Purchase order standard terms and conditions
The Children's Mercy Hospital—Purchase Order Standard Terms and Conditions
BY ACCEPTING THE ATTACHED PURCHASE ORDER(S) ("P.O.") OR PERFORMING THEREUNDER, SELLER AGREES TO COMPLY WITH THESE STANDARD TERMS AND CONDITIONS ("TERMS"). ACCEPTANCE OF GOODS OR SERVICES BY THE CHILDREN'S MERCY HOSPITAL ("BUYER") IS EXPRESSLY LIMITED TO THE TERMS OF THE P.O. AND THESE TERMS, WHICH SHALL APPLY IN ACKNOWLEDGING OR ACCEPTING THE P.O. ACCEPTANCE BY BUYER OF GOODS OR SERVICES SHALL NOT CONSTITUTE AGREEMENT TO SELLER'S TERMS AND CONDITIONS, AND BUYER HEREBY OBJECTS TO ANY ADDITIONAL OR REVISED TERMS PROPOSED BY SELLER (WHETHER OR NOT IN SELLER'S ACKNOWLEDGEMENT OR OTHER FORMS INCLUDING, WITHOUT LIMITATION, SELLER'S STANDARD TERMS AND CONDITIONS OF SALE).
1. AGREEMENT. Seller agrees to provide the goods ("Goods") and/or perform the services ("Services") described in the attached P.O. in accordance with these Terms and the P.O. (collectively, the "Agreement"). Any reference to Seller documents herein is only to specifications and technical data therein. This Agreement contains the entire agreement among the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, or statements made prior to or at the acceptance or signing hereof, express or implied, oral or written. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. These Terms shall control over any inconsistent term or condition contained in the P.O. The headings herein are for reference only. This Agreement may not be amended other than by written agreement signed by both parties. This Agreement becomes effective when (a) executed by both Buyer and Seller; or (b) when Seller commences performance; or (c) when Seller tenders Goods to Buyer, whichever event occurs earliest.
2. GOODS. (a) DELIVERY. SELLER ACKNOWLEDGES THAT THE TIME FOR PERFORMANCE AND DELIVERY SCHEDULE SPECIFIED HEREIN ARE MATERIAL AND OF THE ESSENCE TO PERFORMANCE OF THIS AGREEMENT. If Seller fails to deliver Goods within the time specified, Buyer may choose to direct expedited routing at Seller's cost or terminate all or part of this Agreement. Buyer's count will be accepted as conclusive on all shipments not accompanied by a packing list, and if there is a discrepancy in counts where a packing list is enclosed, an equitable adjustment shall be made between the parties. (b) FORCE MAJEURE. Neither party shall be liable for any delay or failure of performance due solely to fire, flood, acts of God, or other causes beyond its control and without its fault or negligence, provided that such party shall have given written notice thereof to the other as soon as it could be anticipated or if it could not be anticipated, promptly following the commencement thereof. If Seller is unable, due to such a cause, to timely meet all commitments required herein, Seller shall not discriminate against Buyer or in favor of any other customer in making deliveries of Goods or Services. Seller shall use best efforts to anticipate and mitigate the effect of such cause and to make deliveries as expeditiously as possible. If Buyer believes that an anticipated delay in Seller's deliveries may interfere with Buyer's operations, it may, without liability to Seller, cancel outstanding deliveries hereunder wholly or in part. Notwithstanding any provision of this Agreement, Seller agrees it will not claim impracticability to excuse its performance, whether by reason of Section 2-615 of the UCC, usage of trade or otherwise. (c) INSPECTION. Buyer shall have the right to inspect Goods and to reject any Goods that are in its judgment defective, notwithstanding prior payment. Goods rejected or supplied in excess of quantities in the P.O. may be returned to Seller at its expense. If Buyer receives Goods with defects or nonconformities not apparent on initial examination or that become apparent during installation or upon use, upon Buyer's request, Seller shall replace such Goods at Seller's expense. (d) RISK OF LOSS. Title to Goods and risk of loss shall pass from Seller to Buyer upon receipt, inspection, and acceptance by Buyer at the designated destination. (e) LICENSE. If Goods provided include software programs or intellectual property that are not separately licensed to Buyer, Seller hereby grants a perpetual, irrevocable, royalty-free, non-exclusive license to use the same and any documentation provided therewith. (f) WARRANTY SERVICE. In addition to its standard warranty service, Seller agrees to provide warranty service in accordance with this section, which shall include parts, labor and travel. Seller shall commence all on-site repair within 3 business days of notification by Buyer and agrees to extend the longer of its warranty and the warranty hereunder by 1 calendar quarter for every 10 days that Goods are inoperable during the warranty period. Seller will provide complete warranty documentation for parts not covered by Seller's warranty and shall provide assistance at no additional cost to Buyer to obtain any technical or warranty relief for parts not manufactured by Seller.
3. SERVICES. Undisputed invoices for Services required by the P.O. shall be payable as set forth in the P.O. and shall: (i) describe Services rendered, (ii) list all reimbursable expenses, charges and costs, (iii) attach documentation supporting the same, and (iv) list any discounts, credits or rebates applied. Without limiting Seller's liability hereunder, and prior to Seller commencing any Services (including installation or warranty work) hereunder on property owned or controlled by Buyer or any other party on whose property Goods are installed, Seller shall, at its expense, procure and maintain Workers' Compensation coverage meeting statutory requirements, and General Public Liability and Automobile Public Liability insurance coverage with limits and issued by companies satisfactory to Buyer, authorized to conduct business where Services are performed. Upon request of Buyer, Seller shall furnish an insurance certificate showing that the insurance required above has been procured, is being maintained, and that Buyer has been named as an additional insured, with a waiver of subrogation against Buyer with respect to the Workers' Compensation policy.
4. CHANGES. If price is omitted from the P.O., price shall be the lower of the price last quoted or paid or at the prevailing market price on the date of this P.O. Buyer may prior to commencement of any Service or shipment of Goods, make changes to the P.O. by written notice to Seller, provided that equitable adjustments for any increase or decrease in price or time of performance shall be made.
5. REPRESENTATIONS AND WARRANTIES. In addition to any of Seller's representations and warranties with respect to Goods or Services, Seller represents, warrants and covenants that (i) Services shall be performed in a workmanlike manner and with professional diligence and skill, (ii) Goods are new, in good condition, and are not used or reconditioned (unless otherwise specified in this Agreement), are of good merchantable quality and workmanship and fit for their intended purpose or use, if Seller has reason to know of the same, and that the title conveyed is good and all Goods furnished hereunder are free from any lawful security interest, lien, or encumbrance, (iii) Goods or Services shall conform to the requirements and/or specifications in the P.O. or furnished to Buyer by Seller, (iv) Goods or Services shall be free from defects in workmanship, manufacture, design and material defects for a period of 1 year from the date the Service is rendered or Goods are accepted, (v) Goods or Services do not infringe the rights of any third party under the intellectual property laws of the U.S., any state or any foreign country, (vi) Seller shall observe and comply with, and Goods or Services comply with, all applicable laws, and (vii) Seller's provision of Goods or performance of Services does and will not violate the legal or contractual rights of any third party.
6. INDEMNITY. Seller shall indemnify, hold harmless and defend Buyer, its affiliates and its directors, officers, employees, representatives and agents, as applicable (each a "Buyer Indemnitee"), from and against, and shall reimburse such Buyer Indemnitee with respect to, any and all claims, including claims for property damage and personal injury (including death), demands, causes of action, proceedings, losses, damages, debts, expenses, liabilities, fines, penalties, deficiencies, judgments or costs, including reasonable attorney fees, court costs, amounts paid in settlement and costs and expenses of investigations, at any time and from time to time asserted against or incurred by any such Buyer Indemnitees arising out of, in connection with, resulting from or by reason of (i) any breach, non-fulfillment of, or any inaccuracy in, any representation, warranty or covenant of Seller contained herein, or (ii) any act or omission of Seller, even in the event of any concurrent or contributory negligence or fault on the part of any Buyer Indemnitee, however, Seller will not be responsible hereunder to the extent of the sole negligence or fault of any Buyer Indemnitee as may be finally determined by a court. Buyer shall have the right to set off against all sums due and payable to Seller under this Agreement, any and all sums due and payable to Buyer under this section.
7. LIMITATION ON LIABILITY. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL DAMAGES OR LOST PROFITS OR INCOME ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING RELATING TO THE PERFORMANCE OR BREACH HEREOF, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
8. CONFIDENTIALITY. Any confidential or proprietary information relating to Buyer's business heretofore or hereafter obtained by Seller in connection with this Agreement is referred to as "CI". Seller agrees to take reasonable precautions to keep confidential and prevent disclosure of any CI except to such of its employees and subcontractors who need it to enable Seller to properly perform hereunder, who are subject to agreements obligating them at least to the same extent as Seller is obligated hereunder, and Seller shall be responsible for any unauthorized disclosure of CI by such persons. All CI shall remain the sole property of Buyer. This section shall not apply to CI when, after and to the extent that it either (i) is known to the public other than as a result of disclosure by Seller, or (ii) is required to be disclosed by applicable law, provided Seller shall give Buyer prior written notice to provide it with sufficient time to seek a protective order preventing or limiting the proposed disclosure. Upon Buyer's request, Seller shall return or destroy all CI. Seller shall not use Buyer's name in any publicity release, advertising or promotional activity without its prior written consent.
9. GENERAL PROVISIONS. (a) ASSIGNMENT. All terms of this Agreement shall be binding upon and shall inure solely to the benefit of the parties and their respective successors and assigns, except that Seller may not assign, delegate or transfer its rights or obligations hereunder without the prior written consent of Buyer. It is not the intention of the parties to confer third-party beneficiary rights upon any other person. Buyer reserves the right to approve subcontractors proposed by Seller. Seller is an independent contractor and nothing herein shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party shall have the authority to bind or obligate the other party in any manner to any third party. (b) NO EXCLUSIVE AGREEMENT. Buyer is free to engage others to provide Goods and Services the same as or similar to Seller's. Buyer has the right at any time to cancel all or any separable part of this Agreement by written notice. No cancellation fee, charge or payment will be owed by Buyer to Seller, and Seller will only be owed for the direct costs of any completed and satisfactory performance to the date of cancellation, and any direct and necessary costs incurred to deliver such Goods to Buyer. (c) DISPUTE RESOLUTION. This Agreement shall be governed by and shall be construed, interpreted, and enforced in accordance with the laws of the State of Missouri, without reference to principles of conflicts of law. All disputes arising out of or relating to this Agreement, or the breach or default of this Agreement, shall be determined solely by a state or federal trial court located in Jackson County, Kansas City, MO. Seller will submit any claims or disputes arising under this Agreement to Buyer in writing prior to Buyer making final payment. (d) SURVIVAL. Upon any termination or expiration of this Agreement, only those rights or obligations which by their nature or express duration extend beyond the termination of this Agreement shall survive such termination and continue in effect. Upon termination of this Agreement for any reason, Buyer shall be entitled to a pro-rata refund of any pre-paid fee, cost or expense. (e) NOTICES. All communications given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or if mailed via registered mail, postage prepaid, to Seller at the address and to the attention of the contact person stated in the P.O. and to Buyer, 2401 Gillham Road, Kansas City, MO 64108, to the attention of the President and CEO. A party may change its address for such communications by giving notice thereof pursuant to this section. (f) NO WAIVER; SEVERABILITY. No failure or delay by any party in exercising any right hereunder shall operate as a waiver of the same. No waiver of any default on any one occasion shall constitute a waiver of any subsequent or other default. No single or partial exercise of any right shall preclude the further or full exercise thereof. If any part of this Agreement is held unenforceable, the rest of this Agreement shall continue in effect. (g) REMEDIES. Buyer may cancel this Agreement by written notice to Seller: upon the insolvency or bankruptcy of Seller, the filing of a petition in bankruptcy against it, the appointment of a receiver or trustee for it, any assignment for the benefit of its creditors, or if Seller shall fail to perform any of its obligations hereunder and such failure is not remedied within 15 days after Seller's receipt of written notice from Buyer specifying the same. Any such termination shall be in addition to and shall not be exclusive of or prejudicial to, any other rights or remedies at law or in equity which Buyer may have on account of the default of Seller, and the rights and remedies of Buyer set forth in this Agreement are not exclusive and are in addition to all other rights and remedies of Buyer at law or in equity. If Buyer prevails in bringing any proceeding for the enforcement of this Agreement, Buyer shall be entitled to recover its reasonable attorney fees and other costs incurred. Any sums due Seller hereunder may be applied by Buyer as a set off against any sums owed by Seller to Buyer. (h) AUTHORITY. Each party represents that it has full authority to enter into and perform this Agreement, and the person accepting the P.O. or executing this Agreement on its behalf is properly authorized to do so. Each party further acknowledges that it has read this Agreement, understands it and agrees to be bound by it. (i) TAXES. The parties recognize that Buyer is a non-profit corporation which is tax exempt and agree that actions taken hereunder will take into account and be consistent with Buyer's tax exempt status. Seller further acknowledges and agrees that Buyer shall not be subject to, or responsible for, any taxes shown on the P.O. (j) PRICING DISCLOSURE. The parties acknowledge that the price paid by Buyer may reflect a discounted pricing arrangement. Buyer acknowledges that, by law, it is required to disclose, in any cost reports or claims for reimbursement submitted to Medicare, Medicaid, or certain other health care programs, the cost (including, but not limited to, discounts or any other price reductions) of any items purchased, leased or otherwise obtained and, on request, provide to the U.S. Department of Health & Human Services and any state agencies, any invoices, coupons, statements, and other documentation reflecting such cost. Seller shall fully and accurately report discounted pricing, if applicable, on the invoice, coupon or other statement submitted to Buyer. Buyer may request additional information from Seller to meet its reporting or disclosure obligations and Seller shall provide such requested information to Buyer within a reasonable time of such request. Buyer may also receive subsequent documentation reflecting adjustments or allocations related to available discounted pricing.
"Children's Mercy Hospital & Clinics" and its associated mark are proprietary and protected by law, including United States trademark and copyright law. All rights reserved. Seller is strictly prohibited from copying, reproducing, redistributing or making into a derivative work the same without the express written permission of The Children's Mercy Hospital.