The following terms and conditions are incorporated into your Direct Supply Professional Services Agreement (“Agreement”) and apply to your purchase of professional services from Direct Supply.
We warrant that all services will be performed in a professional manner by experienced staff, consistent with industry standards. In the event that you are dissatisfied for any reason with any of the services we provide, please promptly notify our authorized representative. Because we do not have control over the cost of labor, materials, or equipment, contractors’ methods of determining bid prices, or market or negotiating conditions, we cannot and do not warrant or represent that bids or negotiated prices will not vary from your budget for the project or from any estimate of the Budget. You understand that we may perform some or all of the services through qualified contractors and consultants. You warrant that we may rely upon the accuracy of the information provided by you and your agents. If the facility is leased, you represent that you have authority to engage in this Agreement and undertake the envisioned project work. You either own the premises on which the services are being performed or represent that you have the necessary permission from the owner of such premises to perform the services.
Credit, payment, and collection services may be performed for us by our affiliated companies. Payment is due upon receipt of our invoice and is not subject to setoff or reduction without our prior written consent. We will add to your invoice(s) and you agree to pay us any applicable sales tax in addition to the purchase price. 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. Payment terms and our offer to provide services are contingent on your qualified credit. In the event of termination which is not our fault, we shall be compensated for all services performed prior to termination, together with Reimbursable Expenses then due and all expenses directly attributable to termination for which we are not otherwise compensated, plus an amount for our anticipated profit on the value of the services not performed by us.
Either party may terminate this Agreement for a material breach which is not cured after 10 days prior written notice. Upon termination you agree to pay us within 15 days for all services performed and a pro-rated portion of the fees outlined above for work in progress. 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 “Warranties & Services,” “Medicare Discounts & Access to Records”, “Copyright & Promotional Materials,” “Hazardous Materials,” “Legal Disclaimers, Limitations & Exclusions,” and “Miscellaneous.” In the alternative, we may elect to suspend services should you fail to pay us or otherwise breach your obligations under this Agreement; we will give 7 days prior written notice of such suspension and we shall have no liability for any delay or damage caused by such suspension of services or otherwise. You shall pay all sums due before we resume services, and our fees for the remaining services and time schedules shall be equitably adjusted.
Should you desire to make changes or additions to the services identified, or should we encounter certain hazards or obstacles that could not have been reasonably foreseen, we will be entitled to an extension of time to complete our portion of the project and we will promptly submit a change order (“Change Order”) to you. Change Orders will closely estimate all additional costs and time we anticipate. You will have no obligation to pay for such Change Order 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.
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.
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 (3) 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, designs, this Agreement, the Proposal, and these Standard Terms & Conditions. 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.
This Agreement represents the entire and integrated contract between the parties with respect to the subject matter described herein and supersedes all prior negotiations, representations, or agreements, whether written or verbal. This Agreement may be amended only by a written document signed by authorized representative of both parties. Nothing contained in this Agreement creates a contractual relationship, benefit, or cause of action in favor of a third part against either party.
We grant you a limited, nonexclusive license to use the design development drawings, contract documents, and related materials we provide you (collectively, the “Works”). We retain any and all copyrights in and to the Works. We are deemed to be the author of such Works under the U.S. Copyright Act. We retain the sole and exclusive right to sell copies of, create derivative works of, and reproduce the Works. Reproduction of the Works without our prior written consent is strictly prohibited. We shall have the right to include representations and images of the project, including photographs of the exterior and interior, within our promotional and professional materials. Our materials shall not include images of your residents or employees unless you agree otherwise. You shall provide professional credit for us on the construction sign and in the promotional materials for the project.
Neither we nor our contractors or consultants shall have any responsibility or liability and you release all of us for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the project premises including but not limited to pollutants, asbestos, asbestos products, polychlorinated biphenyl (PCB), mold or other toxic substances. If any environmental remediation work is required after your environmental site assessment report indicates the presence of any hazardous materials you agree to contract with or employ a qualified remediation professional to remove such hazardous materials before we will be required to proceed with any further work. You agree to disclose the results and reports of prior tests, inspections or investigations, if any, conducted for the project involving structural and mechanical systems; chemical, air and water pollution; hazardous materials; or other environmental and subsurface conditions. You also agree to disclose all information regarding the presence of pollutants at the project site.
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.
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; pandemics; national, state or local state of emergencies; 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. We have been working tirelessly to respond to the COVID-19 outbreak and to continue to serve our customers. Like many suppliers and service providers, there are some items or timelines that may be out of our control during this national emergency and world-wide pandemic. Availability and dates for delivery, installation or service may change, and we promise to keep you updated.
Notices must be sent by a reputable overnight carrier or certified mail return receipt requested. Headings are for the convenience of the parties only. Neither party may assign this Agreement without the other party’s consent provided that we may assign this Agreement in whole or any part to any of our wholly-owned subsidiaries or related companies without notice to you. This Agreement binds and inures to the benefit of each party and their permitted successors and assigns. 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, including but not limited to these Standard Terms & Conditions, and the Preliminary Project Scope, 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. No inconsistent or conflicting terms in any document (e.g. purchase order) you may provide will amend or supersede this Agreement and we reject any such inconsistent terms unless signed by our Vice President. 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. Like many interior designers in our industry, some of our suppliers may provide us rebates, discounts, credits and other incentives for the purchase, marketing, specification or similar activities associated with their products, materials and/or services. In identifying suppliers and specifying materials, we may consider a number of factors, including supplier availability, safety, functionality, maintenance, and your preferences. Regardless of any incentive made available to us, we will always provide you with options for products, materials and services which we believe to be appropriate for your project and which are from quality suppliers and service providers. Please note that we use these incentives to lower our overhead costs and, because these incentives may change from time to time, we do not credit those incentives to invoices. In conjunction with negotiating these applicable rebates, discounts, credits and other incentives, we may need to share the legal terms and conditions of our agreement with you, to register your project for such incentives, and you authorize such disclosure for this limited purpose.
This proposal assumes that the owner and/or its representatives provide us with accurate, dimensioned drawings of the building spaces, including all columns, hazardous materials or conditions, obstructions such as electrical conduit, piping ductwork and any other vertical elements that are fixed and cannot be relocated before the completion of Design Development. We shall rely on the accuracy of any owner-provided drawings. The owner and/or its representative will provide existing product model numbers or physical samples if they are not readily visible on the products during site survey.