DIGNITY HEALTH STANDARD TERMS AND CONDITIONS
The following Dignity Health Standard Terms and Conditions (the “Standard 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 Dignity Health, a California Non Profit Public Benefit Corporation and the Facilities it owns, manages, leases or controls (referred to in these Standard Terms as "Dignity Health") from vendors (referred to in these Standard Terms as a “Vendor” or "Vendors"). These Standard Terms and Conditions are incorporated into each every purchase order issued by Dignity Health by this reference.
1. Conflict in interpretation, Order of Precedence. Except as provided herein, Vendor agrees that should any conflict or inconsistency arise between the application or interpretation of these Standard Terms and Conditions and any other document, the following order of precedence will apply: i.) A corporate agreement between Vendor and Dignity Health and specifically approved by Dignity Health’s Senior Management; ii.) Purchases made pursuant to a written agreement between the Vendor and a Dignity Health Facility and specifically approved by a member of the Dignity Health Facility's Senior Management; iii.) Purchases made subject to the terms and conditions of an agreement between Vendor and a Group Purchasing Organization that Dignity Health participates in; iv.) These Standard Terms and Conditions and the terms of the applicable purchase order; and v.) Any documents provided by the Vendor. Other than as provided above, all Purchases will be subject to these Standard Terms and Conditions. All pre-printed terms and conditions contained on any documentation provided by Vendor are of no force or effect and are not binding upon Dignity Health.
2. Cancellation. Purchases may be cancelled as follows:
(i) To the extent the Purchase is for services or involves a Lease or License agreement, Dignity Health may cancel the Purchase with or without cause, and without penalty, upon thirty-(30) days' advance written notice to Vendor.
(ii) To the extent the Purchase is for the purchase of goods, Dignity Health may cancel the Purchase without penalty, at any time prior to delivery.
3. Software License. Goods provided may include certain software (the "Software"). Software may include software developed by Vendor and included directly with the goods provided and in other cases may be Software licensed from third parties, but provided by Vendor. Vendor hereby grants Dignity Health and the Dignity Health Facility utilizing the Software a non-exclusive, perpetual, irrevocable license, to:
(i) Install, execute, and use the Software on computers and equipment for use by and on behalf of Dignity Health’s authorized users;
(ii) Reproduce the Software for back-up and archival, testing, and support purposes;
(iii) Exercise any additional rights set forth in the applicable agreement or purchase order; and
(iv) Permit third parties to exercise the rights and licenses granted hereunder on behalf of Dignity Health Facilities specified on the applicable purchase order.
4. Time of the Essence. Time is of the essence with respect to all provisions of these Standard Terms and Conditions that specifies a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use period allowed by the agreement or underlying purchase order or agreement.
5. Shipping Terms. Unless specified otherwise in the agreement or purchase order, all shipping and handling costs necessary to deliver goods are borne by the Vendor. Risk of loss or damage to goods shall pass to Dignity Health at the time the goods are received by Dignity Health.
6. Payment Terms. Unless specified on the agreement or purchase order, payment will be due from the Dignity Health Facility forty-five (45) days from receipt of Vendor’s invoice or receipt of goods or services, whichever is later. Dignity Health may pay within twenty (20) days of invoice, in which case Dignity Health will take a two (2%) percent Prompt Pay Discount. Neither Dignity Health nor the Dignity Health Facility will be responsible for payment of invoices received more than one hundred eighty (180) days from receipt or acceptance of goods.
7. Taxes. The amount owing to Vendor under the agreement and applicable purchase order is inclusive of all applicable sales and use taxes due and owing.
8. Returns. Goods may be returned by the Dignity Health Facility in original packaging at any time within thirty (30) days of receipt, and the Dignity Health Facility will receive a full refund or credit.
9. Warranties and Representations of Vendor. Vendor warrants and represents the following to Dignity Health:
(i) All goods will be of merchantable quality and fit for the purpose intended;
(ii) All goods provided will operate to manufacturer’s specification and in accordance with the manufacturer’s operating criteria.
(iii) Its employees have the requisite skill, training and qualifications necessary to perform the services identified in the agreement and Purchase Order. Services will be performed in accordance with the terms of these Dignity Health Standard Terms and Conditions, the applicable agreement and purchase order and in accordance with generally accepted industry standards; and
(iv) Vendor and its employees providing services on the campus of a Dignity Health 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 Dignity Health 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.
(v) 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, trade mark, trade name, copyright or patent rights.
(vi) 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.
(vii) 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.
(viii) Packaging shall clearly indicates whether goods contain or do not contain PVC, DEHP, latex, and/or mercury.
(ix) 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 the Dignity Health Facility’s Institutional Review Board.
10. Corporate Integrity. Vendor acknowledges that Dignity Health operates under a compliance program known as the Corporate Integrity Program of Dignity Health. Vendor further acknowledges that notwithstanding anything contained herein, Dignity Health will not be required to engage in any conduct that may violate any policies, procedures, or directives of the Corporate Integrity Program or those of its HIPAA-related polices and procedures.
11. Compliance with Law. Vendor shall comply with all laws, ordinances, rules, regulations and accrediting agency standards (including but not limited to the Joint Commission’s Accrediting Agency standards) which are applicable to the Purchase.
12. 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 Dignity Health’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 Dignity Health’s confidential information. Notwithstanding any other provision of this Agreement to the contrary, Dignity Health shall have the right to disclose pricing and other terms of this Agreement to Dignity Health’s third party payer sources, as well as its attorneys, accountants, group purchasing organization and other third parties retained by Dignity Health (collectively “Dignity Health Consultants”) without the consent of Seller (in writing or otherwise) provided any such Dignity Health Consultants agree to the same level of confidentiality set forth in this Agreement.
13. Network Access. Access to or use by Vendor of Dignity Health’s or a Dignity Health Facility’s information technology network(s) is not necessary for Dignity Health and Dignity Health’s Facility to fully utilize Vendor’s goods provided under this Purchase Order.
14. Access to PHI. Access to or use by Vendor of Dignity Health’s or a Dignity Health Facility'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.
15. Relationship of the Parties. The relationship of the parties will be independent contractors. This Purchase shall not be construed to create any relationship of employment, agency, franchise, joint venture, partnership or other similar legal relationship between Dignity Health and Vendor.
16. Limitation on Liability. EXCEPT AS PROVIDED BELOW, IN NO CASE WILL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF AGREEMENT OR NEGLIGENCE, EXCEPT AS PROVIDED BELOW. SUCH EXCLUDED DAMAGES INCLUDE, WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF SAVINGS OR REVENUE. The limitations of the foregoing do not apply to the following: (i) liability for personal injury; (ii) damage to tangible property arising in whole or in part from either party’s negligence or willful misconduct; (iii) disclosure of confidential, proprietary, or privileged information; and (iv) any known violation of a law, rule, regulation or accrediting agency standard applicable to this agreement or the items purchased under it.
17. Dispute Resolution. Vendor and Dignity Health agree that their long term mutual interest will be best served by an expeditious and fair resolution of any disputes which may arise out of the purchase of goods and services and to contracts for Leases and License Agreements under this Purchase Order, or from any dispute concerning these Standard Terms and Conditions. Therefore, the parties agree to use all reasonable efforts to resolve such disputes as expeditiously as possible on a fair and equitable basis through consultation and negotiation in good faith. Toward this end, the parties agree to develop and follow a process for presenting and settling disputes through progressive escalation to senior managers in each party's respective organizations. If the matter has not been resolved within a reasonable period of time utilizing the process set forth above, either party may elect to pursue resolution of the matter through any means available to that party under law or equity.
18. Attorneys’ Fees. In any action brought to enforce any provision of the agreement or purchase order (including these Standard Terms and Conditions), the losing party will pay the prevailing party’s reasonable attorneys’ fees and costs. As used herein, the term “prevailing party” means the party that obtains the principal relief it has sought, whether by compromise, settlement or judgment. If the party which instituted or initiated the action dismisses or discontinues such action without the concurrence of the other party, such other party will be deemed the prevailing party.
19. Vendor Indemnification. Vendor agrees to indemnify, defend and hold harmless Dignity Health and its officers, directors, employees, agents and representatives for, from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements and expenses (including interest, penalties and reasonable attorneys’ fees and costs) arising out of or related to (i) the negligent, willful or illegal performance of Vendor’s obligations under this Purchase Order; or (ii) any misrepresentations, or breach of any warranties, made by Vendor in the agreement or purchase order.
20. Insurance. Vendor will maintain, at its expense, the following insurance coverages. This required insurance will be in effect at the time the purchase order is issued by Dignity Health and will be maintained during the term of the agreement, including any warranty period:
(i) Commercial and comprehensive general liability insurance in amounts not less than $1,000,000 per occurrence and $3,000,000 annual aggregate for all covered claims.
(ii) Products liability insurance in amounts not less than $1,000,000 per occurrence and not less than $3,000,000 annual aggregate.
(iii) Professional liability or errors and omissions insurance with limits of liability of not less than $1,000,000 per claim and $3,000,000 per occurrence listing at least Vendor, its representatives and agents as insiders.
(iv) Workers’ compensation insurance and other insurance as required by law.
Upon demand, Vendor will provide Dignity Health with a certificate of insurance or other proof acceptable to Dignity Health to verify that Vendor has complied with the terms of this Section. Vendor will secure an endorsement from its insurer providing that Dignity Health will be provided at least thirty (30) calendar days prior written notice of any proposed cancellation or change in insurance carriers or coverage.
21. Public Laws. In accordance with Public Law 96-499, enacted December 5, 1980, Vendor certifies that until the expiration of four (4) years after the furnishing of the above service, Vendor will make available, upon written request to the Secretary of the Department of Health and Human Services or the Comptroller General of the United States, or any of their duly authorized representatives, and pursuant to the regulations of the Secretary of the Department of Health and Human Services, any documents and/or records which are required to be disclosed pursuant to such laws and regulations. If Vendor enters into a subcontract for goods or services to be rendered hereunder with a related party, which subcontract has a value of Ten Thousand Dollars ($10,000) or more, Vendor will require such subcontractor to be subject to the same obligations set forth herein.
22. Assignment. Neither Dignity Health nor Vendor may assign any part of this agreement without the prior written consent of the other party. Notwithstanding the foregoing, Dignity Health may assign this agreement and the underlying purchase order without such consent to a present or future Facility that it owns, manages, or leases, provided that such assignment shall not relieve Dignity Health of any of its duties or obligations under the agreement and purchase order.
23. Binding Agreement. No amendments or changes to these Standard Terms and Conditions will be valid unless approved in writing by both parties.
24. Governing Law; Exclusive Jurisdiction. Any dispute arising from the relationship between the parties, will be construed and enforced in accordance with the laws of the State of California, exclusive of its choice of law provisions. Each of the parties consents to the exclusive personal jurisdiction and venue of the courts, State and Federal, located in San Francisco, California.
25. Notice. All notices, demands, or other communications given hereunder will be in writing and will be sufficiently given if personally delivered or delivered by overnight delivery service or sent by registered or certified mail, first class, postage prepaid, or by facsimile transmission or similar written means of communication, addressed to the respective parties at the addresses provided in the Dignity Health Purchase Order, or such other address with respect to any party hereto as such party may from time to time notify (as provided above) to the other party hereto. Any such notice, demand, or communication will be deemed to have been given: (a) if mailed as provided above, as of the close of the third (3rd) business day following the date so mailed; (b) if personally delivered or sent by overnight delivery, on the date delivered; and (c) if sent by facsimile transmission, upon receipt, provided a duplicate copy of the notice is promptly given by first class or certified mail or by overnight delivery.
26. Survival. Provisions of the agreement or purchase order that by their nature, sense or context survive or are intended to survive expiration or termination of the agreement or underlying purchase order, including, not by way of limitation, provisions with regard to indemnification, Vendor’s warranty and limitation of liability, will survive the expiration or termination of the agreement and underlying purchase order.
27. Third Party Beneficiaries. No provision of the agreement or underlying purchase order is intended to confer any benefit upon any third party and no third party will have the right to enforce any of the provisions of this the agreement or underlying purchase order.
28. Construction. These Standard Terms will be interpreted without regard to any presumption against the party that was responsible for its drafting and in an even-handed manner rather than against the drafting party.
29. Validity and Severability. It is intended that these Standard Terms and Conditions will not be in violation of any valid applicable law(s), whether federal, state or local, and to that end it is agreed that the rights, duties and obligations of the parties hereto as provided for in these Standard Terms and Conditions will be binding only insofar as it is lawful for the parties to so agree. If any provision of these Standard Terms and Conditions is at any time in violation of any such law, these Standard Terms and Conditions will be considered divisible and inoperative as to such invalid portion and the remainder of this Agreement will be valid and enforced.
30. Captions and Section Headings. Captions and section headings are for convenience only and are not a part of this Agreement and will not be used in construing it.
31. Entire Agreement. The body of the Dignity Health purchase order and these Standard Terms and Conditions and the applicable agreement taken together are the entire agreement between the parties relating to the Purchases. Except as expressly provided hereunder, these integrated documents supersede all correspondence, offers, negotiations, e-mails, and telephone communication between Vendor and Dignity Health relating to the subject matter of the purchase order or agreement. A waiver of any of the provisions of these Standard Terms and Conditions will not constitute a waiver of any other provision, nor will it constitute a continuing waiver.