HDIS, Inc.
Terms & Conditions of Purchase 03/06
TERMS AND CONDITIONS OF PURCHASE
1. Acceptance and Acknowledgment. This writing is an offer by Home Delivery Incontinent Supplies, Inc., or its subsidiary identified in the applicable purchase order (“Purchaser”) to buy goods and/or services described in purchase orders from time to time submitted to the Seller (and in all specifications and data submitted to Seller therewith), subject to the terms and conditions set forth in these Terms and Conditions of Purchase. This is not an acceptance of any offer by Seller to sell; and Buyer hereby objects to any additional or different terms contained on any of Seller’s quotation, acknowledgment, invoice or other forms, or in any other correspondence from Seller. The terms of this offer, when accepted by Seller explicitly, by shipment of conforming goods or otherwise, shall constitute the entire agreement between the parties on the subject hereof, superseding all prior communications and negotiations. This offer and any agreement or sale resulting from the acceptance hereof shall be governed by and construed in accordance with the laws of the State of Missouri. This choice of venue is mandatory and not permissive in nature and is intended to preclude the possibility of litigation between Purchaser and Seller in jurisdictions other than that specified above.
2. Prices and Terms of Payment.
a. Notwithstanding the price specified in the purchase order, Seller represents that the price, charged for the items of services covered by the purchase order is the lowest price charged by Seller to Purchasers of a class similar to Purchaser in the area under conditions similar to those specified in the purchase order and complies with all applicable governmental regulations and agrees that any general price reduction made for items or services covered by this order subsequent to the date hereof will be applicable to this order. Unless otherwise agreed in writing, Purchaser shall be entitled to a discount equal to the greater of (1) prevailing discount at date of order or delivery, whichever is greater, or (2) discounts granted to Purchasers of the same class; plus in each case, applicable quantity discounts based on total quantity hereby ordered. If Purchaser is to make any payment before Purchaser’s receipt of the items, Seller grants Purchaser a security interest in the items and all proceeds thereof to secure performance of Seller’s obligations hereunder, and agrees to execute and deliver such financing statements, as Purchaser may reasonably consider necessary or appropriate to perfect its security interest.
b. Subject to the other provisions of these Terms and Conditions of Purchase, Purchaser’s standard payment terms are to pay Sellers within 45 days of Purchaser’s receipt of Seller’s invoice, unless terms more favorable to Purchaser are specified in a separate agreement. Acceptable alternative payment terms include “2%/15 days, net 45 days” or “1%/30 days, net 45 days” or other terms which are more favorable to Purchaser.
c. All invoices shall be sent to the following address for reimbursement:
ATN: Accounts Payable
Home Delivery Incontinent Supplies, Inc.
9385 Dielman Industrial Drive
Olivette, MO 63132
3. Delivery Schedule. Seller shall deliver the items, in the quantities and within the time, which is of the essence, in accordance with the specifications (as well as the sample provided to Purchaser, if any) and at the process specified in the purchase order or in any document attached thereto and referred to therein. Failure of Seller to comply with such requirement shall entitle Purchaser, in addition to any other rights or remedies, to cancel this order and be relieved of all liability for any undelivered portion. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Purchaser’s schedule. Items received in advance of Purchaser’s delivery schedule may, at Purchaser's option, be returned at Seller’s expense or be accepted and payment withheld until the scheduled delivery date.
4. Shipments and Inspection. All items shall be suitably packed, marked conspicuously with Purchaser’s purchase order number, and shipped in accordance with shipping instructions specified herein and otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Seller shall reimburse Purchaser for all expenses incurred by Purchaser as the result of improper packing, marking or routing. Seller shall mark each package with Purchaser’s purchase order number. All shipments shall be F.O.B. Destination, Freight Prepaid, unless otherwise authorized by Purchaser. Any transportation charges paid by Seller and to which Seller is entitled to reimbursement shall be added to Seller’s invoice as a separate item and the receipted freight bill shall be attached thereto. No charge shall be made by Seller for containers, crating, boxing, bundling, drayage or storage unless separately itemized in the purchase order. Each packing slip, bill of lading and invoice shall bear the applicable purchase order number. There shall be separate invoices for each shipment. Shipments sent C.O.D. without Purchaser’s written consent may not be accepted and will be at Seller’s risk. Notwithstanding any payment made, no goods are to be deemed accepted until Purchaser has had a reasonable opportunity to inspect them. Rejected merchandise may be held at Seller’s risk for a reasonable period of time and may be returned at Seller’s expense. Seller shall bear the cost of inspection of defective merchandise and rework charges, if any.
5. Amendments. Purchaser may make changes in quantities, specifications, delivery schedules and methods of shipment and packaging on any item at any time. If such changes result in an increase or decrease in cost or in the time required for performance, Seller shall promptly notify Purchaser thereof and an equitable adjustment of price or delivery schedules may be made, or Purchaser may, as its option, terminate this contract pursuant to paragraph 14 herein. Changes shall not be binding upon Purchaser unless evidenced by a purchase order change notice issued and signed by Purchaser.
6. Warranty. In addition to its standard warranty and/or service guaranty, Seller warrants that all goods supplied hereunder shall be free and clear of all liens and encumbrances, good and merchantable thereto being in the Seller; be free from any defects in design, material or workmanship and of good and merchantable quality; conform to Purchaser’s specifications or the sample approved by Purchaser, as the case may be, or be fit for the known purposes for which purchased hereunder; and comply and have been produced, processed and delivered in conformity with all applicable federal, state or other laws, administrative regulations and orders. The foregoing shall survive inspection, delivery and payment and shall run in favor of Purchaser and its customers. The foregoing shall be in addition to any other warranties, express or implied, or by operation of law, given by Seller to Purchaser.
7. General Indemnity. Seller shall indemnify and hold harmless Purchaser, its successors and assigns, its employees, and its customers whether direct or indirect, against any and all liability, losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur in connection with the sale of goods or services hereunder as a result of any claim of negligence, breach of warranty or strict liability in tort, except to the extent that the same is caused by the negligence of Purchaser, its successors and assignees and/or its customers. If and to the extent that the Purchaser’s negligence is found to have caused injury to any third party, Purchaser shall indemnify Seller against any liability for such injury.
8. Indemnity for Infringement. Seller will defend, indemnify and hold harmless Purchaser, its successors and assigns, as well as their customers and users of any goods purchased hereunder, from and against any and all claims, demands, liabilities, causes of action, suits, damages, costs and expenses (including reasonable attorneys’ fees) on account of or based upon claims for actual or alleged infringement of the proprietary rights of any third party resulting from the manufacture, use or sale of any such goods. In case any action or proceeding shall be brought against such parties entitled to indemnification by reason of any of the foregoing, Seller upon notice shall at the expense of Seller resist or defend such action or proceeding and employ counsel therefore reasonably satisfactory to Purchaser. If the use or sale of any such goods is enjoined as a result of a suit alleging infringement, Seller shall, at its own expense and at Purchaser’s request, either replace all such goods with equivalent items (likewise covered by this indemnity) or obtain for the parties entitled to indemnification the right to use and sell such goods.
9. Supremacy. These terms and conditions for the purchase order govern in event of conflict with any terms of Seller's proposal, and are not subject to change by reason of any written or verbal statement by Seller, or by any terms stated in Seller's acknowledgment or acceptance unless same be accepted in a separate writing by Buyer. In the event of conflicting supremacy clauses, this clause shall govern.
10. Remedies. If this contract is terminated due to Seller's failure to deliver goods and articles within the time specified; or by reason of Seller's failure to otherwise perform in accordance with the instructions, terms, and conditions contained herein (except where such failure is due to causes beyond Seller's control and without its fault or negligence), Buyer may procure, upon such terms and in such manner as Buyer deems appropriate, goods and articles similar to those so terminated, and Seller shall be liable to Buyer for any excess costs for such goods and articles. The remedy herein reserved is not exclusive but is in addition to any other rights and remedies provided by law or under this contract. No waiver of a breach of such provision, or other provisions in this contract, shall stop Buyer from pursuing its rights and remedies against Seller for any other breach of this contract.
11. Non-Assignable. This order shall not be assigned, in whole or in part, without Purchaser’s written consent and shall be binding upon the successors and assigns of the parties hereto.
12. Survival. The obligations of Seller hereunder shall survive performance of the contract by Seller or contract termination.
13. Severability. If any term, provision, or condition of this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions herein shall remain in full force and effect and shall in no way be affected, impaired, or invalidated as a result of such decision.
14. Cancellation by Purchaser. Purchaser shall have the right to cancel the purchase order without cause and in such event Purchaser’s liability for cancellation shall be limited to Seller’s actual cost for work and materials, applicable solely to this order, which shall have been expended before Seller has received notice of cancellation.
15. Attorneys’ Fees in Case of Breach by Seller. Seller shall pay Purchaser’s attorneys’ fees and other legal costs reasonably incurred by Purchaser to enforce any purchaser order hereunder, or any of the terms hereof, or to recover any damages due Purchaser hereunder.
16. Occupational Safety and Health Act & Fair Labor Standards Act. The Seller agrees to comply with the “Fair Labor Standards Act” of 1938, as amended, and with the provisions of the Occupational Safety and Health Act of 1970, as amended, and certifies that all items furnished hereunder will conform to and comply with said standards and regulations. Seller further agrees to indemnify and hold harmless Purchaser for all damages assessed against Purchaser as a result of Seller’s failure to comply with the Acts and the standards issued hereunder and for the failure of the items furnished hereunder to so comply.
17. Equal Employment. It is the policy of Purchaser that all sellers, contractors and others doing business with the corporation adhere to the principles of equal employment opportunities and that they take affirmative action to ensure positive progress in such adherence.
18. Compliance with Applicable Laws. Seller and its subcontractors shall at all times comply with all Applicable Laws. “Applicable Laws” shall include all federal, state and local laws, whether in the form of statutes, regulations, rules, standards, guidelines, judicial or administrative decisions, or any other federal, state or local action having the effect of law, including, without limitation those regarding (a) Medicare or Medicaid, (b) state and federal health care fraud and abuse laws, (c) nondiscrimination and affirmative action requirements and the requirements of the Executive Order Program as they pertain to Purchaser's operations, (d) Food and Drug Administration requirements, (e) confidentiality laws and the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”). Seller further agrees to prevent loss, alteration or unauthorized access to Purchaser's health information, including such health information embodied in computerized files and records accessed, maintained or retained by the parties, and in the event that, in Purchaser’s opinion, Purchaser’s or Seller’s compliance with Applicable Laws requires the parties to modify this Agreement or enter into a supplemental agreement hereto (including, without limitation, a “Business Associate Agreement” as may be defined and required by HIPAA), Seller shall agree to modify this Agreement or enter into such a supplemental agreement as is necessary in Purchaser’s opinion to maintain either party’s compliance with Applicable Laws. In addition, Seller further represents, warrants and agrees that all products acquired hereunder shall comply with all Applicable Laws that may impact the functionality or specifications of the products.
19. Drawings, Specifications and Technical Information. All drawings and artwork (via hard copy and electronic/digital files), specifications, printing plates, photographs, and other engineering and manufacturing information supplied by Purchaser or developed for Purchaser by Seller shall remain or become Purchaser’s property and shall be treated as confidential information and shall be returned or given to Purchaser upon completion of the order or demand. Any information which Seller may disclose to Purchaser with respect to the design, manufacture, sale or use of the items covered hereunder shall be deemed to have been disclosed as part of the consideration for this contract and Seller shall not assert any claim (other than a claim for patent infringement) against Purchaser by reason of Purchaser’s use thereof.
20. Advertising/Promotions. Seller shall not, without first obtaining the written consent of Purchaser, advertise or publish in any manner the fact that Seller has contracted to furnish Purchaser the items and/or services subject to the purchase order. If such consent is granted by Purchaser, in no event shall any demonstration, promotional materials, or publication constitute an endorsement, representation or warranty, express or implied, by Purchaser, with respect to the applicable items or services. In the event of any dispute between the parties, Purchaser’s consent to such advertising or promotional materials, if given, shall not be deemed an admission or declaration against the interest of Purchaser.
* * * * * * * * * * * *
Any questions or comments regarding this document should be directed to the Purchasing Director of Home Delivery Incontinent Supplies, Inc., at 314-997-8771.
Posted Address: http://www.hdis.com/purchasing/purchasingterms&conditions.pdf