PURCHASE ORDER AGREEMENT – TERMS AND CONDITIONS
The following Tri-City Healthcare District Standard Purchasing Terms and Conditions (the “Standard Purchasing Terms and Conditions”) apply to all purchases of goods or services, including leases or licenses, and also including software licenses (all collectively referred to herein as “Purchase(s)”) made by Tri-City Healthcare District, a public local hospital district, in the city of Vista, California (referred to in these Standard Terms as “Hospital”) from vendors (referred to in these Standard Terms as a “Vendor” or “Vendors”). These Standard Purchasing Terms and Conditions are incorporated into each and every purchase order issued by Hospital by this reference.
(A) Invoices. Invoice must show contract number, itemized expenses, service dates, vendor name, address and telephone number. Submit invoices in duplicate to the following address:
TRI-CITY HEALTHCARE DISTRICT
Attn: Accounts Payable
4002 Vista Way, CA 92056
(B) Shipping. If shipping charges contractually apply, Bill 3rd Party via FedEx account # 3025-9258-6. If combined shipping weight exceeds 150lbs, call 888-457-5851 for carrier instructions prior to shipping. Insert our PO# in recipient 2nd address field. If shipping is included as a Purchase Order line, please disregard 3rd party instructions.
2. Acceptance and Modification of Terms.
Vendor’s commencement of work on such goods or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of purchaser’s offer to purchase contained in this Agreement and purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms of the offer contained here. Any proposal for additional or different terms or any attempt by vendor to vary in any degree any of the terms of this offer in vendor’s acceptance is hereby objected to and rejected but such proposal shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price, or delivery schedule of the goods but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by the Vendor without said additional or different terms.
The materials, supplies or services covered by this order shall be furnished by Vendor subject to all the terms and conditions set forth in this order including the following, which Vendor, in accepting this order, agrees to be bound by and to comply with in all particulars. Written acceptance or shipment of all or any portion of the materials or supplies, or the performance of all or any portion of the services, covered by this order shall constitute unqualified acceptance of all its terms and conditions. The terms of any proposal referred to in this order are included and made a part of the order only to the extent it specifies the materials, supplies, or services ordered, the price therefore, and the delivery thereof, and then only to the extent that such terms are consistent with the terms and conditions of this order.
The services, materials and supplies furnished shall be exactly as specified in this order free from all defects in Vendor’s performance, design, workmanship and materials, and, except as otherwise provided in this order, shall be subject to inspection and test by Hospital at all times and places. If, prior to final acceptance, any services and any materials and supplies furnished therewith are found to be incomplete, or not as specified, Hospital may reject them, require Vendor to correct them without charge, or require delivery of such materials, supplies, or services at a reduction in price which is equitable under the circumstances. If Vendor is unable or refuses to correct such items within a time deemed reasonable by Hospital, Hospital may terminate the order in whole or in part. Vendor shall bear all risks as to rejected services and, in addition to any costs for which Vendor may become liable to Hospital under other provisions of this order, shall reimburse Hospital for all transportation costs, other related costs incurred, or payments to Vendor in accordance with the terms of this order for unaccepted services and materials and supplies incidental thereto. Notwithstanding final acceptance and payment, Vendor shall be liable for latent defects, fraud or such gross mistakes as amount to fraud.
Hospital may make changes within the general scope of this order in drawings and specifications for specially manufactured supplies, place of delivery, method of shipment or packing of the order by giving notice to Vendor and subsequently confirming such changes in writing. If such changes affect the cost of or the time required for performance of this order, an equitable adjustment in the price or delivery or both shall be made. No change by Vendor shall be allowed without written approval of Hospital.
Hospital may, by written notice stating the extent and effective date, cancel and/or terminate this order for convenience or without cause, in whole or in part, at any time. Hospital shall pay Vendor as full compensation for performance until such termination the unit or pro rata order price for the performed and accepted portion; and a reasonable amount, not otherwise recoverable from other sources by Vendor as approved by Hospital, with respect to the unperformed or unaccepted portion of this order, provided compensation hereunder shall in no event exceed the total order price.
(A) The rights and remedies of Hospital provided in this clause 5. Termination shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.
7. Liability for Hospital – Furnished Property.
Vendor assumes complete liability for any tooling, articles or material furnished by Hospital to Vendor in connection with this order and Vendor agrees to pay for all such tooling, articles or material damaged or spoiled by it or not otherwise accounted for to Hospital’s satisfaction. The furnishing to Vendor of any tooling, articles, or material in connection with this order shall not, unless otherwise expressly provided, be construed to vest title thereto in Vendor.
Title to the material and supplies purchased hereunder shall pass directly from Vendor to Hospital at the f.o.b. point shown, or as otherwise specified in this order, subject to the right of Hospital to reject upon inspection.
9.Payment, Extra Charges, Drafts.
Vendor shall be paid, upon submission of acceptable invoices, for materials and supplies delivered and accepted or services rendered and accepted within sixty (60) days. Hospital will not pay penalty fees including but not limited to late fees, interest, and liquidated damages. Hospital will not pay cartage, shipping, packaging or boxing expenses, unless specified in this order. Drafts will not be honored. Invoices must be accompanied by shipping documents or photocopies of such, if transportation is payable and charged as a separate item.
10. Confidential Information.
Each party will maintain in confidence all confidential information disclosed to it by the other party. The Receiving Party will protect the disclosing party’s confidential information with the same standard of care that the receiving party uses to protect its own confidential information, but in no event less than a reasonable degree of care. “Confidential Information” means, any confidential or proprietary information of either party, whether in graphic, written, oral, or electronic form, including any records or data related to Hospital’s business or patients. Notwithstanding the foregoing, there will be no exception to these confidentiality obligations pursuant to Health Insurance Portability and Accountability Act of 1996 and its subsequent revisions and regulations, for any personally-identifiable patient information that Vendor may receive or be exposed to during the course of performance of this Purchase Order; and all such information will be deemed Hospital’s confidential information. Notwithstanding any other provision of this Agreement to the contrary, Hospital shall have the right to disclose pricing and other terms of this Agreement to Hospital’s third party payer sources, as well as its attorneys, accountants, group purchasing organization and other third parties retained by Tri-City Health District (collectively “TCHD’s Consultants”) without the consent of Vendor (in writing or otherwise) provided any such TCHD’s Consultants agree to the same level of confidentiality set forth in this Agreement.
Goods may be returned by Hospital in original packaging at any time within thirty (30) days of receipt, and Hospital will receive a full refund or credit.
12. Character of Services.
Vendor, as an independent contractor, shall furnish all equipment, personnel and material sufficient to provide the services expeditiously and efficiently during as many hours per shift and shifts per week and at such locations as the Hospital may so require and designate.
13. Forced, Convict, and Indentured Labor.
(A) By accepting this order, Vendor hereby certifies that no foreign-made equipment, materials, or supplies furnished to the Hospital pursuant to this order will be produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction.
(B) Any Vendor contracting with the Hospital who knew or should have known that the foreign-made equipment, materials, or supplies furnished to the Hospital were produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction, when entering into a contract pursuant to the above, may have any or all of the following sanctions imposed:
i. The contract under which the prohibited equipment, materials, or supplies were provided may be voided at the option of the Hospital.
ii. Vendor may be removed from consideration for Hospital contracts for a period not to exceed 360 days.
(A) General. Vendor shall defend, indemnify, and hold harmless Hospital, its officers, employees, and agents, from and against all losses, expenses (including attorneys’ fees), damages, and liabilities of any kind resulting from or arising out of this Agreement and/or Vendor’s performance hereunder, provided such losses, expenses, damages and liabilities are due or claimed to be due to the negligent or willful acts or omissions of Vendor, its officers, employees, agents, subcontractors, or anyone directly or indirectly employed by them, or any person or persons under Vendor’s direction and control.
(B) Proprietary Rights. Vendor shall indemnify, defend, and hold harmless Hospital, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to attorneys’ fees) resulting from any judgment or proceeding in which it is determined, or any settlement agreement arising out of the allegation, that Vendor’s furnishing or supplying Hospital with parts, goods, components, programs, practices, or methods under this order or Hospital’s use of such parts, goods, components, programs, practices, or methods supplied by Vendor under this order constitutes an infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party. The foregoing shall not apply unless Hospital has informed Vendor as soon as practicable of the suit or action alleging such infringement. Vendor shall not settle such suit or action without the consent of Hospital. Hospital retains the right to participate in the defense against any such suit or action.
(C) Products. Vendor shall fully indemnify, defend, and hold harmless Hospital from and against any and all claim, action, and liability, for injury, death, and property damage, arising out of the dispensing or use of any of Vendor’s product provided under authorized Hospital orders. In addition to the liability imposed by law on the Vendor for damage or injury (including death) to persons or property by reason of the negligence, willful acts or omissions, or strict liability of the Vendor or his agents, which liability is not impaired or otherwise affected hereby, the Vendor hereby assumes liability for and agrees to save Hospital harmless and indemnify it from every expense, liability or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered through any act or omission of the Vendor. The Hospital agrees to provide Vendor with prompt notice of any such claims and to permit Vendor to defend any claim or suit, and that it will cooperate fully in such defense.
15. Declared Valuation of Shipments.
Except as otherwise provided on the face of this order, all shipments by Vendor under this order for Hospital’s account shall be made at the maximum declared value applicable to the lowest transportation rate or classification and the bill of lading shall so note.
16. Warranties and Representations of Vendor.
Vendor warrants and represents the following to Hospital:
(A) All goods will be of merchantable quality and fit for the purpose intended;
(B) All goods provided will operate to manufacturer’s specification and in accordance with the manufacturer’s operating criteria.
(C) Its employees have the requisite skill, training and qualifications necessary to perform the services identified in this Agreement and Purchase Order. Services will be performed in accordance with the terms of these Standard Purchasing Terms and Conditions, the applicable agreement and purchase order and in accordance with generally accepted industry standards; and
(D) Vendor and its employees providing services on the campus of a Tri-City Health District Facility, have not been listed by any federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in federal and/or state programs; or been convicted of any crime relating to any federal and/or state program. Vendor agrees to immediately notify Hospital in writing in the event Vendor is listed by a federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in any federal and/or state programs or if Vendor is convicted of any crime relating to any such program.
(E) Vendor’s goods and services will not violate or infringe upon the rights of third parties, including but not limited to, property, contractual, employment, trade secrets, proprietary information and non-disclosure rights, trademark, trade name, copyright or patent rights.
(F) Vendor is duly organized, validly existing and in good standing under the laws of its state of formation or organization; is duly qualified and in good standing as a foreign organization in every state in which the character of its business requires such qualifications; and has the full power to own its property and to carry on its business as it is now being conducted.
(G) Goods provided under the agreement and applicable order form was not manufactured using any form of child labor or forced labor prohibited by the International Labor Organization Conventions.
(H) Packaging shall clearly indicates whether goods contain or do not contain PVC, DEHP, latex, and/or mercury.
(I) Goods to be used in diagnosis or treatment of medical conditions have been approved by the United States Food and Drug Administration or have an appropriate exemption from the United States Food and Drug Administration subject and pursuant to an investigation protocol approved by Hospital.
17. Assignment and Subcontracting.
This order is assignable by Hospital. Except as to any payment due hereunder, this order may not be assigned or subcontracted by Vendor without written approval of Hospital and any such attempts shall be void. In case such consent is given, it shall not relieve Vendor from any of the obligations of this Agreement and any transferee or subcontractor shall be considered the agent of Vendor and, as between the parties hereto, Vendor shall be and remain liable as if no such transfer or subcontracting had been made.
18. Equal Opportunity Affirmative Action.
Vendor shall not maintain or provide racially segregated facilities for employees at any establishment under its control. Vendor agrees to adhere to the requirements set forth in Executive Orders 11246 and 11375, and with respect to activities occurring in the State of California, to the California Fair Employment and Housing Act (Government Code section 12900 et seq.). Expressly, Vendor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, ancestry, medical condition (as defined by California Code section 12925f]), marital status, age, physical and mental handicap in regard to any position for which the employee or applicant for employment is qualified, or because he or she is a disabled veteran or veteran of the Vietnam era. Vendor shall further specifically undertake affirmative action regarding the hiring, promotion and treatment of minority group persons, women, the handicapped, and disabled veterans and veterans of the Vietnam era. Vendor shall communicate this policy in both English and Spanish to all persons concerned within its company, with outside recruiting services, and the minority community at large. Vendor shall provide the Hospital on request a breakdown of its labor force by groups, specifying the above characteristics within job categories, and shall discuss with the Hospital its policies and practices relating to its affirmative action programs.
19. Work on Hospital or Government Premises.
If Vendor’s work under this order involves performance by Vendor at Hospital or United States Government owned sites or facilities, the following provisions shall apply:
(A) Liens. Vendor agrees that at any time upon request of Hospital it will submit a sworn statement setting forth the work performed or material furnished by subcontractors, suppliers and the amount due and to become due to each, and that before the final payment called for hereunder, will if requested, submit to Hospital a complete set of vouchers showing what payments have been made for materials and labor used in connection with the work called for hereunder.
(B) Cleaning Up. Vendor shall at all times keep Hospital premises where the work is performed and adjoining premises free from accumulations of waste material or rubbish caused by its employees or work of any of its subcontractors, and, at the completion of the work; shall remove all rubbish from and about the building and all its and its subcontractors’ tools, scaffolding, and surplus materials, and shall leave the work “broom clean” or its equivalent, unless more exactly specified. In case of dispute between Vendor and the subcontractors employed on or about the structure or structures upon which the work is to be done, as herein provided, as to responsibility for the removal of the rubbish, or in case the same be not promptly removed as herein required, Hospital may remove the rubbish and charge the cost to Vendor.
(C) Employees. Vendor shall not employ on the work any unfit person or anyone not skilled in the work assigned to him or her and shall devote only its best-qualified personnel to work under this order. Should Hospital deem anyone employed on the work incompetent or unfit for his or her duties and so inform Vendor, Vendor shall immediately remove such person from work under this order and he or she shall not again, without written permission of Hospital, be assigned to work under this order.
It is understood that if employees of Hospital shall perform any acts for the purpose of discharging the responsibility undertaken by the Vendor in this Article 15, whether requested to perform such acts by the Vendor or not, such employees of the Hospital while performing such acts shall be considered the agents and servants of the Vendor subject to the exclusive control of the Vendor.
(D) Safety, Health and Fire Protection. Vendor shall take all reasonable precautions in the performance of the work under this order to protect the health and safety of employees and members of the public and to minimize danger from all hazards to life and property, and shall comply with all health, safety, and fire protection regulations and requirements (including reporting requirements) of Hospital. In the event that Vendor fails to comply with said regulations or requirements of Hospital, Hospital may, without prejudice to any other legal or contractual rights of Hospital, issue an order stopping all or any part of the work; thereafter a start order for resumption of work may be issued at the discretion of the Hospital. Vendor shall make no claim for extension of time or for compensation or damages by reason of or in connection with such work stoppage. The safety of all persons employed by Vendor and its subcontractors on Hospital premises, or any other person who enters upon Hospital premises for reasons relating to this order, shall be the sole responsibility of Vendor. Vendor shall at all times maintain good order among its employees and shall not employ on the work any unfit person or anyone not skilled in the work assigned to him or her. Vendor shall confine its employees and all other persons who come onto Hospital’s premises at Vendor’s request or for reasons relating to this order and its equipment to that portion of Hospital’s premises where the work under this order is to be performed or to roads leading to and from such work sites, and to any other area which Hospital may permit Vendor to use. Vendor shall take all reasonable measures and precautions at all times to prevent injuries to or the death of any of its employees or any other person who enters upon Hospital premises. Such measures and precautions shall include, but shall not be limited to, all safeguards and warnings necessary to protect workers and others against any conditions on Owner’s premises which could be dangerous and to prevent accidents of any kind whenever work is being performed in proximity to any moving or operating machinery, equipment or facilities, whether such machinery, equipment or facilities are the property of or are being operated by, the Vendor, its subcontractors, the Hospital or other persons. To the extent compliance is required, Vendor shall comply with all Hospital safety rules and regulations when on Hospital premises.
Vendor, at its sole cost and expense, shall insure its activities in connection with the work under this order and obtain, keep in force, and maintain insurance in the amounts of One Million Dollars ($1,000,000) per claim and Three Million Dollars ($3,000,000) Aggregate at all times. If the above insurance is written on a claims-made form, it shall continue for three years following termination of this Agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the effective date of this Agreement. Vendor shall comply with all other State and Federal insurance requirements for the type of work performed.
21. Permits and Credentialing.
Vendor agrees to procure all necessary permits or licenses or credentialing and abide by all applicable laws, regulations and ordinances of the United States and of the state, territory and political subdivision in which the work under this order is performed. Vendor shall be liable for all damages and shall indemnify and save Hospital harmless from and against all damages and liability which may arise out of failure of Vendor to secure and pay for any such licenses or permits or to comply fully with any and all applicable laws, ordinances and regulations.
Vendor and its subcontractors, if any, shall cooperate with Hospital and other vendors and contractors on the premises and shall so carry on their work that other cooperating vendors and contractors shall not be hindered, delayed or interfered with in the progress of their work, and so that all of such work shall be a finished and complete job of its kind.
23. Waiver of Default.
Any failure of Hospital at any time, or from time to time, to enforce or require the strict keeping and performance by Vendor of any of the terms or conditions of this order shall not constitute a waiver by Hospital of a breach of any such terms or conditions and shall not affect or impair such terms or conditions in any way, or the right of Hospital at any time to avail itself of such remedies as it may have for any such breach or breaches of such terms or conditions.
24. Other Applicable Laws.
Any provision required to be included in a contract of this type by any applicable and valid federal, state or local law, ordinance, rule or regulations shall be deemed to be incorporated herein. Jurisdiction and Venue shall only be proper in San Diego County, California.
25. Governing Law and Venue.
The laws of the State of California shall control these Terms and any document to which it is appended. Jurisdiction and Venue for any actions involving these Terms shall only be proper in southern California and the county of San Diego, California respectively.
Vendor understands that the Hospital has adopted a Corporate Compliance Program and is committed to complying with all applicable laws, rules, and regulations. Accordingly, Vendor shall comply with all laws, rules, and regulations applicable to the services or items furnished to the Hospital under this Agreement. In addition, Vendor shall bring to the attention of the Hospital’s Compliance Officer, or his or her designee, any suspected current or potential improper practices Vendor may discover in the course of performing its obligations under this Agreement so that the Compliance Officer may take appropriate action. Company shall cooperate fully with any action taken by Hospital’s Compliance Officer and shall provide him/her expeditiously any books, records, or documents related to this Agreement that the Compliance Officer may request.
27. Network Access.
Access to or use by Vendor of Hospital’s information technology network(s) is not necessary for Hospital to fully utilize Vendor’s goods provided under this Purchase Order.
28. Access to PHI.
Access to or use by Vendor of Hospital’s protected health information (“PHI”), as such term is defined under the Health Insurance Portability and Accountability Act of 1996 and rules and regulations promulgated there under, is not necessary for Vendor to meet its obligations hereunder.