Direct Supply, Inc. and/or its wholly owned subsidiaries (collectively, “DSI,” “us” and “our”) is pleased to do business with you (“Supplier” or “you”). By accepting our purchase order, Supplier consents to the Online Purchase Terms (“Terms”) applicable to the products, services and/or software included in our purchase order (the “Products,” “Services” and/or “Software,” as applicable), including but not limited to the Insurance Requirements, Services Terms and Software License Terms. Unless you have an existing contract with DSI which has been approved by an authorized DSI representative, these Terms constitute the entire agreement between you and us with respect to the subject matter herein, and no modifications, additional terms or conflicting terms (e.g., terms included on your invoice) are accepted without the written consent of a Vice President of DSI.
Pricing, Shipment & Payment
You agree to immediately notify us if any information on our purchase order is incorrect, including but not limited to pricing. You agree to have all orders for Products drop shipped, F.O.B. shipping point. The pricing on our PO is complete; there is no drop ship penalty, minimum order, handling charge or cancellation fees. You agree to provide DSI with an accurate lead time, and to proactively notify us if you will not meet the agreed-upon lead-time. Products payment terms are net 60 days after Product shipment and receipt of your invoice. For Services and Products involving installation Services, payment terms are net 60 days after installation and acceptance (“sign off”) by our customer. Payment does not constitute acceptance of any Product, Service or Software provided. If an unresolved customer issue arises before payment would otherwise be due, we reserve the right to withhold that amount of payment related to such issue until it is resolved to our and our customer’s satisfaction.
Returns & Warranty
You agree to promptly process and accept the return of all defective Products and any Products which are unused and undamaged for a full refund; there is no restocking fee associated with such returns. You agree to extend (and/or assign to the extent allowed) to us and our customer the longest and most favorable standard warranty for each Product. Without limiting the foregoing, you warrant that all Products will comply with all laws and regulations applicable to them, will be free from defect in material and workmanship, and will conform to their published specifications.
Publicity & Use of Name
You agree not to use our name (including the names of our subsidiaries, affiliates, divisions and product names) in any form of publicity or to release to the public any information relating to the Products, Services or Software provided to us under this Agreement, except with our specific prior written approval. You grant to us a limited, nonexclusive license to use and publish your name, logo, trademarks and copyrighted materials you provide to us solely for purposes consistent with the Agreement.
Independent Contractor & Taxes
You and your Staff are independent contractors, i.e. not our employees, and are not eligible for nor covered by any of our benefit, worker’s compensation, retirement or insurance plans or programs. No tax of any kind will be withheld or paid by us on behalf of your Staff. We are purchasing or licensing, as applicable, for resale/sublicensing purposes. Upon request, we will provide you with a copy of our reseller’s certificate. No sales tax should be charged to us on Products, Services or Software.
Clear Title, Subcontractor Payments & Lien Waivers
You warrant that title to all Products will pass to us and our customers free and clear of all liens, claims, security interests or encumbrances and you waive all claims to any monies owed by us to you to the extent of the accepted payment. Notwithstanding the foregoing, with respect to any loaner Products (e.g., during warranty repair), you retain all title to and responsibility for such loaner Products and we have no responsibility or liability for any loaner Products. By accepting payment, you certify that you have made or will promptly make payment to your subcontractors and suppliers from the proceeds of prior payments accepted, if any. At our request, you will immediately execute, and will use your best efforts to cause your subcontractors and suppliers to execute the lien waiver and application for payment documentation as reasonably requested.
You understand and acknowledge that we develop (or have third parties develop, e.g., private label) other products, services and software (each an “Other Offering”) for sale to, offering to, licensing to and/or use by our customers and potential customers.
INDEMNIFICATION & LIMITATION OF LIABILITY
You agree to defend, indemnify and hold harmless us and all of our agents, employees, customers and insurers (collectively the “Indemnitees”) from and against all claims, demands and judgments for liability, damages, costs (including attorney’s fees and litigation expenses through trial and appeal), and fines made or recovered against an Indemnitee for any of the following caused by you, your employees or contractors (collectively your “Staff”), or arising out of or relating to any Product or Service, as applicable, you provide: a) bodily injury or death to any person or property damage; b) violation of any intellectual property rights; or c) violation of any law, misrepresentation or breach of the Agreement. The Indemnitee shall promptly notify you in writing of any claim and cooperate in its defense. Except for any obligations of indemnification, UNDER NO CIRCUMSTANCE WILL WE OR OUR CUSTOMERS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS NO MATTER HOW ARISING OR EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY, IF ANY, OF US OR OUR CUSTOMER TO YOU WILL BE LIMITED TO THE COST OF THE PRODUCT OR SERVICE, AS APPLICABLE, GIVING RISE TO YOUR CLAIM.
Effect of Termination
The “Returns & Warranty,” “Noninterference,” “Indemnification & Limitation of Liability,” “Miscellaneous”, “HIPAA & HITECH Compliance”, and “Confidentiality” Sections of these Terms, plus the Insurance Requirements, any applicable Services Terms and/or Software License Terms, and any section identified as surviving shall survive any the termination of any purchase order. We may update or change these Terms from time to time.
HIPAA & HITECH Compliance.
As a supplier to the Long Term Care industry, our customers may share with us Protected Health Information (“PHI,” defined below) about their patients and residents. For example, a customer may ask us to attach a patient’s name to a product or product records, or a customer may report a safety incident involving a product ordered from us for a resident. Should we be required to share such PHI with you, you must protect its privacy and security in compliance with applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and their accompanying regulations (the “Privacy Rule” and the “Security Rule”), and other applicable laws. The purpose of this Schedule is to satisfy the requirements of these rules and their accompanying regulations, as amended from time to time.
“PHI” means information in any form or medium, shared by us or our customers with you or your Staff that (a) relates to the physical or mental health, treatment or condition of a person, the provision of healthcare to a person, or payment for the provision of healthcare to a person; and which (b) identifies the person or for which there is a reasonable basis to believe could be used to identify the person. “Electronic Protected Health Information,” or “ePHI,” and “Unsecured PHI” are subsets of PHI. “Electronic Protected Health Information” means PHI that is transmitted by or maintained in electronic media and “Unsecured PHI” is any PHI that is not encrypted or destroyed.
You agree that: (a) you may only use PHI for the purpose for which it was provided to you and for your internal business administration and operations; (b) you may only disclose it to a third party if authorized by the customer or us or as required by law; (c) you will use or disclose PHI or ePHI only in the minimum amount and to the minimum number of persons necessary to achieve the permitted purpose of the use or disclosure; (d) you will use appropriate safeguards to prevent other uses or disclosures of PHI or ePHI; (e) you will promptly report to us any non-permitted use or disclosure of PHI or Unsecured PHI of which you become aware, and you will promptly notify all necessary parties of any breach of Unsecured PHI as may be required by HITECH; (f) you will promptly mitigate, to the extent practicable, any harmful effect that is known to you arising from a non-permitted use or disclosure of PHI by you; (g) at the written request of us or our customer, you will provide access to PHI in accordance with 45 CFR 164.524; (h) you will make your internal practices, books and records relating to the use and disclosure of PHI available to us or our customer for purposes of determining the customer’s compliance with the Privacy Rule or the Security Rule; (i) you will develop, maintain, and use reasonable and appropriate safeguards to protect the confidentiality, integrity and availability of PHI and ePHI that you create, receive, maintain or transmit on behalf of us or our customer; (j) you will report to us and all necessary parties any attempted or successful unauthorized access, use, disclosure, modification or destruction of ePHI or Unsecured PHI or interference with your system operations in your information systems, of which you become aware; (k) you will ensure that any third parties to whom you provide PHI agree to the same restrictions and obligations with respect to PHI as you have agreed to hereunder; (l) at our or its customer’s request, you will return or destroy all PHI, and certify the same in writing; and (m) should we be requested to provide an accounting of any disclosures of PHI, you agree to assist us by promptly providing an accounting of any such disclosures of PHI.
We may disclose to you and your Staff certain confidential, nonpublic information (“Confidential Information”) including without limitation our cost and customer contacts, and other non-public information created or maintained by us about our customers, employees, finances, marketing plans, and operations. Confidential Information has been developed or obtained and is maintained by us at great expense, and its improper disclosure could result in great harm to us. For 3 years following your receipt of our purchase order, unless another law provides for a longer period of protection (e.g. trade secrets), you agree that you and your Staff will: (a) treat Confidential Information as confidential; (b) not disclose Confidential Information except those individuals within your organization with a need to know who are bound to maintain its confidentiality; and (c) not use any Confidential Information for your benefit (except to perform your obligations under the these Terms and the purchase order) or for the benefit of any third party.
Affirmative Action & Equal Opportunity Notice
We are proud to be an affirmative action and equal opportunity employer. As part of this commitment, we’re required to provide you with the following notice: Direct Supply, Inc. is an affirmative action and equal opportunity employer. You agree to comply with the provisions of Executive Order 11246 as amended, 41 C.F.R. § 60-741 (Disabled Persons) and § 60-250 (Veterans), and all relevant rules, regulations and orders of the U.S. Secretary of Labor.
No Disbarment or Exclusion
You represent and certify that neither you, nor your owner(s), directors, officers, employees or any subcontractor retained by you is subject to sanctions under either the Medicare or Medicaid program, or is disbarred, excluded, suspended, or otherwise excluded from or determined to be ineligible to participate in any federal agency or program. You will promptly notify us of any government investigation in which you become involved.
Medical Device Information
We are solely a distributor of your Products and are not the Manufacturer, Specification Developer, Contract Manufacturer or Repackager/Relabeler (as those terms are defined in the U.S. Food, Drug & Cosmetics Act). As the Product manufacturer, you agree to: (i) comply with all relevant laws and regulations relating to the design, manufacture, importation or initial sale of the Products, including but not limited to relevant U.S. Food & Drug Administration (“FDA”) laws and regulations; (ii) maintain all applicable FDA registrations and listings throughout the term of this Agreement; (iii) ensure, if and to the extent any Products are or become regulated under the U.S. Food, Drug & Cosmetics Act (the “Act”), the Products are not and will not become adulterated or misbranded; (iv) maintain compliance with all post-sale requirements of the Act, including but not limited to Medical Device Reporting (21 CFR Part 803), Medical Devices; Reports of Corrections and Removals (21 CFR Part 806), and those record-keeping requirements set forth in the Act; (v) obtain and maintain tests from a recognized third-party laboratory which support all Product claims, including but not limited to flammability, Underwriters Laboratory (UL) certifications and ETL listings; and (vi) Obtain and maintain all state-specific licenses and/or registrations required for the sale of the Products. Upon our request, you agree to provide us with documentation evidencing your compliance with these requirements. Additionally, you agree to promptly notify us of any breach of these requirements.
Headings are for the convenience of the parties only. Any document required or allowed to be signed by the parties may be signed in counterparts and/or by facsimile. Notices may be sent by Fed Ex, UPS or DHL. You agree to send a copy of all notices to us to our Legal Affairs department at the same address. Should any provision of the Agreement be found to be unlawful by a Court of competent jurisdiction, the offending provision(s) shall be stricken and the remaining provision(s) shall remain in full force and effect. These Terms shall be governed by the internal laws of the State of Wisconsin, excluding conflict of laws provisions. Any dispute or lawsuit arising under these Terms shall be heard exclusively in the state or federal courts located within Milwaukee County, Wisconsin, and each party hereby consents to the personal jurisdiction of such courts. We may assign this agreement in whole or part to any of our wholly-owned subsidiaries; Supplier may not assign this agreement in whole or in part without our prior written consent. Any purported assignment of this agreement by Supplier shall be void.
Services & Projects
You agree to provide the Services identified on our purchase and as otherwise mutually agreed to by the parties in writing (e.g., email). We will identify the Services to be performed, the location at and date(s) and time(s) (each a “Service Date”) on which the Services will be performed, and any special instructions (collectively the “Project”). Unless agreed to in a Change Order (defined below), the cost quoted by you and confirmed by us in a scope of work (or similar document) is complete and includes all Services, Products, installation, training, implementation, labor, materials, supervision, equipment, supplies, transportation, storage, licenses, inspections, permits, overhead, profit, insurance, and other customary items necessary for your timely and proper performance of your obligations under these Terms and the applicable purchase order; all other costs are your sole responsibility.
Assurance of Timely & Quality Work
Our customers have come to expect Outrageous Customer ServiceTM from Direct Supply and time is of the essence. You also agree to repair or replace any part of the Project site that is damaged in the process of performing Services or moving Products or personal property as part of the service being performed, or as otherwise caused by you or your Staff.
Professional Staff & Supervision
Your Staff performing Services will be appropriately trained, have customary and necessary tools with them to perform the Services, meet certain mutually agreed upon minimal qualifications, and dress in neat, clean attire wearing some form of Supplier identifying item (e.g., company shirt or cap). You will perform all Services in your business name only and your Staff are solely within your supervision, direction, license and control. You and your Staff performing the Services will not state or purport to be our employees or agents. Services and your Staff will be managed and directed by your on-site supervisor who will be available by mobile phone and who will provide us with daily updates on the progress such Services as needed. Neither you nor your Staff will provide any documentation to the customer (e.g., installation sign-off) on the Project site which references or identifies any costs of the Services.
Any Project changes (“Change Orders”) must be in a mutually acceptable writing (e.g., email, letter) which will identify all additional or decreased costs. We will not incur or pay any additional cost or charge unless such Change Order is approved by us before any additional work, Services or Products are provided. We will not pay for any changed or additional Products or Services requested directly at the Site unless we have first approved of them in writing.
You warrant that all Services will be provided by properly trained individuals using the highest degree of care and skill of similar professionals or trades within the locality. You and your Staff are licensed, certified and bonded, if applicable, to perform the Services in the state and locality where the Services are performed. For installation Services, you agree to warrant your work against defects and for conformance to specification for the longer of: a) the manufacturer’s standard warranty for any Products used, or b) one year after the Project’s substantial completion. At our request, you will promptly correct or re-perform defective Services to eliminate any deficiencies at your sole cost and subject to our approval. If you do not promptly correct such defects, we may do so and charge the actual cost to you and/or deduct such amounts from any payments due you.
Compliance & Safety
You and your Staff shall comply with all laws, regulations and ordinances applicable to the proper performance of the Project. You shall be responsible for all safety precautions in connection with the Services you and your Staff provide for the Project and will maintain at your sole cost all reasonable safeguards for safety, infection control, fire prevention, and general protection such as posting danger signs and other warnings against hazards. The Project site and surrounding area shall be kept free from waste or rubbish. At the completion of the Project, you will leave the Project site in a “broom clean” condition and promptly remove from the Project site all waste materials, rubbish, and your tools, equipment and surplus materials. Neither you nor any of your Staff shall use or dispose of any hazardous material on or in the Project site, except for use in the Project if otherwise allowed by law. You agree to comply with all policies of our customers relating to visitors and vendors while on site. You will screen all employees and contractors assigned to perform the Services for our Customers, including, without limitation, a drug screen and criminal background check in compliance with all laws of the jurisdiction in which the background check and drug screening are being performed, as may be required by any of our Customer policies made known to you, and as normally conducted for employees and contractors you would place in healthcare facilities. Background checks and drug screens will be performed in accordance with applicable law. Upon request, you will provide us or our Customers with proof of compliance of the background checks and drug screens.
Unfair Use of Customer Information
You agree not to disclose or quote to our customers, costs for any products or services you may provide or could provide for this or other projects, but instead will refer such customers to us or inform the customer that you will request such information from us. You will not unfairly circumvent or attempt to circumvent us or offer, solicit, provide, or sell any services or products to any of our customers to whom you have provided Services or Products during or within two (2) years following performance of such Services or sale of such Products.
Subject to these Terms, any Software shall be licensed to us and our customers under the following Software license terms and conditions. “Software” includes (i) independent software that we license from you and/or sublicense to our customers, and (ii) software included with or used in any Products and/or Services.
“Code” means both human readable programming statements that are able to be compiled or interpreted into a machine readable program (the “Source Code”) and the executable machine readable computer programs that are derived from Source Code and are capable of affecting or controlling the operation of the programmable device or system (the “Object Code”) related to the Software or any enhancements. “Documentation” means any user manuals, help documents and other written documentation provided with the Software or made generally available to end users of the Software.
Grant of License/Restrictions on Use
You shall permit access to and/or deliver, as applicable per our request, to us and our customers the Software and accompanying Documentation as provided with each order. You grant to us and our customers a limited, restricted, non-exclusive, worldwide, fully-paid, non-transferable (except to our customers and their facilities) license to access through the Internet or install, as applicable, and the right to use the Software, in machine readable Object Code form and to use related Documentation provided by you in connection with the Software, Products and/or Services only for our and/or our customer’s lawful business purposes. Consistent with the nature of these Terms, we may assign, sublicense, lease, or otherwise transfer the Software, Documentation and/or any portion thereof to our customers and/or their facilities, provided that such reproduction shall be solely for the use of us or our customers (or their facilities) and each of our and their respective employees (e.g., training purposes) and provided that any such reproductions shall be subject to any Software license materials you include with the Software, Product or Service, as applicable, or is subject to those terms you and we agree to incorporate into our contract or terms and conditions with such customer.
Ownership of Rights
You retain exclusive right, title and interest in and to the Software and Code and all copies or portions thereof all as delivered to us or our customer, as applicable, including all intellectual property rights, and all applicable rights to patents, copyrights and trademarks in and to the same will be and remain your property.
Service Levels & Representations
You warrant that all Software will conform to and function as provided in its then most recent documentation, these Terms, and any marketing materials. Furthermore, the Software and the Documentation Services provided by you shall comply with all federal, state, and municipal laws, regulations, permits, and standards.
Supplier represents it holds the insurance coverages and limits described below and agrees to provide us with the required Certificates of Insurance evidencing such insurance as a condition of receiving any payment.
Required Insurance Coverage Terms and Conditions
All policies must provide for no cancellation or reduction of coverage without thirty days prior written notice to us. Certificates of insurance must be furnished during and for three years following end or termination of the Agreement. Supplier’s insurance carriers must maintains an A.M. Best’s rating of “A-“ or better. Policies may not include any endorsements or modifications arising from pollution, explosion, collapse, underground property damage, or work performed by subcontractors. A waiver of subrogation endorsement is required for all policies. No deductibles or self-insured retentions may exceed $25,000 without our written consent.
General Liability & Additional Insured Endorsements
For Products, Supplier shall carry Commercial General Liability (GL) insurance coverage and product liability/completed operations (Prods/Com. Ops) coverage in amounts no less than $2,000,000 each occurrence, $5,000,000 aggregate, and $1,000,000 in Personal and Advertising Injury Coverage (Pers. & Adv. Inj.) naming Direct Supply, Inc. and its officers and employees as an additional insured on a primary basis. For Software, Supplier shall carry GL insurance coverage and Prods/Com. Ops coverage in amounts no less than $2,000,000 each occurrence, $5,000,000 aggregate and $5,000,000 in Technology & Information Errors & Omissions Liability (Cyber Liability) insurance coverage naming Direct Supply, Inc. and its officers and employees as an additional insured on a primary basis. For Services, Supplier shall carry GL insurance coverage for ongoing and completed operations in amounts no less than the corresponding limits in the “GL Insurance Requirements” row below for the Tier of “Services” they are providing naming Direct Supply, Inc. and its officers and employees as an additional insured on a primary basis.
For all GL policies, you must provide us a copy of your policies’ additional insured endorsements along with a copy of your certificate of insurance. GL Aggregate requirements may be met through GL insurance, Excess/Umbrella coverage or a combination of both. GL Coverage must be on an occurrence coverage form. A “claims made” or “modified occurrence” policy is not acceptable. All GL policies must also provide insurance for bodily injury liability, property damage liability, premises and operations coverage, contractual liability insuring Supplier’s obligations and broad form property damage.
Worker’s Compensation & Auto Liability
Supplier shall also carry worker’s compensation/employer’s liability as required by the applicable state law; $1,000,000 per each employee, accident and disease. Supplier shall also carry auto liability insurance coverage for all owned, hired and non-owned autos in amounts no less than $1,000,000 per occurrence with a combined single limit each accident for bodily injury and property damage.
If Supplier is performing hazardous material work (e.g., asbestos removal), Supplier must also maintain pollution liability coverage with limits no less than $3,000,000 per occurrence covering losses caused by pollution conditions that arise from Supplier’s operations. This insurance shall provide coverage for bodily injury and death; loss or damage to property, including loss of use of property or of property that has not been physically injured; cleanup costs; and costs and expenses incurred in the investigation, defense or settlement of claims.
Not a Limitation or Recommendation
Supplier’s liability is in no way limited to the types or amounts of insurance set forth above; to the extent it maintains insurance greater than these minimum requirements, such insurance shall be applicable to any liability obligations. We do not recommend this insurance as adequate to Supplier’s needs or requirements; Supplier is solely responsible to determine its insurance needs. Any other insurance maintained by Direct Supply is excess and not contributing insurance with the insurance requirements hereunder.