FMOLHS PURCHASE ORDER TERMS AND CONDITIONS
Definitions:
(1) Vendor means a person or organization from whom Franciscan Missionaries of Our Lady Health System, Inc.
and/or its affiliates (collectively, "FMOLHS") is purchasing Products and/or Services.
(2) Buyer means FMOLHS.
Standard Terms and Conditions: Vendor's commencement of Services or shipment of Products constitutes Vendor's acceptance of this Purchase Order ("PO") and these Terms and Conditions, which are incorporated by reference into the PO, compliance with which is an express condition of Buyer's obligation to pay. These terms shall apply to all Buyer orders, whether such order is communicated by PO, Electronic Data Interchange, internet e-commerce, facsimile, orally, or any other method, or whether reference is made to this document. If Vendor is not in agreement with the PO pricing or these Terms and Conditions, Vendor must notify Buyer in writing prior to shipment of Product or commencement of Services. No acceptance shall be effective which varies these Terms and Conditions or which proposes additional terms.
Pricing: This PO must not be filled at a price higher than shown on the face of the PO. If no price is set forth on the front of the PO, the Products or Services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under this PO will not be billed at a higher price than last quoted or charged without Buyer's specific written authorization. Buyer will be entitled at all times to set off any amount owed at any time by Vendor or any of its affiliates to Buyer against any amount payable at any time by Buyer in connection with this PO. No extra charges of any kind will be allowed unless specifically agreed to in writing by Buyer. All applicable taxes arising out of transactions contemplated by the PO will be borne by Vendor except as otherwise specified by the parties in writing. If Vendor reduces its prices for such Products and/or Services during the term of this PO, Vendor shall correspondingly reduce the prices of Products and/or Services sold thereafter to Buyer under this PO.
Shipment and Delivery: Unless otherwise specified on the PO, all shipments of the Vendor's Products and Services direct from Vendor shall be FOB Destination, with all costs of shipping, insurance, and handling paid by Vendor. The destination is specified on the face of the PO as the 'SHIP TO' address, with delivery to be made during normal business hours, Monday through Friday, unless otherwise specified. All other fees or costs, including handling, pick-up fees, taxes, minimum order fees or overhead allocations are not permitted and will not be paid by Buyer.
Hazardous and Regulated Material: Vendor shall package, label, transport and ship hazardous materials, items containing hazardous materials, and any other regulated materials in accordance with all applicable federal, state, and local laws, rules, ordinances and regulations, and shall furnish to Buyer any appropriate documentation or Material Safety Data Sheets prior to each shipment of same. Prior to each shipment of any hazardous or regulated materials, Vendor shall notify Buyer of the nature of such shipment by such means of communication as will allow for the proper preparation for acceptance of the delivery and shall identify same on all shipping documents. Vendor shall be solely responsible for notifying carriers and other handlers of any risks inherent in any such shipments.
Inspection and/or Rejection: All Products and Services shall be subject to a reasonable inspection and approval upon receipt by Buyer. This provision shall in no way limit the remedies available to Buyer at equity or law.
(1) Products. In the event that Buyer, after such inspection, rejects Vendor's Products due to the discovery of nonconforming, broken or damaged Products or the packages containing the Products, Buyer shall have the right, in its sole discretion, to return all or any portion of the damaged Products and receive either a full credit of the purchase price or a timely replacement of the damaged Products. All shipping, transportation, handling and insurance costs related to the rejected and replacement Products shall be paid by the Vendor.
(2) Services. Buyer shall have a minimum of thirty (30) days after completion of all Services to inspect and/or evaluate the Services provided and reject any unsatisfactory Services.
Payment Terms: Unless a longer period is specified on the PO, payment for the Products and Services is due within sixty (60) days of Buyer's receipt of Vendor's complete invoice. All invoices must include the price specified on the face of the PO and the applicable PO number to be processed for payment. Vendor shall itemize all charges for the Products and/or Services on the invoice. All invoices shall be sent to Buyer electronically at: apinvoice@fmolhs.org.
(1) Invoice Dispute. In the event that Buyer reasonably disputes any expense amount which appears on an invoice issued by Vendor, Buyer shall not be required to pay that portion of said amount which Buyer reasonably disputes until the dispute is resolved. Such nonpayment by Buyer shall not constitute a breach of Buyer's obligations of payment to Vendor and the parties shall work together in good faith to resolve the dispute in a timely manner.
(2) Prompt-Pay Discount. Buyer may be entitled to a prompt-pay discount if specified on the PO. If applicable, Buyer may automatically apply the applicable prompt-pay discount to the payment amount.
(3) Decrease in Pricing. In the event of any industry-wide or Vendor decrease in Vendor's published pricing, Vendor will reduce the price of Products and Services by the same percentage reduction as such industry-wide or Vendor price decrease.
(4) Cancellation. Buyer reserves the right prior to shipment of Product or performance of Services, to cancel the PO in its entirety or in part by verbal notice followed by written confirmation.
Warranties: For all Products and Services provided pursuant to the PO, Vendor warrants to Buyer, its successors and users of the Products and Services as follows:
(1) all Products will conform with the Buyer documentation and PO description, will be of good material and workmanship, will be free from defects in material and workmanship and will be merchantable and fit for the purpose intended;
(2) all Services shall be rendered in a timely and reliable manner by qualified personnel and at a generally recognized professional level of quality in Vendor's industry;
(3) use of the Products and Services shall not unlawfully infringe upon the copyright, patent or other proprietary rights of others;
(4) the Products are free of liens and encumbrances and Vendor has the legal right to transfer title of the Products;
(5) the Products shall have been properly stored, labeled, handled, crated and shipped by Vendor;
(6) no slave, prisoner or any other form of forced or involuntary labor is used in the supply of Products and Services; and
(7) the Products and Services conform to applicable federal and state laws, rules, regulations and standards, including any applicable standards of the FDA, CMS and the Joint Commission.
All of the warranties referenced or set forth in this Section shall be in addition to all other warranties which may be prescribed by law and all other remedies available at law or in equity.
Recalls: In the event of a recall or Food and Drug Administration-initiated action with respect to any Products (or a component of same) supplied to Buyer hereunder, Vendor shall immediately notify Buyer in writing. In such event and notwithstanding anything to the contrary contained in this PO, Buyer shall have the right, in its sole discretion, to return any Products Buyer believes should be the subject of a refund from Vendor; Vendor will, in turn, arrange for return of such Products at its sole expense and shall provide such refund to Buyer within thirty (30) days of receiving Buyer's notice of refund.
Insurance: Vendor represents and warrants that it maintains insurance coverage in such amounts, covering such risks and liabilities, and with such deductibles as are consistent with normal industry practice; provided, however, that if any Vendor personnel must enter the property of Buyer in the course of providing Products or Services pursuant to this PO, Vendor shall maintain workers' compensation insurance at or above the minimum required by law, and automobile liability, comprehensive general liability in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate, and professional liability insurance in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate. Vendor shall furnish certificates of insurance to Buyer upon request.
Statutory Employer for Workers' Compensation Issues. The following provision will apply in the event the Vendor has any personnel on-site at a Buyer facility pursuant to the provision of Products and/or Services. Solely for the purpose of this Agreement, Buyer and Vendor jointly agree, stipulate and recognize that Buyer shall be the statutory employer of Vendor's employees and/or all employees of any subcontractor hired or retained in any manner by Vendor and/or any other person for whom Vendor may be held responsible while any of the above described persons are performing any work or providing any services under the PO. Buyer and Vendor further stipulate, agree and recognize that all work performed under the PO shall be considered part of Buyer's trade, business or occupation and shall be specifically considered an integral part of or essential to the ability of Buyer to generate its goods, products or services. Buyer and Vendor further stipulate, agree and recognize that the services or work provided by any subcontractor or other person retained by Vendor for the performance of any work or service under the PO shall be contemplated by and included in this provision.
Discounts; Rebates; Warranties. If this Agreement involves warranties under 42 C.F.R. Section 1001.952(g) or discounts or rebates under 42 C.F.R. Section 1001.952(h) (the Anti-Kickback Statute discount safe harbor regulations) or other applicable laws and regulations, in addition to the invoicing requirements set forth in this PO, Vendor must (i) promptly provide reasonable written notice to Buyer of Buyer's obligation to report such warranties, discounts or rebates and provide to Buyer any information required under 42 C.F.R. Section 1001.052(g) or 42 CFR 1001.952(h), as applicable, and (ii) fully and accurately reflect in cost reports or other submissions to federal healthcare programs all such discounts and, upon request by Buyer, the Secretary of Health and Human Services or a state agency, make available information concerning such discounts.
Fair Market Value; No Inducements: Each party represents that the compensation provided under this PO represents the fair market value of the Products and/or Services to be performed, has been negotiated in an arm's-length transaction, and has not been determined in any manner with regard to any implicit or explicit agreement to provide favorable procurement decisions with regard to the Products and/or Services, or to the value or volume of any business or referrals generated between the parties.
Access to Records: Vendor agrees that if the PO is determined to be a contract or subcontract within the meaning of the Medicare statutes and regulations, the Vendor will allow, until the expiration of four years after the furnishing of the Products or Services, the Secretary of the Department of Health and Human Services and the Comptroller General or any of their duly authorized representatives, access to the contract, and any books, documents and records necessary to certify the nature and extent of costs incurred by the Buyer.
Exclusion from Governmental Programs: Buyer has issued the PO with the understanding that Vendor is not excluded from participating in the Medicare or Medicaid program and not ineligible to participate in any governmental program. Vendor shall immediately notify Buyer in the event Vendor becomes debarred or suspended from any governmental program.
Deficit Reduction Act--Medicaid Requirements: Buyer is a recipient of Medicaid funds and subject to the Deficit Reduction Act. Vendor will cooperate with Buyer to detect and prevent waste, fraud and abuse and protect whistleblowers.
Protection of Confidential Information: Buyer may disclose information regarding Buyer, its business or its patients ("Confidential Information") to Vendor in connection with the Products or Services. Buyer shall retain title to all such Confidential Information and Vendor agrees not disclose to third parties any of Buyer's Confidential Information or use such information itself for any purpose other than providing the Products and Services, without Buyer's prior written approval. Vendor shall not use Buyer's name in any advertising or publicity without Buyer's prior written approval.
HIPAA Compliance: To the extent applicable, the parties shall abide by all state and federal regulations concerning the confidentiality of patient medical records, including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d-d8 ("HIPAA"); and the requirements of any regulation promulgated thereunder including, without limitation, the federal privacy and security regulations and standards as contained in 45 C.F.R. Section 142. The parties agree to execute additional mutually agreed upon documents as required under HIPAA rules and regulations to assure the safeguarding of protected health information. In the event such documentation is not agreed upon and executed, either party may terminate this Agreement without penalty by providing written notice to the other party.
Vendor Code of Conduct: When conducting any business activities with Buyer, Vendor agrees to comply with the FMOLHS Vendor Access and Interaction Policy, which will be made available to Vendor upon request.
Vendor Credentialing: Vendor expressly acknowledges and agrees that as a condition of access to Buyer's facilities, Vendor and its personnel shall, at Vendor's sole cost, comply with all Buyer's requirements for on-site Vendor personnel, including any third party vendor credentialing services. No Vendor personnel will be given access to any Buyer facility absent successful completion of Buyer's vendor credentialing program and continued strict compliance with Buyer's rules, standards, policies and procedures (e.g., immunization policies, identification requirements, appointment requirements, etc.).
Incorporation of FEMA Clauses Required for Federal Reimbursement. For any PO placed by Buyer for which Buyer is eligible to seek reimbursement or payment with federal funds, all applicable clauses described in Appendix II to the Uniform Rules (Contract Provisions for Non-Federal Entity Contracts Under Federal Awards) under 2 C.F.R. § 200.326, and those additional contractual clauses required or recommended by FEMA in its Contract Provisions Template publication (https://www.fema.gov/sites/default/files/2020-07/fema_pdat_contract-provisions-template.pdf) ("FEMA Clauses") are hereby incorporated by reference. In the event of any conflict or inconsistency between a provision in these Terms and Conditions and a FEMA Clause, the terms of the FEMA Clause shall prevail to the extent necessary to qualify Buyer for federal reimbursement or payment.
Compliance with laws and regulations: Vendor represents and warrants that it is in compliance with and all Products and/or Services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Vendor shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any PO. Vendor shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
Term: Notwithstanding anything the contrary in the PO, FMOLHS shall not be obligated to any term longer than two (2) years. If the PO contains a term longer than two (2) years, FMOLHS shall have the right to terminate the PO at any time, for any or no cause, upon thirty (30) days' written notice to Vendor.
Miscellaneous: The relationship between the parties is that of an independent contractor, and neither the Vendor, nor the Vendor's agents or employees, shall be deemed to be agents or employees of Buyer. Vendor remains responsible for the performance of any subcontractors and the acts or omissions of Vendor's subcontractors shall be deemed to be the acts or omissions of Vendor. Assignment of this PO or any interest in it or any payment due or to become due under it, without the written consent of Buyer, will be void. An assignment will be deemed to include not only a transfer of this PO or such interest or payment to another party but also a change in control of Vendor, whether by transfer of stock or assets, merger, consolidation, or otherwise. These Terms and Conditions shall be governed by and construed in accordance with the laws of the state where the Products are delivered or Services are performed, as specified on the face of the PO. A party's failure to exercise any right, power or privilege under this PO shall not be construed as a waiver of that party's present or future right to do so. Nothing contained in this PO shall preclude Buyer from pursuing any other remedies available at law or in equity.
These Terms and Conditions may be modified only pursuant to a written instrument signed by authorized representatives of both parties. The invalidity in whole or in part of any provision of this PO shall not affect the validity of other provisions. To the extent that Vendor utilizes terms and conditions of its own in its business, irrespective of whether or not those terms are set forth in any invoice or other Vendor document provided to Buyer or available on Vendor's website in "click-through" format or otherwise, such terms and conditions shall not apply to Buyer. Any conflict between/among this PO and any other agreement between the parties shall be resolved according to the following order of precedence: Business Associate Agreement, any mutually executed agreement between the parties, and this PO.