Direct Supply Products & Services Agreement – Standard Terms and Conditions

The following terms and conditions are incorporated into your Direct Supply Products & Services Agreement (“Agreement”) and apply to your purchase of products and/or services from Direct Supply.

Warranties. We warrant that all services will be performed in a professional manner consistent with industry standards. We also warrant that all products will conform to their published specifications upon shipment and, to the extent allowed, we pass on the manufacturer’s warranty to you. We promise that we will attempt to assist you in resolving any material defects you may encounter with the products and services. All warranties exclude fading; variations in metals, wood or fabric; stains; spills; exposure to chemicals, odors, heat or light; normal wear and tear; modifications; or damage caused by abuse, improper use, or use which exceeds published limitations. Please note that repair, warranty, service, defect or replacement obligations are the sole responsibility of the product manufacturer. No advice or consultation we may provide relieves you from your sole responsibilities for proper product selection, use or maintenance and patient care.

Delivery & Installation Services & Site Preparation. We offer a comprehensive, national delivery network of carriers. For any delivery and freight you have elected, we will arrange for a qualified and appropriate carrier to deliver the products to you. The costs of freight, delivery, and other services you may have elected have been estimated as provided in the Agreement. Any Target Installation Date(s) mentioned within the Agreement are desired installation start date(s) you requested.  Actual installation dates may differ based upon supplier shipment confirmations, Installation Coordination requirements, construction schedules or your requests.  Title (except for software) and risk of loss to all products passes to you when the products leave our vendor’s shipping dock. In the event of product loss or damage in transit from our carriers, we will assist you in making claims. You agree to notify us of any product shortages or damage within two business days from delivery or completion of installation. Delivery and services may be provided by subcontractors. With respect to each location (“Site”) at which products or services are provided, you are responsible for: (a) providing all necessary permits, inspections and certifications; (b) providing an on-site contact to coordinate the delivery and installation of products; (c) providing access to necessary areas of the building to accommodate installation or other services; (d) providing reasonable, free and safe space for delivery of the products and performance of the services, including elevator certification; (e) moving furniture and other items out of rooms to accommodate installation; (f) connecting, disconnecting and reconnecting wiring, data, water, or electrical systems to accommodate installation; and (g) providing necessary safeguards, mechanisms, staffing levels, care plans, training and procedures to safely and appropriately care for and protect residents and patients during and after the services. Delivery and services will be performed between the hours of 7:00AM and 5:00PM, Monday through Friday (excluding holidays). Quoted prices for installation and on-site services do not include overtime, night time, standby, weekend or holiday rates.  If you have elected not to purchase certain services related to the products (such as product storage, lift gate services, unloading, inside placement, un-cartoning, product check-in, placement in final location and/or debris removal), you are responsible for these services. You represent that you are either the owner of the Site or have permission and authority from the owner of the Site to enter into this contract and have the work performed on and to the Site. 

Returns. Once ordered, most materials, products, and equipment are noncancellable and nonrefundable and/or may be subject to a restocking and return fee from the manufacturer. Without limiting the foregoing, fabrics, custom furniture or furnishings, custom mill work, flooring, fixtures, and stainless steel fabrication are noncancellable and nonreturnable once ordered.

Payment & Project Changes. Credit, payment, and collection services may be performed for us by one of our affiliated companies. Unless otherwise approved by us, we will invoice you for products and materials when shipped to the Site or the storage contractor (e.g. warehouse) and will invoice you for services upon completion of each service or, if completion takes more than 30 days, we will invoice you once every 30 days. Payment terms and our offer to provide products and services are contingent on your qualified credit. We may request certain credit or funding documentation from you, and may delay your purchase until we receive sufficient documentation.  Unless otherwise noted in the Agreement, payment is due net 30 days from date of our invoice and not subject to setoff or reduction without our prior, written consent. We may charge you a one percent late charge per month for payments that are 30 or more days past due, and you agree to pay all costs of collection including all reasonable attorney’s fees should you fail to pay any amounts due us. You agree that we may contact and share information with the owner and/or management company for the Site in the event you fail to timely pay us. The price in the Agreement envisions all products and services reasonably necessary for the completion of our portion of the project, provided that this estimate does not include any taxes, costs occasioned by local laws and codes, bonds, insurance, or any additional costs or fees incurred you request or which are necessitated by adverse conditions (e.g. hazardous materials, force majeure, etc.).  Additionally, prices may increase if tariffs are imposed on the products after the Agreement date.  Should you make changes or additions to the products or services or project requirements, should you delay the delivery or service dates, or should we encounter certain hazards or obstacles that could not have been reasonably foreseen, we will be entitled to a change in our price and an extension of time to provide the products and applicable services and we will promptly submit to you a change order (“Change Order”). Change Orders will closely estimate all additional costs and time we anticipate. You will have no obligation to pay for Change Order products or services and we will have no liability for delays or may suspend all work on the project until the parties agree to the Change Order.

Government Funding & Access to Records. Discounts, rebates or other purchase incentives provided on the products may constitute “discounts” under the Social Security Act. The parties each agree to use their best efforts to comply with requirements imposed on “sellers” and “buyers” under the Act and the “safe harbor” regulations regarding discounts set forth in 42 C.F.R. § 1001.952(h). You may have an obligation to: (a) claim the benefit of the discount(s) in the fiscal year in which the discount(s) are earned; (b) fully and accurately report the discount(s) and actual price paid for products and services in any applicable cost report, to third party payors and patients; and (c) provide upon request by the Department of Health and Human services or any state agency access to this contract and information regarding all discounts received and the actual price you pay. If required by law, the Comptroller General, DHHS and their duly authorized representatives shall have access to this document and records to verify the nature, extent and costs of services provided by us and included in your cost report, both during and for four (4) years after this contract terminates or expires. This access shall be provided in accordance with the provisions of Public Law 96-499, Omnibus Reconciliation Act of 1980, as amended. The Comptroller General and its duly authorized representative shall have similar access to agreements subject to 42 USC § 1395 between us and our contractors and to books, documents and records of us and such organizations solely as they relate to the performance under this contract. The products bid or offered may include non-domestic end products. Please contact us if you need additional information prior to accepting any order or if you are using federal funds (not including Medicare or Medicaid) to pay for any products or services.

Security Interest, Lien Notice & Sales Tax. Until paid for, this contract serves as a security agreement under the Uniform Commercial Code and creates a security interest in such collateral for which we have provided value. You authorize us to file all documents necessary to secure and perfect its security interest and any lien rights in and to such collateral. To the extent required by law, we hereby give you notice that persons performing services or furnishing materials for the improvement of the Site may have lien rights on the Site if not paid. We will add to your invoice(s) and you agree to pay us any and all applicable sales and use tax in addition to the purchase price.

Confidential Information. Except to fulfill its obligations under this contract or as required by law, neither party (each a “Receiving Party”) will disclose or use any of the other party’s (“Disclosing Party”) nonpublic information which the Receiving Party receives or learns and: (a) which is protected by law as confidential (e.g. protected health information (“PHI”)) or (b) which is marked as confidential or words to that effect, during the term of and for three years following termination of this contract unless another law provides for a longer period of protection (e.g. PHI, trade secrets). “Confidential Information” includes but is not limited to: PHI, finances, pricing, computer systems, software marketing plans, and the contract. Confidential Information does not include information that is lawfully available in the public domain prior to disclosure by the Disclosing Party or that is lawfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party.

Force Majeure. Neither party will be liable nor in breach of its obligations under this contract (except the obligation to make payments when due) to the extent such performance is delayed or prevented due to causes beyond such party’s reasonable control (“Event of Force Majeure”), including but not limited to, Acts of God; terrorism; war; material shortages; acts (or omissions) of the other party or its contractors, suppliers, employee or agents; act of government; labor disputes; or transportation shortages.

Insurance. We maintain at our sole expense: (a) general commercial liability insurance with limits of no less than $1,000,000 per occurrence and $2,000,000 aggregate; (b) worker’s compensation and employer’s liability insurance; and (c) all insurance required by law. You have or will obtain and maintain at your sole expense: (x) general commercial liability insurance with limits of no less than $1,000,000 per occurrence and $2,000,000 aggregate; (y) builder’s risk insurance in an amount of no less than the value of the Site; and (z) all insurance required by law.

Termination. A party may terminate the contract for cause after 10 days written notice to the other party if such other party: (a) becomes insolvent, bankrupt or assigns all its assets for the benefit of creditors; or (b) materially breaches this contract (unless the contract already provides you with an exclusive remedy) and fails to substantially cure such breach after 30 days written notice. We will also have the right to suspend our performance immediately or terminate the contract after 10 days written notice to you if: (y) there is an Event of Force Majeure lasting longer than 120 days; or (z) you fail to make any payment when due. Upon termination as provided in this Section, you will pay us within 30 days for all products received and all services performed. All obligations and duties which, by their nature survive the termination of this contract will remain in effect following such termination, including but not limited to your obligation to pay us, protection of Confidential Information, and the Sections entitled “Discounts & Access to Records”, “Security Interest, Lien Notice & Sales Tax,” “Warranties,” “Legal Disclaimers, Limitations & Exclusions,” and “Miscellaneous.”

LEGAL DISCLAIMERS, LIMITATIONS & EXCLUSIONS. THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCT OR SERVICES WE PROVIDE NOR ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WE DISCLAIM ALL SUCH WARRANTIES. OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER IS LIMITED TO THE COST OF THE PRODUCT(S) OR SERVICE(S) (AS APPLICABLE) GIVING RISE TO THE CLAIM. IN NO EVENT, WHETHER IN CONTRACT, INDEMNITY, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE WILL WE BE LIABLE FOR LOSS OF PROFIT OR REVENUES, INTERRUPTION OF BUSINESS, COST OF COVER, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF WE WERE ADVISED OF SUCH DAMAGES.

Miscellaneous. You represent that you are purchasing the products for your own use and not for resale. The parties will comply with all laws applicable to them and the use of the products. To the extent products purchased by you under this Agreement include a FDA classified prescription medical device you warrant that such devices will be used only under the order of a licensed healthcare practitioner. Notices must be sent by a reputable overnight carrier or certified mail return receipt requested. You may not assign this Agreement without our prior written consent. If any provision of this Agreement is found to be invalid by a Court of competent jurisdiction, the remaining provisions will remain in full force and effect. This Agreement shall be governed by the internal laws of the State of Wisconsin, and any dispute arising hereunder shall be heard exclusively in the state or federal courts located within Milwaukee County, Wisconsin. This Agreement, including but not limited to these Standard Terms & Conditions, is the full, final, and integrated contract between the parties and supersedes all prior discussions or understandings regarding the products and services we are providing for this particular project. No handwritten changes or inconsistent or conflicting terms in any document (e.g. purchase order) you may provide will amend or supersede the Agreement and we reject any such inconsistent terms unless signed by our Vice President. To the extent that this Agreement may conflict or be inconsistent with any other contract you may have with us, this Agreement shall control. A contract will be formed between the parties once this document is signed or acknowledged (e.g. email) by Customer or once we ship products or perform services, whichever comes first. This Agreement may be signed in counterparts and/or by authentic facsimile and/or electronic (e.g. scanned) signatures which shall be as binding as original signatures.

Rev. 9-2019