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Terms and Conditions for the Purchase of Equipment
ATTACHMENT TO PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF EQUIPMENT
1. Incorporated Terms and Conditions. The following terms and conditions (the “Terms”) are attached to and made a part of the applicable Purchase Order issued by Buyer. The Purchase Order and these Terms are collectively referred to as the “Agreement”. To the extent that a copy of the Vendor’s Quote and the Equipment Specifications are attached to the Purchase Order, such materials are hereby incorporated herein by reference; provided, however, that in the event that Equipment Specifications are not attached to the Purchase Order, the Equipment Specifications shall refer to Vendor’s performance specifications for the Equipment (the “Specifications”).
2. Vendor Invoices. Upon receipt of a Purchase Order, Vendor will invoice Buyer for any amounts due therein. Vendor’s invoices must contain the relevant Purchase Order number(s) and any invoice that fails to contain such information shall be rejected by Buyer. In that event, Vendor will issue a new, corrected invoice to Buyer for payment. Invoices containing more than one Purchase Order shipment must be itemized by Purchase Order numbers. Vendor shall issue any and all invoices within six (6) months of issuance of each Purchase Order in order to receive payment for same from Buyer. Payment by Buyer shall be NET 60 days from the date of receipt of Vendor’s invoice.
3. Equipment and Delivery of Equipment. Equipment will be delivered, F.O.B. Destination (shipment, handling, insurance pre-paid and absorbed by Vendor) no later than the delivery date indicated on the Purchase Order. Title and risk of loss or damage to items shall remain with Vendor until delivered to the Installation Site and Buyer has inspected the delivered components and determined that the shipment is complete and the components undamaged. The Equipment shall be packaged appropriately and all cartons shall be clearly stamped with Buyer's Purchase Order Number. Buyer must be able to identify easily all items of the Equipment contained within each carton. The Equipment shall be packaged appropriately and all cartons shall be clearly stamped with Buyer's Purchase Order Number.
Vendor shall provide Buyer with two (2) copies of operator and service instruction manuals (which shall include electrical and mechanical schematics, and parts and current price lists).
Vendor shall be responsible for the removal of any and all trash and waste from the installation site.
4. Commitment to Supply. Vendor will reimburse Buyer for the difference between the Contract Price and List Price of the Products purchased from any alternate wholesaler or supplier other than Vendor when Vendor is unable or unwilling to supply the Products for any reason.
5. Vendor Responsibilities. Vendor agrees to: (i) deliver the Equipment described on attached purchase order at no cost or expense to Hopkins; (ii) install the Equipment or provide installation instructions to Hopkins; and (iii) provide training or instructions regarding the Equipment’s operation to Hopkins personnel; and (iv) provide a toll-free hotline number for technical assistance. In the performance of the services hereunder, all Vendor personnel shall comply with all applicable Buyer policies and procedures provided in advance to Vendor.
6. Testing/Certification/Acceptance. Upon completion of installation of the Equipment, Vendor shall perform prescribed tests to determine that the Equipment is operating in conformance with Vendor’s published performance specifications for the Equipment and any other requirements agreed to by the parties (“Equipment Turnover”). A three conductor (grounded) power cord, no less than 18 AWG, with an approved hospital grade plug cap, is required. For portable or mobile equipment, the power cord is to be permanently attached; if portable equipment is provided without a permanently attached power cord, Buyer may, in its discretion, attach such permanent cord. Said modification to the Equipment will not affect the warranty provided by the Vendor. Grounding resistance is to be less than 0.5 ohms to any exposed conductive surface. Leakage current is to be no more than 50 microamperes (10 microamperes if the Equipment is specified as being patient-isolated) between any patient lead and ground or any other patient lead, with the Equipment on or off, grounded or ungrounded, and correct or reversed polarity. In the event the Equipment or any feature or option thereof requires certification under Federal law, Vendor will complete and file all necessary reports regarding Vendor’s manufacture, assembly, installation or other activity relating to the Equipment. Final payment from Buyer shall not be due and owing unless and until the Equipment reaches Acceptance. “Acceptance" of the Equipment shall be deemed to occur on the date when, in the reasonable opinion of Buyer, the Equipment conforms to the Equipment Specifications, and has continuously operated in compliance with the Specifications for thirty (30) days after Equipment Turnover.
7. Training. If applicable and necessary, training on the use and operation of the Equipment and related disposables will be provided at a mutually agreeable time at the request of Buyer. Training will be conducted at Buyer’s location, and the training, as well as any written materials distributed by Vendor, shall be provided to Buyer at no additional cost.
8. No Taxes. Buyer represents that it is a tax-exempt corporation under Sections 501(a) and 501(c)(3) of the Internal Revenue Code of the United States, as amended, and under applicable laws of the State of Maryland. A copy of the tax exemption certificate for the appropriate Buyer entity, issued by the State of Maryland, will be provided upon request. Vendor shall take all action required to cause Buyer's purchase of the Equipment to be treated as tax-exempt transactions, and in no event shall Buyer be responsible for any sales, use, property, gross receipts, or similar taxes levied against any party to this Agreement.
9. Indemnification on Intellectual Property Claims. Vendor shall defend, indemnify and hold harmless Buyer and its subsidiaries or affiliates, and their trustees, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Buyer’s use or possession of the Equipment pursuant to and for the purposes set forth in this Agreement infringes or violates the copyright, trade secret, trademark, United States patent, or other proprietary right of any third party. Vendor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Buyer gives Vendor (i) the sole right to control and direct the investigation, preparation, defense, and settlement of any such claim, (ii) prompt notice of any claim, provided, however, that Buyer’s failure to give prompt notice to Vendor of any such claim shall not relieve Vendor of any obligation hereunder except and to the extent that such failure prejudices Vendor’s ability to defend against such claim, and (iii) its cooperation and assistance with the investigation, defense or settlement of the claim. No settlement that prevents Buyer from continuing to use the Equipment, as provided herein, shall be made without Buyer’s prior written consent. Buyer shall, at its own cost and expense, has the right to participate in the defense of any suit or proceeding through counsel of its own choosing. In the event the Equipment, or any part thereof, are held to constitute such an infringement and its use enjoined, then Vendor shall, at Buyer’s option, and at Vendor’s expense, either procure for Buyer the right to continue using the Equipment, replace or modify the Equipment with a non-infringing version, or remove the Equipment and refund the purchase price. The provisions of this Section 9 shall survive expiration or termination of this Agreement.
10. General Indemnification. Vendor shall defend, indemnify and hold Buyer, and its subsidiaries or affiliates, and their trustees, officers, employees and agents, harmless from any and all loss, lawsuit, liability, damage, cost and expense (including legal fees) which may arise out of or result from: (i) claims by third persons against Buyer that the Equipment provided hereunder caused damage to property or bodily injury (including death); (ii) the willful misconduct or any acts or omissions of Vendor, its agents or employees in connection with this Agreement; (iii) any defect in the Equipment, or (iv) any breach or default in the performance of Vendor's obligations. The provisions of this Section 10 shall survive expiration or termination of this Agreement. Vendor's indemnification obligation hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Buyer.
11. FDA Recall of Equipment. If recall or modification of any of the Equipment is required by the FDA or voluntarily recommended or required by the Vendor, Vendor shall, at its sole cost and expense, immediately notify Buyer in writing of such recall or modification; remove, package, and ship to Vendor's plant the affected Equipment and at no additional charge to Buyer, replace such Equipment with Vendor Equipment which has been evaluated and accepted by Buyer as clinically comparable. All recall notices must be immediately faxed to Buyer’s Risk Management Department at: 410-614-9507.
12. FDA Compliance. Vendor shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances, and represents that it shall have obtained all licenses and permits required by law to engage in the activities necessary to perform its obligations under this Agreement. Vendor hereby represents and warrants that all Equipment provided to Buyer hereunder has appropriate documentation in conjunction with FDA regulations, and copies of the approval or clearance documentation issued to Vendor by the FDA will be provided to Buyer, upon request.
13. Confidentiality. "Confidential Information" refers to any (i) technical or design information related to the Equipment; (ii) business or financial information, including but not limited to Equipment plans, costs or prices; and (iii) any information designated by a party as confidential or proprietary. The parties shall hold in confidence any information designated by a party as Confidential Information and will exercise the same degree of care to protect it from disclosure that it uses to protect its own Confidential Information of similar importance. Each party shall only use the other party’s Confidential Information as necessary to perform its obligations hereunder and will return or destroy it at the request of the disclosing party or upon the termination or expiration of this Agreement. Confidential Information does not include information: (i) otherwise available from a third party, without any limitations on its use, distribution or disclosure; (ii) in the public domain; or (iii) known to the receiving party prior to its disclosure, as evidenced by written records. The parties hereby covenant that they shall not disclose Confidential Information to any third party without prior written authorization of the disclosing party. Vendor further agrees not to disclose or use the name of Buyer in any publication or any articles, advertising or publicity without the prior written consent of Buyer. The provisions of this Section 13 shall survive expiration or termination of this Agreement.
14. License to Software. Vendor hereby grants to Buyer a limited, nonexclusive, royalty-free license and/or sublicense to use any software and its accompanying documentation delivered with or embedded in the Equipment. Any charge for the license is included in the purchase price set forth on the Agreement.
(a) Warranty of Equipment. Vendor warrants that the Equipment provided hereunder is of clear title, free of any liens and encumbrances and free from defects in material and workmanship and will conform to its written specifications. Vendor further warrants that the Equipment is merchantable and will conform to any express warranties made by affirmation, promise, description or sample. Buyer will notify Vendor of any known or reported defect constituting a breach of the foregoing warranties. Vendor will provide Buyer, at no additional charge to Buyer, a toll free customer support telephone number available twenty-four hours per day, seven days per week to report problems with or defects in the Equipment and will make every commercially reasonable effort to immediately respond to any reports of problems with any of the Equipment.
(b) Software Warranty. In the event any Equipment are accompanied by or embedded with software, Vendor warrants that the software: (i) is free from defects in material and workmanship and will substantially conform to its written descriptions and any technical specifications and (ii) does not contain any virus, worm, timer or clock that would erase data or programming or otherwise cause the software to become inoperable. Vendor further agrees to provide Buyer, at no additional charge, any and all routine changes, updates and maintenance services intended to provide general improvements to the performance of the Equipment or as may be required for compliance with applicable government regulations.
(c) Additional Warranties. Vendor further warrants to Buyer, as follows: (i) any technical support or service will be performed in accordance with industry practices, in a professional manner by properly trained and suitably skilled personnel, (ii) Vendor is a corporation duly organized and in good standing under the laws of the jurisdiction of its incorporation, with full corporate power and authority to conduct its business in the manner contemplated by this Agreement and (iii) Vendor is not sanctioned or excluded from participating in any federally funded health care programs, as provided in Sections 1128 and 1128A of the Social Security Act, 42 U.S.C. §1320a-7a. Vendor shall notify Buyer immediately in the event it becomes sanctioned or excluded from any federally funded health care program(s). Such notification shall include the grounds for sanction or exclusion and the duration thereof.
16. Insurance. Vendor shall maintain in full force and effect, at its sole expense, policies of general liability and commercial general liability insurance in the minimum amount of Five Million Dollars ($5,000,000) for each claim for each policy year to insure Buyer, its officers, trustees, employees and agents against any claim or claims for damages resulting, directly or indirectly, from the intentional or negligent acts of Vendor in connection with the performance of its obligations under this Agreement or the defective performance of any of the Equipment. All such insurance policies shall provide that they will not be canceled without providing at least thirty (30) days prior written notice to Buyer.
17. Equipment Demonstrations. Prior to any contact with Buyer’s patients, an employee of Vendor must submit to Buyer: (i) evidence of HBV vaccination or a declination form; (ii) proof of completion of blood-borne pathogen safety training, per OSHA regulations, in effect; and (iii) proof of a negative tuberculin test.
18. Access to Books and Records. Pursuant to 42 U.S.C. 1395x(1)(I)and 42 C.F.R.§ 420.302, if the value or cost of Equipment or services rendered to Buyer by Vendor or by an organization related to Vendor is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Vendor and Buyer agree that until the expiration of four (4) years after the furnishing of such Equipment or services, Vendor and Buyer shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the "Secretary"), the Secretary's duly authorized representative, the Comptroller General, or the Comptroller General's duly authorized representative, such books, documents and records as may be necessary to certify the nature and extent of the costs of such Equipment or services.
19. Notices. All legal notices and other communications must be in writing and will be considered given upon (i) delivery by hand or (ii) one (1) day after delivery by receipted overnight delivery courier, or (iii) three (3) days after mailed by certified or registered mail, return receipt requested, with postage prepaid to the parties at the addresses set forth in the Agreement, with an additional copy to Buyer at: 733 N. Broadway, Suite 102, ATTENTION: General Counsel, Baltimore, Maryland 21205.
In the event of any recall notice issued by Vendor or the FDA, Vendor shall send such notice to Buyer, Attention: Risk Management Department, Facsimile Number 410-614-9507.
20. No Modification. This Agreement may not be modified except by a written document executed by both parties. Vendor may not assign any of its rights or obligations hereunder without the prior written consent of Buyer. The provisions of this Agreement shall be binding upon and inure to the benefit of Buyer and Vendor, their respective successors and permitted assigns. All rights, remedies and powers of Buyer are irrevocable and cumulative and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers to which it may be entitled at law or in equity. This Agreement may be executed by counterparts or duplicate originals, all of which shall be regarded as one and the same instrument.
21. Construction and Jurisdiction. This Agreement shall be governed by the laws of the State of Maryland (excepting any conflict of laws or provisions which would serve to defeat application of Maryland substantive law). Each of the parties to this Agreement hereby irrevocably and unconditionally: (i) consents to submit to the exclusive jurisdiction of the courts of Howard County, Maryland for any proceeding arising in connection with this Agreement and each such party agrees not to commence any such proceeding except in such courts, and (ii) waives any objection to the laying of venue of any such proceeding in the courts of Howard County, Maryland. If for any reason venue is not accepted in Howard County, the parties irrevocably consent as provided in this Section to the exclusive jurisdiction of the courts of Baltimore County, Maryland. EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, ITS SUCCESSSORS AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
22. Vendor Full Disclosure. Vendor shall not provide or distribute any “Gifts, Services or Consideration” of any value to any Johns Hopkins Personnel. "Gifts, Services or Consideration" includes, but is not limited to: gifts, gratuities, social entertainment offered or sponsored by the vendor, samples, consulting and research activities, vendor-sponsored travel, educational conferences, seminars, other business courtesies and discounts and any additional items or services not described in the Agreement regardless of the monetary value of such “Gifts, Services or Consideration”. Gifts include items such as pens, coffee mugs or mouse pads.
(a) This Agreement, including these Terms, constitutes the final, complete and exclusive agreement between the parties with respect to the purchase and sale of the Equipment and shall supersede all prior or contemporaneous agreements between the parties, whether written or oral, including those terms and conditions which may be included in a proposal, price quotation or order acknowledgement.
(b) If any portion of this Agreement is held invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part, will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted so as to best accomplish its intent within the limits of the applicable law.
(c) No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver.
(d) Any provisions, which, by their nature are intended to survive the termination or expiration of this Agreement, will survive its termination or expiration, including any warranties.
(e) Affirmative Action. It is the policy of Buyer to provide equal job opportunities to all people. Buyer prohibits discrimination and maintains a written Affirmative Action Plan designed to ensure equal employment opportunities based on race, color, religion, sex, national origin, and status as a qualified individual with a disability or a protected veteran. Buyer incorporates by reference into this Agreement all applicable requirements (as amended) mandated by the Office of Federal Contract Compliance Programs (“OFCCP”) of the U.S. Department of Labor for federal government contractors pursuant to Executive Order 11246, the Rehabilitation Act of 1973, Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act (“VEVRAA”). In addition, retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes any employment practice covered by OFCCP.
(f) Sunshine Act Reporting. Vendor acknowledges and agrees that prior to or simultaneously with submitting any reports pursuant to the Physician Payment Sunshine Act (the “Sunshine Act”) which pertain to Buyer, Vendor shall provide a written copy of such report to Buyer at the following address: The Johns Hopkins Health System Corporation, Attention: Betty Gibula, 3910 Keswick Road, Suite N4100, Baltimore, Maryland 21211. Such written report shall include, without limitation, the name of the individual or department to whom the transfer of value was provided and a detailed description of what was transferred. In the event that Buyer has any questions or comments in connection with such report, Buyer may contact the Vendor by telephone and/or email.
24. Conflict. THESE TERMS SHALL SUPERSEDE ANY AND ALL TERMS AND CONDITIONS SET FORTH IN VENDOR’S INVOICE OR POLICY OR ANY OTHER AGREEMENT, INCLUDING VENDOR’S PRICE QUOTATION OR PROPOSAL, AND IN THE EVENT OF ANY CONFLICT BETWEEN ANY SUCH TERMS AND CONDITIONS, THESE TERMS SHALL APPLY.
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