions in price. The Parties acknowledge and agree that for
purposes of 42 C.F.R. Section 1001.952(h), any reduction in the amount Seller
charges a Participating Member (excluding group purchasing organization fees,
such as the Purchasing Partners Administrative Fee) is a "discount or other
reduction in price" to the Participating Member. Participating Members shall
disclose the specified dollar value of discounts or reductions in price under
any state or federal program which provides cost or charge-based reimbursement
to such Participating Members 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 by Participating Members 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,
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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.
12.0 INDEMNIFICATION, WARRANTIES, SPECIFICATIONS AND NOTICES.
12.1 INDEMNIFICATION. Seller hereby agrees to indemnify, defend and
hold harmless Purchasing Partners and each Participating Member and their
respective directors, officers, employees, agents and insurers from and against
any and all claims, demands, actions, losses, expenses, damages, liabilities,
costs (including, without limitation, interest, penalties and reasonable
attorneys' fees) and judgments arising out of: (a) bodily injury, property
damage or any other damage or injury caused by any of the Products covered by
this Agreement, and (b) the acts or omissions of Seller and its employees and
agents acting under its control or supervision. Purchasing Partners hereby
agrees to indemnify, defend and hold harmless Seller and its directors,
officers, employees, agents and insurers from and against any and all claims,
demands, actions, losses, expenses, damages, liabilities, costs (including,
without limitation, interest, penalties and reasonable attorneys' fees) and
judgments arising out of the acts or omissions of Purchasing Partners and its
employees and agents acting under its control or supervision.
12.2 WARRANTIES AND PUBLISHED SPECIFICATIONS. Seller hereby warrants
that each of the Products shall be free from defects in material and workmanship
and shall conform to the published specifications for such Product and Seller's
representations regarding the functions and uses for which the Product is
marketed. All of the warranties referenced or set forth in this Section 12.2
shall be in addition to all other warranties which may be prescribed by law,
including without limitation the warranty of fitness for a particular purpose.
12.3 PRODUCT NOTICES. Seller agrees to send all Product notices, as
well as notices of any other changes affecting the Products and notices of new
Products, to each Participating Member with copies to Purchasing Partners.
12.4 INSURANCE. Seller shall maintain adequate products liability,
general public liability, and property damage insurance against any claim or
claims which might or could arise regarding products purchased by Participating
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. Seller shall
provide Purchasing Partners with at least thirty (30) days prior written notice
of any cancellation or material modification of such insurance.
13.0 TERMINATION.
13.1 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 in equity.
13.2 ORDERS PLACED PRIOR TO TERMINATION. Seller shall fulfill, in
accordance with the terms of this Agreement, all orders for Products submitted
by Participating Members and received by Seller prior to termination or
expiration of this Agreement.
13.3 TERMINATION WITHOUT CAUSE. Either party may terminate this
Agreement at any time without cause or penalty upon providing the other party
with ninety (90) days' advance written notice.
13.4 SURVIVAL. The following paragraphs of this Agreement shall survive
expiration or termination of this Agreement: (i) the payment of Administrative
Fees pursuant to Article 10.0 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 15.12; (iii) the representations, warranties and covenants set forth
in Section 12.2; (iv) the indemnification undertaking contained in Section 12.1;
(v) the designation of Participating Members as third party beneficiaries
pursuant to Section 15.7; (vi) the undertaking to fill orders submitted to and
received by Seller prior to the date of expiration or termination set forth in
Section 13.2; (vii) the confidentiality undertakings contained in Article 14;
(viii) the rights and limitations on assignment contained in Sections 15.4 and
15.10; (ix) the governing law provisions contained in Section 15.1; (x)
reasonable attorney's fees provided for in Section 15.9; and (xi) compliance
with laws and regulations provided for in Article 11.0.
14.0 CONFIDENTIALITY.
14.1 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, Participating Members, or Seller and their respective operations,
employees, services, patients or customers.
14.2 PROTECTION OF CONFIDENTIAL INFORMATION. Seller and Purchasing
Partners acknowledge that Seller, Purchasing Partners, or Participating Members
may disclose Confidential Information to each other in connection with this
Agreement. If Seller or Purchasing Partners 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 it 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 Purchasing Partners or Seller. Notwithstanding the
foregoing, Purchasing Partners shall have the right to disclose Confidential
Information to outside consultants as necessary for Purchasing Partners to
provide support services for Participating Members in connection with this
Agreement.
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14.3 AGREEMENT CONFIDENTIALITY. Neither Purchasing Partners nor Seller
shall disclose the terms of this Agreement to any other person or entity outside
its organization and affiliates other than to a Participating Member, a legal
advisor, a financial advisor or an accountant, or as required by law. For
purposes of this provision, an affiliate is an entity in which Purchasing
Partners or Seller, as appropriate, maintains an ownership position in or a
contractual relationship with, and the disclosure is required so that the
disclosing party may fulfill its obligations hereunder. 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.
14.4 LIMITATION ON OBLIGATION. Seller and Purchasing Partners shall
have no obligation concerning any portion of the Confidential Information which:
(a) was known to it before receipt, directly or indirectly, from the disclosing
party; (b) is lawfully obtained, directly or indirectly, by it from a non-party
which was 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 receiving
party; (d) is required to be disclosed by the receiving party by applicable law
or legal process; or (e) is developed by the receiving party independent of the
Confidential Information disclosed by the disclosing party. The receiving party
shall not disclose any portion of the Confidential Information to any person
except those of its employees and affiliates having a need to know such portion
to accomplish the purposes contemplated by this Agreement.
15.0 MISCELLANEOUS.
15.1 GOVERNING LAW AND VENUE. This Agreement is being delivered and
executed in the State of Illinois. In any action brought by or against
Purchasing Partners, the validity, construction and enforcement of this
Agreement shall be governed in all respects by the laws of the State of
Illinois, and venue shall be proper only in a court of competent jurisdiction
located in the State of Illinois in ▇▇▇▇ County. In the event of any dispute
arising out of this Agreement, whether at law or in equity, brought by or
against a Participating Member, venue shall be proper only in a court of
competent jurisdiction located in the county and state in which such member 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 15.1.
15.2 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.
15.3 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.
15.4 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
hereunder except as contemplated in this Agreement, without the other party's
prior written consent.
15.5 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.
15.6 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 (receipt confirmed) 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 on the Cover Sheet. 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. Seller shall
provide a copy of any notice to Purchasing Partners provided under this Section
to the Premier Legal Department at the following address:
Premier Legal Department
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Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: General Counsel
15.7 ENFORCEABILITY. The parties hereto acknowledge and agree that (i)
this Agreement is entered into by Purchasing Partners for the express, intended
benefit of Participating Members, (ii) each of the Participating 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 Participating Members shall be entitled to enforce the terms and
provisions of this Agreement to the same extent as Purchasing Partners.
15.8 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.
15.9 ATTORNEYS' FEES. Should any party engage 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 in addition to any other relief granted.
15.10 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.
15.11 FORCE MAJEURE. The obligations of either party to perform under
this Agreement will be excused during each period of
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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 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 forty-five (45) days following notice by such party pursuant to
this Agreement, the other party may terminate this agreement immediately upon
written notice to such party.
15.12 AUDIT OF COSTS. Seller shall permit Purchasing Partners or its
agent to conduct periodic audits of records relating to Seller's performance
under this Agreement including without limitation relevant orders, invoices,
volume reports and administrative fees. The audits shall be conducted at
Purchasing Partners' cost 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.
15.13 MINORITY AND FEMALE-OWNED BUSINESSES. Seller represents and
warrants that it is an "equal opportunity employer". Seller shall also use its
best efforts to support Purchasing Partners' Minority and Female-Owned
Businesses Policy as set forth in Exhibit G hereto.
15.14 ENTIRE AGREEMENT. This Agreement, including the Cover Sheet, the
Additional Terms and Conditions (if any) and all Exhibits hereto, constitutes
the entire understanding and agreement between Seller and Purchasing Partners
concerning the subject matter hereof, and supersedes all prior negotiations,
agreements and understandings between Seller and Purchasing Partners, whether
oral or in writing, concerning the subject matter hereof, including, but not
limited to, all prior agreements between Seller and either AmHS Purchasing
Partners, L.P., American Healthcare Systems, Inc., Premier Health Alliance,
Inc., or SunHealth Alliance, Inc., whether or not assigned to Purchasing
Partners or Premier.
15.15 LABOR AND EMPLOYMENT LAWS. Seller represents and warrants that it
complies with applicable labor and employment laws and prohibits any form of
child labor or other exploitation of children in the manufacturing and delivery
of Products, consistent with provisions of the International Labor
Organization's Minimum Age Convention of 1973. A child is any person who is less
than fourteen (14) years of age or who is younger than the compulsory age to be
in school in the country in which Seller's business is being conducted, if that
age is higher than fourteen (14).
15.16 NO ADDITIONAL OBLIGATIONS IMPOSED BY SELLER. Except as expressly
set forth herein, Seller shall not impose any obligations on Purchasing Partners
and/or Participating Members as a condition to receiving any of the benefits set
forth in this Agreement.
15.17 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same agreement.
15.18 DATA/PAYMENT EXCHANGE. Seller hereby acknowledges that Purchasing
Partners is currently developing technology and processes which may enable
Participating Members and Seller to more efficiently exchange information and
payments (e.g., through use of the Internet). Seller agrees to cooperate with
Purchasing Partners' efforts in this regard and shall use best efforts to
implement any data/payment exchange system reasonably adopted by Purchasing
Partners for group purchasing activities.
15.19 TECHNOLOGICAL BREAKTHROUGHS. Purchasing Partners believes an
essential element of advancing the core objectives and mission of Premier is to
encourage the development of health care technology which significantly improves
the quality, process and/or outcome of care. In support of this belief, the
Parties acknowledge that certain products which incorporate breakthrough
technologies ("Breakthrough Products") have the potential to significantly
improve safety to patients or hospital staff, significantly improve non-clinical
operational efficiency, or deliver dramatic process of care cost savings or
improved clinical outcomes when compared to the level of safety, operational
efficiency, process of care and/or outcomes delivered through use of the
Products. Purchasing Partners therefore reserves the right to enter into
agreements with the supplier(s) of such Breakthrough Products in order to make
such products available to Participating Members. Seller hereby agrees that the
purchase of such Breakthrough Products by Participating Members shall not
negatively impact such members' access to any favorable terms and conditions
offered under this Agreement.
15.20 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
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monies paid for the applicable Product(s) within thirty (30) days of its receipt
of the Problem Notice. Seller shall also be responsible for, and shall defend,
indemnify and hold Purchasing Partners and Participating Members harmless from
and against, any and all losses, liabilities, costs or claims, including without
limitation, loss of data, lost profits and attorneys fees, which arise as a
result of Products and/or Seller's transaction processing systems not being Year
2000 Compliant.
15.21 CONTROLLING DOCUMENT. In the event of any conflict between this
Agreement and any document, instrument or agreement prepared by Seller
(including without limitation, Seller's purchase orders and invoices), the terms
of this Agreement shall control.
[ ] END OF STANDARD TERMS AND CONDITIONS [ ]
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Exhibit A
PRODUCTS LIST AND PRICING
Products and pricing may be added to this Agreement upon the mutual written
agreement of Purchasing Partners and Seller.
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Exhibit B
ROSTER OF PARTICIPATING MEMBERS
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Exhibit C
AUTHORIZED DISTRIBUTORS
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Exhibit D
REPORTING FORMATS
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Exhibit E
PURCHASING PARTNERS WIRE INSTRUCTIONS
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Exhibit F
MINORITY AND FEMALE-OWNED BUSINESSES POLICY
PREMIER PURCHASING PARTNERS, L.P.
Purchasing Partners desires to promote an environment that ensures equal
opportunity and access to all minority and female-owned businesses desiring to
provide high quality goods and services to Purchasing Partners and Participating
Members. Purchasing Partners is committed to ensuring that its procurement
efforts and those of its vendors are effective, fair and competitive, and
include as many of these businesses as is practical. Implementing this policy is
good business practice and consistent with our mission and that of our partners.
Furthermore, Purchasing Partners and its related organizational entities
recognize and are sensitive to the high level of importance that Participating
Members especially place upon the development of minority and female-owned
businesses in their local communities.
Purchasing Partners and its affiliated entities will ▇▇▇▇▇▇ an atmosphere that
invites the broadest possible participation of these businesses in Purchasing
Partners' procurement efforts and those of Participating Members. It is
Purchasing Partners' policy to encourage and support the use of qualified
minority and female-owned vendors. Specifically, it is Purchasing Partners'
intent to increase the sales and participation of qualified minority and
female-owned businesses and to link them to our corporate and business partners
whenever possible. Member management plays a vital role in this effort,
identifying appropriate minority and female-owned contractors and subcontractors
for Purchasing Partners and its vendors.
It is our belief that Purchasing Partners' vendors should provide qualified
minority and female-owned businesses with the opportunity to participate in the
mainstream of business activities. Purchasing Partners will encourage its
business partners to develop programs to provide minority and female-owned
businesses and those firms which have the greatest concentration of minority
ownership, with equal access to their organizations, advocating that such firms
be utilized to the fullest extent practicable and consistent with good
purchasing practices. Purchasing Partners desires to assist its business
partners in this endeavor and will work with each of them to increase the
participation of cost-effective minority and female-owned businesses as their
contractors and subcontractors, insuring that such suppliers are given the
opportunity to bid competitively.