* CONFIDENTIAL TREATMENT REQUESTED AS INDICATED
Certain confidential portions of this Exhibit were omitted by means of blackout
of the text (the "Xxxx"). This Exhibit has been filed separately with the
Secretary of the Commission without the Xxxx pursuant to the Company's
Application for Confidential Treatment under Rule 24b-2 under the Securities
Exchange Act of 1934.
EXHIBIT 10.1
MASTER AGREEMENT
This Agreement (the "Agreement") is entered as of September 1, 2004, by and
between ADUROMED CORPORATION, a Delaware corporation with its principal place of
business located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 00-00, Xxxxxx, Xxxxxxxxxxx 00000
("Aduromed") and ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP, a Delaware
limited partnership with its principal place of business located at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("ARAMARK"). Aduromed and ARAMARK will
be referred to jointly as the "Parties" and separately as a "Party."
BACKGROUND:
ARAMARK and its affiliates provide managed services to contract clients
(collectively, "ARAMARK Clients," and separately, an "ARAMARK Client"),
including without limitation, procurement and supply chain management services
related to various equipment, goods, and services. Aduromed is in the business
of supplying certain of those equipment, goods, and services for commercial use,
in connection with on-site medical waste processing and related services.
Aduromed agrees to supply certain equipment, goods, and services to ARAMARK,
pursuant to the terms and conditions set forth below in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing background statement
(incorporated herein by reference) and the mutual promises, terms and conditions
set forth herein, Aduromed and ARAMARK have agreed as follows:
1. SCOPE
1.1 PRODUCTS AND SERVICES. ARAMARK grants to Aduromed the opportunity to
supply, on a preferred basis, upon request, the medical waste processing
equipment and products described in Exhibit "A" (the "Products") and those
related services described in Exhibit A (the "Services," with the Products
and Services referred to collectively as the "Products and Services") to
ARAMARK at the location(s) of those existing or potential ARAMARK
Client(s) that are designated by ARAMARK or its affiliates, from time to
time, as participating in the ARAMARK WasteStream QL Program (the
"Participating ARAMARK Clients"), for such consideration as is described
below in Sections 4-7 and Exhibit A. ARAMARK's "WasteStream QL Program"
provides various operational components (some of which may include the
Products and Services provided by Aduromed under this Agreement) to assist
ARAMARK Clients with managing their waste needs. Aduromed's Services
include providing the following items (in addition to those Services
identified in Exhibit A):
(a) All pre-sale support services described in Exhibit "B" (entitled,
"Aduromed Responsibilities" and incorporated by reference herein),
which will be provided to ARAMARK at no cost;
21-Jun-06
1
(b) All post-sale support services for Products described in Exhibit B,
which will be provided to ARAMARK at no additional cost (as any cost
associated with such post-sale support services have been included in
Aduromed's pricing for the Products, as shown in Exhibit A);
(c) All preventive and corrective maintenance services described in
Exhibit A (collectively, "Maintenance"), which will be provided to
ARAMARK at the discounted price shown therein (the "Discounted
Price"), subject to the Allowances set forth in Section 7 of this
Agreement;
(d) Providing "Environmental Solutions," defined as methods (consisting
of the Products and Services) that aid in the treatment or disposal
of Waste (defined below in Section 1.2) in a socially responsible
manner consistent with applicable "green" guidelines established,
from time to time, by recognizable federal, state, or local
governmental agencies or comparable organizations governing such
activities, which will be provided to ARAMARK at no additional cost
(as any cost associated with such post-sale support services have
been included in Aduromed's pricing for the Products, as shown in
Exhibit A);
(e) Assisting ARAMARK and each Participating ARAMARK Client as that
Participating ARAMARK Client prepares or modifies its own infection
control policies and procedures relating to Waste, in accordance with
all applicable federal, state, and local laws, rules and regulations,
and all applicable JCAHO and other accreditation requirements for
each Participating ARAMARK Client;
(f) Providing recommendations for the best methods for handling and
disposal of the ARAMARK Client's and Participating ARAMARK Client's
Waste;
(g) Maintaining current and complete knowledge of all changes in federal,
state, and local laws, rules, and regulations applicable with respect
to all states in which any Participating ARAMARK Client maintains a
facility that uses the Products and Services described in this
Agreement, as to any aspect of the WasteStream QL Program provided to
ARAMARK and to each Participating ARAMARK Client, and providing
ARAMARK with prompt updates on same.
Aduromed warrants and represents that the Products and Services described
in this Section and Exhibits A and B comprise Aduromed's full line of
medical waste processing equipment, goods, and services for commercial
use, in connection with on-site medical waste processing and related
services, as of the Commencement Date (defined below in Section 2.1). The
Parties intend to include within the scope of Products and Services
offered under this Agreement any changes or additions that Aduromed may
make to its full line of medical waste processing equipment, products, and
services, on and after the Commencement Date, which will be added through
separate written amendment(s) to Exhibit A, on which the Parties will
agree.
21-Jun-06
2
1.2 "WASTE" DEFINED. Products and Services provided by Aduromed under this
Agreement and each WasteStream QL Schedule (defined below in Section 1.4)
will be limited to processing the following three (3) categories of waste
(collectively, "Waste"):
(a) "MEDICAL WASTE," defined as sharps, infectious waste, non-reactive
chemotherapy waste, Chemical Waste (as defined hereinafter).
"Chemical Waste" includes any wastes derived from the use of chemical
agents that does not exhibit any of the four characteristics of
hazardous waste (ignitability, corrosivity, reactivity, or toxicity)
or appear on special EPA lists;
(b) "SOLID WASTE," defined as general refuse, food wastes, and recyclable
material;
(c) "CONFIDENTIAL WASTE," defined as Solid Waste that has been identified
as confidential in nature by the Participating ARAMARK Client; and
"Waste" does not include any waste streams other than those described
above; without limiting the foregoing, the following waste streams are
excluded from the scope of this Agreement and all WasteStream QL
Schedules: pathological waste; anatomical waste; case treated metals;
hazardous waste, radioactive waste, pesticides, PCBs, asbestos, used oil,
universal waste, asbestos--OSHA Class I, II, III, and IV work, lead and
mercury.
1.3 JOINT MARKETING PROCEDURES; ARAMARK'S RIGHT OF FIRST REFUSAL. Joint
marketing procedures, through which the Parties will evaluate and
participate together in business opportunities involving the Products and
Services and the ARMARK WasteStream QL Program, are set forth in Exhibit
"C." Aduromed will not knowingly solicit any ARAMARK Client or
Participating ARAMARK Client without ARAMARK's participation, and will not
provide any Products and Services for any ARAMARK Client or Participating
ARAMARK Client until ARAMARK and Aduromed have executed a WasteStream QL
Schedule for that particular ARAMARK Client or Participating ARAMARK
Client.
1.4 WASTESTREAM QL SCHEDULES. Specifications for particular Products and
Services that Aduromed will provide will be described in a separate
"WasteStream QL Schedule" for each particular Participating ARAMARK
Client, in the form attached as Exhibit "D," subject to the general terms
and conditions described in this Agreement. This Agreement will control in
the event of any conflict between its terms and those of any WasteStream
QL Schedule, unless specified otherwise in the individual WasteStream QL
Schedule.
Each WasteStream QL Schedule, upon execution by ARAMARK and Aduromed, and
upon ARAMARK's and the Participating ARAMARK Client's execution of a
corresponding contract or amendment for the WasteStream QL Program, will
be incorporated as part of this Agreement and attached as Group Exhibit
"E" (with WasteStream QL Schedules for each successive Participating
ARAMARK Client being identified therein as "Schedule #1," "Schedule #2,"
"Schedule #3," and so on).
Aduromed hereby confirms that its President and its Executive Vice
President, Business Development are each fully authorized to execute
individual WasteStream QL Schedules
21-Jun-06
3
(and amendments thereto) on behalf of Aduromed. ARAMARK hereby confirms
that the President of its Healthcare Division is fully authorized to
execute individual WasteStream QL Schedules (and amendments thereto) on
behalf of ARAMARK.
1.5 CUSTOMER RESPONSIBILITIES AND STANDARD CONDITIONS OF SALE. All sales of
Products and Services for Participating ARAMARK Clients will include the
Participating ARAMARK Client's agreement to comply with Aduromed's
standard Customer Responsibilities, and Aduromed hereby extends all
warranties and representations described in Aduromed's Standard Conditions
of Sale to both ARAMARK and each respective Participating ARAMARK Client
that purchases the Products. Aduromed's "Customer Responsibilities" and
"Standard Conditions of Sale," modified with the Parties' consent for
purposes of this Agreement and offerings to ARAMARK Potential Locations
hereunder, are attached as Exhibits "F" and "G," respectively. ARAMARK
agrees to obtain Aduromed's prior consent before modifying any of the
provisions shown in Exhibits F or G in negotiating ARAMARK's contracts for
the Products and Services with any Participating ARAMARK Client.
1.6 DEGREE OF CARE. Aduromed will provide the Products and Services in
connection with the WasteStream QL Program, under this Agreement and all
WasteStream QL Schedules, with the same degree of care, prudence,
diligence, and skill as would a reasonably prudent professional acting in
like capacity within their areas of expertise, under similar
circumstances, while being familiar with the terms of this Agreement.
Without limiting the foregoing, Aduromed, in providing Products and
Services under this Agreement and all WasteStream QL Schedules, will
comply with all applicable federal, state and local laws, regulations,
rules, and other legal requirements ("Laws"), including without
limitation, the Federal Consumer Products and Services Safety Act, the
Fair Labor Standards Act, the Hazardous Substance Act, the Occupational
Safety and Health Act of 1970, as amended, all environmental Laws, and all
applicable JCAHO standards. Aduromed will also comply with ARAMARK's
safety standards, as set forth on Exhibit "H," which may be revised by
ARAMARK, upon reasonable standards, from time to time, and which revisions
will be effective upon receipt by Aduromed.
1.7 DOCUMENTATION AS TO PARTICIPATING ARAMARK CLIENTS. Aduromed will provide
documentation detailing all Products and Services provided at all
Participating ARAMARK Clients, upon reasonable request to an Aduromed
officer or manager (or such other person as Aduromed may designate, from
time to time) by ARAMARK or any Participating ARAMARK Client (including,
but not limited to: preventive and corrective maintenance reports;
corporate aging reports; and such other reports as ARAMARK or the
Participating ARAMARK Client may reasonably request), with centralized
remote backup by Aduromed for all data pertaining to the Products and
Services, and the documentation described in this Section.
1.8 ADUROMED'S COVENANTS, REPRESENTATIONS AND WARRANTIES. Aduromed makes the
following covenants, representations and warranties, at all times during
the Term of this Agreement, on which Aduromed acknowledges that ARAMARK
will reasonably rely:
21-Jun-06
4
(a) Aduromed will act in accordance with all obligations imposed on
Aduromed under this Agreement and each respective WasteStream QL
Schedule on which the Parties agree; and with all applicable
obligations for the Products and Services, in connection with the
WasteStream QL Program, that are imposed on ARAMARK under ARAMARK's
agreement with each such Participating ARAMARK Client (provided, that
ARAMARK provides a copy or description of such additional obligations
to Aduromed reasonably in advance of Aduromed's compliance with
same);
(b) Aduromed has sufficient knowledge and professional expertise and
experience to provide the Products and Services described in this
Agreement and all WasteStream QL Schedules, including but not limited
to knowledge of all current and applicable federal, state, and local
laws, rules, and regulations, including but not limited to all
environmental requirements (collectively, "Laws") in all states in
which Participating ARAMARK Clients are located, and all current and
applicable JCAHO and other accreditation requirements (collectively,
"Accreditation Requirements");
(c) Aduromed (and its individual employees) has and will maintain, at all
times during the Term of this Agreement, all licenses,
certifications, and other qualifications necessary for Aduromed to
provide the Products and Services in connection with the WasteStream
QL Program, as described in this Agreement and all WasteStream QL
Schedules;
(d) Aduromed will maintain a sufficient availability of staff and third
party capabilities, with appropriate education, qualifications, and
expertise, to respond to ARAMARK's ongoing demand for Aduromed to
provide all Services (as defined in Section 1.1 and Exhibits A and B)
to ARAMARK and the Participating ARAMARK Clients, in connection with
the WasteStream QL Program;
(e) Aduromed, in providing all aspects of the Products and Services to
ARAMARK and to all Participating ARAMARK Clients, will advise
ARAMARK, in a timely fashion, of changes in all Laws in all states in
which Participating ARAMARK Clients are located, as well as all
applicable Accreditation Requirements, as they relate to operational
aspects of the Products and Services and the WasteStream QL Program;
(f) Aduromed will not remove, and will not be obligated to remove, any
waste (including but not limited to Waste) from the premises of any
Participating ARAMARK Client, either directly or by contract or other
arrangement with any third party; and
(g) Aduromed, in providing all aspects of all Products and Services in
connection with the WasteStream QL Program to ARAMARK and to all
Participating ARAMARK Clients, will comply with all applicable Laws
in all states in which Participating ARAMARK Clients are located, as
well as all applicable Accreditation Requirements.
21-Jun-06
5
(h) Aduromed warrants that all Products provided hereunder:
(i) will be produced in compliance with all applicable Laws;
(ii) will be labeled properly, pursuant to all applicable Laws;
(iii) will be in good and merchantable condition;
(iv) will be fit for the purposes of that Product's use in
connection with the WasteStream QL Program and any purposes in
connection with its installation or use under the applicable
WasteStream QL Schedule;
(v) will be fit for the purpose for which the products (including
but not limited to the Products) are sold or otherwise
provided; and
(vi) will not infringe, dilute, or misappropriate, or cause any
services ARAMARK or Aduromed provides in connection with that
product to infringe, dilute, or misappropriate, upon any
trademark, trade dress, patent, copyright or other intellectual
property rights of any third party.
1.9 NO MINIMUM QUANTITIES OR EXCLUSIVE. This Agreement does not constitute a
commitment by ARAMARK or its affiliates to purchase any minimum quantity
of Products and Services or to make purchases from Aduromed to the
exclusion of any other supplier, except to the limited extent of the
exclusive relationship described in Exhibit C (after certain conditions,
described therein, have been met).
1.10 LIMITATION OF LIABILITY. Aduromed and ARAMARK each will have no liability
to each other for indirect, special, incidental, or consequential damages,
loss of profits, loss of use or data or interruption of business, whether
such alleged damages are alleged in tort, contract, indemnity, or
otherwise; provided, however: (a) that the foregoing will apply only to
the extent that ARAMARK, in its own separate agreement with that
respective ARAMARK Client or Participating ARAMARK Client, has received an
express limitation of ARAMARK's liability for such damages; and (b) that
ARAMARK and Aduromed understand and agree that this Section, as between
ARAMARK and Aduromed, will control in the event of any conflict with any
other provision (including but not limited to any different or contrary
provision in the WasteStream QL exhibit with any ARAMARK Client and
Aduromed's Standard Conditions of Sale [as set forth in Attachment
WSQL-1A] or any other limitations of Aduromed's liability).
1.11 THIRD PARTY SOFTWARE. All third party software used by Aduromed will have
its own warranties and licenses. Aduromed assumes responsibility that
Aduromed will not violate third party agreements in providing Products and
Services under this Agreement and any WasteStream QL Schedules. Aduromed
warrants that the Products and Services, and any related work product, as
delivered by Aduromed, will not infringe on any third parties' rights for
the protection of any trade secret, proprietary, or copyrighted
information.
1.12 ABSENCE OF CONTRACTUAL BARRIERS. Aduromed represents and warrants that
neither Aduromed nor any of the staff that Aduromed may provide to render
services for ARAMARK under this Agreement or any WasteStream QL
Schedule(s) is restricted in any way from performing any of the work that
Aduromed or he/she may provide in the performance of Aduromed's duties
described in this Agreement or any WasteStream QL
21-Jun-06
6
Schedule(s), by reason of any other contracts, agreements, or other
restrictions that Aduromed or such staff may have with any third parties.
1.13 INDEPENDENT CONTRACTOR; NO AGENCY RELATIONSHIP. The Parties' sole
relationship with ARAMARK under this Agreement is that of an independent
contractor. Aduromed and ARAMARK are not partners, joint venturers, or
co-employers, nor will they be so deemed. Nothing in this Agreement or any
WasteStream QL Schedule will constitute or will be deemed to constitute
any agency relationship between ARAMARK and Aduromed.
1.14 COVENANTS CONCERNING THE PARTIES' EMPLOYEES. ARAMARK and Aduromed each
agrees that at no time during the Term of this Agreement and for a period
of one (1) year immediately following the termination of this Agreement
will either Party solicit, directly or indirectly, any employees of the
other Party for the purpose of employing, hiring or otherwise interfering
with their contractual relationships with such other Party, without the
prior written approval of such other Party; nor will either Party directly
or indirectly, for itself or in behalf of or in connection with any other
person, firm, partnership, corporation, association or facility, solicit,
hire, employ or take away any such employees or agents from the other
Party. Each Party agrees that if it violates the conditions set forth in
this Section, then the offending Party will pay to the offended Party, and
the offended Party will accept, as liquidated damages and not as a penalty
for such breach, an amount equal to three (3) times the annual salary of
the particular employee(s) hired by the offending Party in violation of
this Section.
1.15 WASTESTREAM QL OFFERINGS WITHOUT ADUROMED EQUIPMENT. Aduromed acknowledges
that this Agreement does not pertain to any of ARAMARK's WasteStream QL
offerings that do not involve the use of products and services that are
not similar to Aduromed's Products and Services.
2. TERM
2.1 TERM. The term of this Agreement ("Term") will begin as of September 1,
2004 (the "Commencement Date"), and will remain in effect for the later of
ten (10) years or so long as any WasteStream QL Schedule is in effect,
subject to earlier termination as provided below in this Agreement. The
Term may be extended thereafter, by separate amendment(s) to this
Agreement.
2.2. CONTRACT YEAR. A "Contract Year," for purposes of this Agreement, is each
consecutive 12-month period beginning on the Commencement Date, during the
Term of this Agreement.
2.3 TERM FOR INDIVIDUAL WASTESTREAM QL SCHEDULES. The commencement date and
expiration date for each individual WasteStream QL Schedule will be as
described in that respective WasteStream QL Schedule under the Section
entitled, "Term and Termination."
3. CONFIDENTIALITY, PROPRIETARY, AND INTELLECTUAL PROPERTY RIGHTS
21-Jun-06
7
3.1 CONFIDENTIALITY. The Parties acknowledge and affirm the terms of the
attached Confidentiality Agreement that they executed before the
Commencement Date of this Agreement (incorporated herein as Exhibit "I"),
and hereby agree that such terms will remain in full force and effect
during the Term of this Agreement and for two (2) years thereafter.
Aduromed agrees to provide ARAMARK with similar confidentiality agreements
executed by each staff member of Aduromed, before he or she begins any
work for ARAMARK under this Agreement.
3.2 PROPRIETARY MATERIALS. Each Party agrees that each Party and its staff
will keep confidential, and will not disclose to any third parties, this
Agreement and all WasteStream QL Schedules (except to allow disclosure of
a particular WasteStream QL Schedule to that respective Participating
ARAMARK Client), all policies, procedures, systems (including but not
limited to the WasteSteam QL Program), financial information, customer
lists and customer information, profit margins, allowances (including
Allowances) and discounts, formulae, marketing strategy, trade secrets,
pricing information, purchasing information, and other materials of a
proprietary or confidential nature, that were or will be developed either
jointly by both Parties, their parents or affiliates, or individually by
the other Party, its parent or affiliates. Upon request, each Party will
return to the other Party all proprietary materials of that other Party,
and all descriptions thereof, in whatever media.
Further, except in connection with the Products and Services and the
WasteStream QL Program described in this Agreement and its Exhibits and
the WasteStream QL Schedules, each Party agrees, that in dealing with
third parties, not to use any materials or other items that bear the other
Party's name, insignia, or patent or copyright notice without such other
Party's prior written authorization as to each such use; and each Party
agrees not to use any materials or other items that bear the co-branded
name, insignia, or patent or copyright notice created by both Parties
without such other Party's prior written authorization as to each such
use.
3.4 TITLE, COPYRIGHT, AND WORK PRODUCT. ARAMARK is and will remain the
exclusive owner of all rights, titles, and interests in all copyrights and
other intellectual property interests in the work product created by
ARAMARK and/or Aduromed with respect to all financial data and the
financial model for the WasteStream QL Program (both generally and as
applied to any and all individual ARAMARK Clients and Participating
ARAMARK Clients) and ARAMARK's own financial information, and all
applications, programs, reports, data, developments, modifications,
enhancements, and improvements thereof, including any contributions by
Aduromed, together with all source codes and object codes thereon, and all
copies thereof, in whatever media.
Aduromed is and will remain the exclusive owner of all rights, titles, and
interests in all copyrights and other intellectual property interests in
the work product created by Aduromed with respect to the Products
described in Exhibit A and Aduromed's own financial information, and all
applications applications, programs, reports, data, developments,
modifications, enhancements, and improvements thereof, including any
contributions by Aduromed, together with all source codes and object codes
thereon, and all copies thereof, in whatever media.
21-Jun-06
8
4. COMPENSATION
4.1 GENERALLY. During the Term of this Agreement, Aduromed will supply the
Products and Services to ARAMARK and its affiliates for use by and for the
Participating ARAMARK Clients, at the Discounted Price shown in Section II
of Exhibit A, FOB to the Participating ARAMARK Client's docks. Actual
shipping charges and applicable taxes, if any, will be prepaid by Aduromed
and added to the invoice.
4.2 ANNUAL ADJUSTMENT FOR CONSUMABLES AND MAINTENANCE. Aduromed may revise
prices shown in Section II of Exhibit A for those portions of the Products
and Services that are identified as Consumable Supplies and Maintenance,
once per Contract Year, not to exceed the corresponding "Annual Adjustment
Cap" shown in Exhibit A; provided, that Aduromed gives ARAMARK and the
on-site ARAMARK Manager at each Participating ARAMARK Client prior written
notice of any such revisions no later than May 1st of any given Contract
Year, with an effective date of any price increase no earlier than
September 1st of the following Contract Year.
4.3 COMPETITIVE PRICING AND ALLOWANCES. Aduromed warrants that during the Term
of this Agreement, all Pricing and Allowances (defined below in Section
4.4) offered in connection with the Products and Services, in the
aggregate, will be at least as favorable to ARAMARK and its affiliates as
the allowances and pricing offered by Aduromed to any third party
purchasing products and services of a quality and quantity similar to the
Products and Services purchased by ARAMARK and its affiliates under this
Agreement.
Aduromed will notify ARAMARK as far in advance as practicable of any
national or regional marketing promotions related to any Products and
Services, which will be made available to ARAMARK.
Aduromed will notify ARAMARK on a quarterly basis of all pricing and
allowances offered by Aduromed to any third party purchasing products and
services of a quality and quantity similar to the Products and Services
purchased by ARAMARK and its affiliates under this Agreement. Aduromed
will provide ARAMARK's auditors (while withholding the third parties'
identities) with access to those books and records of Aduromed as are
necessary or appropriate to verify Aduromed's compliance with this
Section.
4.4 "PRICING" AND "ALLOWANCES" DEFINED. For purposes of this Section:
(a) "Pricing" means the prices billed by Aduromed to ARAMARK under this
Agreement; and
(b) "Allowances" means all rebates, discounts, allowances, incentives and
other payments or other compensation offered by Aduromed to
purchasers, which, as applied to ARAMARK and its affiliates, includes
those Allowances described below in Section 7.
21-Jun-06
9
4.5 PRICING FOR PRODUCTS OR SERVICES OUTSIDE THE CONTINENTAL UNITED STATES.
Pricing for Products or Services that will be installed or delivered to
locations outside the continental United States will be determined by the
Parties' agreement and set forth in a separate amendment to this
Agreement.
5. ORDER AND DELIVERY
5.1 EQUIPMENT ORDERS. All Equipment orders must be placed by ARAMARK Supply
Chain Management with a hard copy purchase order. "Equipment" means all
Products other than Consumable Supplies.
5.2 ORDERS OF PRODUCTS OTHER THAN EQUIPMENT. For those on-site ARAMARK
Managers (and those of its affiliates) at each Participating ARAMARK
Client that order direct from Aduromed, Aduromed will supply the Products
and Services to ARAMARK and its affiliates at the Participating ARAMARK
Clients' locations, at the Discounted Prices set forth on Exhibit A,
subject to annual adjustment to the extent allowed under Section 4.2 and
Exhibit A. Participating ARAMARK Clients may place orders for Products
(other than Equipment) or Services in writing, or by telephone; and if an
order is placed by telephone, Aduromed will issue written confirmation of
such order immediately to that ARAMARK manager with a copy to ARAMARK's
Director Supply Chain Management (at the email address or fax number shown
in Exhibit H).
5.3 DELIVERY. Aduromed will ship all Products ordered F.O.B. the respective
Participating ARAMARK Client, or such other destination as ARAMARK, its
affiliate, or the on-site ARAMARK Manager at that Participating ARAMARK
Client may designate. Delivery for Products and Services will be by
standard ground carrier. Equipment will be delivered on or before the
delivery date specified in the corresponding WasteStream QL Schedule.
Products other than Equipment will be delivered within two (2) weeks after
Aduromed's receipt of the order. ARAMARK and its affiliates reserve the
right to count and inspect all Products delivered within a reasonable time
after delivery, and to return or reject for full cash refund or credit, at
ARAMARK's option, any Products that ARAMARK, its affiliates, or the
on-site ARAMARK Manager at any Participating ARAMARK Client reasonably
deems to be not in accordance with its specifications. No payment by
ARAMARK, its affiliates, or the on-site ARAMARK Manager at any
Participating ARAMARK Client will be, or will be deemed to be, a waiver of
ARAMARK's or its affiliates' right to reject Products, or as acceptance of
any Products.
6. PAYMENT TERMS
21-Jun-06
10
6.1 INVOICES. Aduromed will include one hard copy invoice per order. Invoices
will be sent to ARAMARK (at the address shown below in Section 10.5) for
all orders placed by ARAMARK Supply Chain Management personnel; and will
be sent to ARAMARK and directed to the attention of the on-site ARAMARK
Manager at the Participating ARAMARK Client for all orders placed by the
on-site ARAMARK Manager at that respective Participating ARAMARK Client,
with a copy to ARAMARK's Director Supply Chain Management (at the email
address or fax number shown in Exhibit H).
6.2 PAYMENT. ARAMARK will pay Aduromed's invoices within 45 days after the
invoice date, for all items other than Equipment. ARAMARK will pay
Aduromed's invoices for Equipment, as follows: 25% will be paid upon both
Parties' execution of the WasteStream QL Schedule, 50% will be paid upon
Aduromed's delivery of the Equipment; and the remaining 25% will be paid
on the Effective Date of the WasteStream QL Program for that particular
Participating ARAMARK Client, provided that on or before such Effective
Date the Equipment will have been fully tested by Aduromed after its
installation and that the Equipment will have passed all tests and will be
in fully operational condition before the final payment will become due.
If ARAMARK disputes an invoice, in good faith, then ARAMARK may withhold
payment of such invoice, and ARAMARK and Aduromed will use their good
faith best efforts to resolve the dispute as promptly as possible.
7. ALLOWANCES
Aduromed will pay the following Allowances to ARAMARK during the Term of
this Agreement:
*7.1 VOLUME ALLOWANCE. Aduromed will pay to ARAMARK a volume Allowance (the
"Volume Allowance") at the following rates, multiplied by total purchases
of the applicable Products and Services during each respective quarter:
VOLUME ALLOWANCE RATE
(% OF PURCHASES
PRODUCTS AND SERVICES OF PRODUCTS AND SERVICES)
--------------------------------- -------------------------
Equipment
Consumable Supplies (incl. Parts)
Maintenance
*7.2 GROWTH ALLOWANCE. Additionally, if ARAMARK's total purchases during any
single Contract Year (defined above in Section 2.2) of all Products
(including all Equipment and all Consumable Supplies) and all Maintenance
fall within the ranges shown in the first column below, then Aduromed will
pay to ARAMARK a growth Allowance (the "Growth Allowance") at
corresponding rate shown in the second column below (the "Growth Allowance
Rate"). The Growth Allowance for that Contract Year will be calculated by
multiplying the applicable Growth Allowance Rate times ARAMARK's total
purchases of all Consumable Supplies (excluding Equipment) and all
Maintenance
21-Jun-06
11
made by ARAMARK and its Participating ARAMARK Clients during that Contract
Year.
TOTAL PURCHASES GROWTH ALLOWANCE RATE
OF ALL PRODUCTS MULTIPLIED BY TOTAL PURCHASES OF ALL
(EQUIPMENT AND CONSUMABLES) CONSUMABLES
AND ALL MAINTENANCE (EXCLUDING EQUIPMENT) AND
(ANNUAL SALES PER CONTRACT YEAR) ALL MAINTENANCE
-------------------------------- ------------------------------------
For purposes of this Section, figures pertaining to purchases made by
'ARAMARK' will include ARAMARK and all ARAMARK components, affiliates,
on-site ARAMARK Managers and those of ARAMARK's affiliates, and all
Participating ARAMARK Clients.
7.3 CATCH-ALL ALLOWANCE. Additionally, for those products of Aduromed that
are substantially similar to the Products and Services but do not fall
within the technical definition of the term "Products and Services"
(whether because such products or services are introduced after the
Commencement Date of this Agreement, or otherwise) ("Catch-All Items"),
Aduromed will pay a volume Allowance (the "Catch-All Allowance") at The
Catch-All Allowance rate for each such product will be equal to the Volume
Allowance rate earned and paid on the most similar Products or Services.
Purchases of such Catch-All Items will also be counted toward the Volume
Allowance and Growth Allowance.
7.4 REPORTING OF ALLOWANCES. Within thirty (30) days after the end of each
month, Aduromed will provide to ARAMARK a report of all purchases of
Products and Services made by ARAMARK, its affiliates, all on-site ARMARK
Managers and those of ARAMARK's affiliates, and all Participating ARAMARK
Clients, from Aduromed (each, an "Aduromed Purchasing Report"). Each
Aduromed Purchasing Report will include the following information (and
such additional information which ARAMARK may reasonably request, from
time to time) for that reporting month, along with quarter-to-date and
year-to-date figures: identification of Products and Services sold by
product/model number, description, quantity, unit cost, total cost, name
of the Participating ARAMARK Client, shipping address, and order date;
together with all Allowances earned during that month and for that
Contract Year to date.
* Confidential Treatment Requested
21-Jun-06
12
Aduromed Purchasing Reports will be used to calculate Allowances earned.
On reasonable notice, Aduromed will grant ARAMARK reasonable access to
such of Aduromed's records as may be necessary to verify Products and
Services purchased.
7.5 PAYMENT OF ALLOWANCES. Within 45 days after the end of each quarter,
Aduromed will pay to ARAMARK the Volume Allowance and Catch-All Allowance
earned by ARAMARK for all Aduromed Volume Reports for that respective
quarter. Within 60 days after the end of each Contract Year, Aduromed will
pay to ARAMARK the Growth Allowance for all Aduromed Volume Reports for
that respective Contract Year. All amounts which are not paid when due to
ARAMARK under this Agreement will bear interest at the rate of 1% per
month until paid in full.
All Allowance payments will be made by check payable to ARAMARK but, at
ARAMARK's direction herein, will be made payable to ARAMARK's affiliate,
ARAMARK Food and Support Services Group, Inc., at the following address:
ARAMARK FOOD AND SUPPORT SERVICES GROUP, INC.
22nd floor
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Vice President, Finance and Allied Procurement
8. INSURANCE AND INDEMNITY
8.1 INSURANCE COVERAGE REQUIREMENTS. During the Term of this Agreement,
Aduromed, at its own expense, will carry Comprehensive General Liability
insurance (including, without limitation, coverage for the following:
Products Liability, Completed Operations, Acts of Independent Contractors
and Blanket Contractual Liability coverage) with a combined single limit
of not less than $5,000,000 per occurrence, which may be met through a
combination of primary and excess policies, for death, bodily injury,
personal injury, property damage and advertising injury, written by a
financially responsible insurance company with an A.M. Best Rating of at
least A-X. The Products Liability aspect of the Comprehensive General
Liability coverage will contain a Broad Form Vendor's Endorsement naming
ARAMARK and its affiliates as additional insureds. Additionally, Aduromed
will carry Automobile Liability insurance covering all owned, non-owned,
and hired vehicles, with a combined single limit of not less than
$1,000,000 per occurrence for death, bodily injury, personal injury, and
property damage. Aduromed shall also carry Workers Compensation insurance
with statutory limits, and Employer's Liability insurance with limits of
$1,000,000. All liability insurance policies will contain a severability
of interest or separation of insureds provision and will name ARAMARK and
its affiliates, and ARAMARK Clients, and their respective officers,
directors, employees and agents as Additional Insureds, and will stipulate
that the insurance afforded Additional Insureds under Aduromed's policies
will be primary insurance and that no other insurance carried by the
Additional Insureds will be called upon to
21-Jun-06
13
contribute to a loss covered under Aduromed's policies. All premiums,
deductibles and self-insured retentions are the responsibility of the
Aduromed.
If any required insurance is written on a claims-made basis, then Aduromed
will maintain the policies without endangering any aggregate limits. If
coverage under any such policies are cancelled, then Aduromed will
purchase extended discovery/reporting coverage to cover injuries and
claims arising out of all Products and Services provided hereunder, for at
least five years after expiration or any termination of this Agreement.
All polices will provide for 30 days' prior written notice to ARAMARK of
any pending material change or cancellation.
A Certificate of Insurance for such coverage will be delivered to ARAMARK
within 10 days after the Commencement Date of this Agreement, and Aduromed
will provide renewal or replacement certificates within 30 days prior to
expiration.
Aduromed will cause all its agents and contractors used in connection with
this Agreement to provide the same terms, conditions, kinds, and amounts
of insurance as specified herein. Aduromed will obtain Certificates of
Insurance evidencing such coverage, and will provide them to ARAMARK.
Failure to carry the specified insurance coverage will not relieve
Aduromed of responsibility for losses arising hereunder.
The insurance requirements contained herein are subject to periodic review
by ARAMARK based on the scope of Products and Services provided by
Aduromed. ARAMARK may request modifications to this Section, provided that
such modifications are commensurate with exposure and that such coverage
is available in the market at a commercially reasonable cost.
8.2 INDEMNITY. Each Party ("Indemnitor") will indemnify and hold the other
Party ("Indemnitee") harmless from any third party claim, allegation,
lawsuit, loss, liability, damage, settlement or judgment (including
reasonable attorneys' fees and court costs) imposed against Indemnitee,
its directors, officers, partners, and employees, arising out of or in
connection with the negligent acts or omissions of Indemnitor, its
employees or agents, in carrying out Indemnitor's duties under this
Agreement and all applicable WasteStream QL Schedules; provided, that this
Section will not apply if the occurrence for which Indemnitee seeks
indemnification was proximately caused by Indemnitee's sole negligence,
and that this Section will not operate to waive either Party's rights
under any worker's compensation act, disability benefits act, or other
employee benefits acts, whether in tort, contract, or otherwise.
Additionally, Aduromed (with counsel of Aduromed's choice that is
reasonably acceptable to ARAMARK) agrees to indemnify and hold ARAMARK
harmless from any third party liability (including reasonable attorneys'
fees and court costs) imposed against ARAMARK, its directors, officers,
partners, and employees, by reason of any third party claim, allegation,
lawsuit, loss, liability, damage, settlement or judgment (including
reasonable attorneys' fees and court costs) imposed against ARAMARK, its
directors,
21-Jun-06
14
officers, partners, and employees, by reason of any claim or allegation
that such loss or injury was caused, in whole or in part, arising out of
or in connection with: (1) a breach by Aduromed, its employees,
contractors, or agents, of this Agreement or any WasteStream QL Schedule;
(2) a defect in any Product supplied under this Agreement or any
WasteStream QL Schedule; or (3) the design, manufacture, preparation, or
packaging of a Product supplied under this Agreement or any WasteStream QL
Schedule.
Each Party agrees to provide the other Party with prompt written notice of
all losses or claims for which it will seek indemnity under this
Agreement. Each Party agrees to cooperate fully with the other Party in
the investigation, defense and settlement of all such losses and claims.
9. TERMINATION
9.1 TERMINATION FOR MATERIAL BREACH; CURE PERIOD. Either Party has the right
to terminate any WasteStream QL Schedule at any time, upon thirty (30)
days' written notice to the other Party, if the other Party materially
breaches any of its obligations set forth in this Agreement or that
particular WasteStream QL Schedule, and does not cure such material breach
within thirty (30) days after transmission of the notice of material
breach (the "Cure Period"). Additionally, ARAMARK has the right to
terminate this Agreement upon ten (10) days' prior written notice, upon
occurrence of any of the following events of default: (a) Aduromed's
breach of any representations and warranties contained in this Agreement
or any WasteStream QL Schedule; (b) Aduromed's failure to provide and/or
maintain the insurance required under this Agreement; (c) or Aduromed's
uncured breach of any other material provision of this Agreement.
9.2 AUTOMATIC TERMINATION OF A WASTESTREAM QL SCHEDULE UPON TERMINATION OR
EXPIRATION OF THE ARAMARK-CLIENT AGREEMENT. Notwithstanding any other
provision in this Agreement or any WasteStream QL Schedule, each
WasteStream QL Schedule will terminate automatically upon termination or
expiration of ARAMARK's own contract with that respective Participating
ARAMARK Client (the "ARAMARK-Client Agreement") or that portion of the
ARAMARK-Client Agreement through which ARAMARK provides the WasteStream QL
Program, or if that particular Participating ARAMARK Client requests
termination of Aduromed or the Products or Services that Aduromed provides
under that WasteStream QL Schedule.
9.3 EFFECT OF TERMINATION. Termination of this Agreement will terminate all
WasteStream QL Schedules contemporaneously. Termination of any WasteStream
QL Schedule will not terminate this Agreement or any other WasteStream QL
Schedules then in effect. Aduromed will not provide any new or additional
Products or Services under a particular WasteStream QL Schedule upon
receipt of a notice of termination for that WasteStream QL Schedule, and
Aduromed will not provide any new or additional Products or Services under
any WasteStream QL Schedules upon receipt of a notice of termination for
this Agreement, except to the extent that Parties may have agreed in
writing in advance of its performance.
9.4 PAYMENT OF ALLOWANCES UPON EXPIRATION OR TERMINATION. Upon expiration or
termination of this Agreement, Aduromed will pay to ARAMARK, upon demand,
all
21-Jun-06
15
Allowances earned but not paid to ARAMARK, up to and including the
termination date (the "Final Aduromed Payment"). Additionally, to the
extent ARAMARK purchases Products and/or Services from Aduromed within 120
days after the expiration or termination of this Agreement, Aduromed will
pay to ARAMARK all Allowances earned on such purchases at the Allowance
rates set forth herein (with any annual-based Allowances pro-rated for 120
days). The preceding sentence is intended to cover a reasonable quantity
of Product and/or Services inventory laid-in to ARAMARK's designated
distributors' inventory, and if Aduromed delivers direct, at Aduromed's
distribution points, as of expiration or termination of this Agreement.
ARAMARK's receipt of the Final Aduromed Payment will not limit any rights
and remedies available at law or in equity to ARAMARK, if this Agreement
is terminated by ARAMARK for Aduromed's material breach.
10. GENERAL PROVISIONS
10.1 MEDICARE/MEDICAID RECORDS INSPECTION. If any ARAMARK Client at any
Participating ARAMARK Client location is entitled to Medicaid or Medicare
reimbursement for its payments to ARAMARK, then Aduromed will comply with
records inspection regulations established by the Secretary of Health and
Human Services, by making available for inspection by the Secretary of
Health and Human Services or the Comptroller General of the United States
(or their authorized representatives) copies of this Agreement and the
corresponding WasteStream QL Schedule (including their amendments) and
Aduromed's supporting books, documents, and records to the extent
necessary to verify payments thereunder by ARAMARK and that Participating
ARAMARK Client, for a period of five (5) years before the date of such
inspection (up to and including five [5] years after expiration or
termination of the respective WasteStream QL Schedule).
10.2 ENTERTAINMENT/GRATUITIES. To retain its authorization to do business with
ARAMARK, Aduromed must comply with ARAMARK's Business Conduct Policy (the
"BCP"), as amended from time to time; and Aduromed hereby acknowledges its
receipt of the BCP before the Commencement Date of this Agreement.
10.3 AMENDMENTS. Any amendment to or modification of this Agreement and/or any
WasteStream QL Schedule must be made in writing, reviewed and approved by
ARAMARK's Supply Chain Management Department, and then signed by the same
level of authority as originally signed by both Parties.
10.4 ASSIGNMENTS. Neither Party can assign any of its rights or duties under
this Agreement or any WasteStream QL Schedule without the prior written
consent of the other Party; except that either Party, upon written notice,
will be permitted to assign any or all of its rights to receive payment
under this Agreement. Aduromed will not provide or permit the supply to
ARAMARK of any materials associated with the Products and Services that
bear a brand owned by a third party, without ARAMARK's prior written
consent, which will not be withheld unreasonably.
10.5 NOTICE. All notices that are referred to or required under this Agreement
must be in writing and sent via certified mail, return receipt requested,
or via express carrier, or via facsimile to
21-Jun-06
16
the numbers shown below (accompanied by simultaneous sending via First
Class US Mail) to the respective Parties at the following addresses (or
such other current addresses of which the Parties have given proper
notice):
Notice to Aduromed:
ADUROMED CORPORATION
000 Xxxxxxxxx Xxxxxx, Xxxxx 00-00
Xxxxxx, Xxxxxxxxxxx 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
ADUROMED CORPORATION
000 Xxxxxxxxx Xxxxxx, Xxxxx 00-00
Xxxxxx, Xxxxxxxxxxx 00000
Attn: Vice President, Business Development
Facsimile: (000) 000-0000
Notice to ARAMARK:
ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: President, Healthcare Division
Facsimile: (000) 000-0000
With a copy to:
ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: Senior Director, Supply Chain Management
Facsimile: (000) 000-0000
Notices given hereunder will be deemed to be effective as of the fifth
business day after mailing, or the third business day after delivery via
facsimile, or the date of delivery via mail that is reflected on the
return receipt, whichever occurs first.
10.6 ATTORNEYS' FEES. If either Party brings suit to enforce any provision of
this Agreement or any WasteStream QL Schedule, the prevailing Party will
be entitled to recover all reasonable costs incurred in connection with
such suit, including court costs and reasonable attorneys' fees, in
addition to any other relief or damages granted.
10.7 GOVERNING LAW. This Agreement has been entered into, and will be construed
and enforced, in accordance with the laws of the State of Pennsylvania,
without giving effect to
21-Jun-06
17
any choice or conflict of law rules. Any litigation, or arbitration or
other dispute resolution proceeding under this Agreement or any
WasteStream QL Schedule will be commenced and maintained in the U.S.
District Court, Eastern District of Pennsylvania, sitting in Philadelphia,
Pennsylvania, or if subject matter jurisdiction is lacking, in the Court
of Common Pleas, Philadelphia County, Philadelphia, Pennsylvania. The
parties waive any objection to such venue, and agree that such venue is
convenient. All Parties hereby submit voluntarily to personal jurisdiction
in the State Court located in Philadelphia, Pennsylvania, as the exclusive
forum and venue for all any disputes or legal actions that may arise under
this Agreement and/or any WasteStream QL Schedule(s). Notwithstanding the
foregoing, the Parties also agree to submit hereby to jurisdiction, venue,
and controlling laws set forth in any ARAMARK Client Agreement with
respect to any Participating ARAMARK Client on which ARAMARK and Aduromed
may have any disputes under this Agreement or the corresponding
WasteStream QL Schedule.
10.8 SEVERABILITY. If any court holds that any part, term, or provision of this
Agreement or any WasteStream QL Schedule is unenforceable, then, to the
fullest extent permitted by law, the validity of the remaining portions or
provisions will not be affected, and the rights and obligations of the
Parties will be construed and enforced as if this Agreement or WasteStream
QL Schedule did not contain that particular part, term, or provision.
10.9 WAIVER. Failure by either Party to demand strict performance and
compliance with any part of this Agreement or any WasteStream QL Schedule
will not be deemed to be a waiver of any of its rights under this
Agreement or any WasteStream QL Schedule or by operation of law. Waiver by
either Party of any breach of any portion of this Agreement or any
WasteStream QL Schedule will not operate or be construed as a waiver of
any subsequent breach of this Agreement or any WasteStream QL Schedule.
10.10 SURVIVAL. The sections of this Agreement entitled Aduromed's
Representations and Warranties; Limitation of Liability; Third Party
Software; Covenants Concerning the Parties' Employees; Confidentiality;
Proprietary Materials; Title, Property, and Work Product; Allowances;
Insurance and Indemnity; Payment of Allowances upon Expiration or
Termination; Medicare/Medicaid Records Inspection; Attorneys' Fees; and
Governing Law will survive the Term and termination of this Agreement.
10.11 CAPTIONS. The captions that appear in this Agreement and the WasteStream
QL Schedule(s) have been inserted for the purpose of convenience and ready
reference. They are not intended, and will not be deemed, to have any
substantive meaning or to define, limit, or extend the scope or intent of
any provisions of this Agreement or any WasteStream QL Schedule(s).
10.12 ENTIRE AGREEMENT. This Agreement and the WasteStream QL Schedule(s) have
been negotiated fully and equally, at arm's length, by both Parties, and
will not be construed as having been drafted by any single Party. This
fully executed Agreement, when read together with all fully executed
WasteStream QL Schedule(s), contains the Parties' entire understanding and
agreement with respect to the subject matter hereof, and supersedes all
previous agreements, oral and written.
21-Jun-06
18
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of the date
written first above.
ARAMARK MANAGEMENT SERVICES ADUROMED CORPORATION
LIMITED PARTNERSHIP
HEALTHCARE DIVISION
By its General Partner,
ARAMARK SMMS LLC
--------------------------------- -------------------------------------
Xxxx Xxx Xxxxx Xxxxxx X. Xxxxxx
President President and Chief Executive Officer
21-Jun-06
19
PRODUCTS AND SERVICES
EXHIBIT A
I. * PRICES AND ANNUAL ADJUSTMENT CAPS
ANNUAL ADJUSTMENT CAP
DESCRIPTION DISCOUNTED PRICE AFTER CONTRACT YEAR 1
-------------------------------------- --------------------------------------- ---------------------------------------
PRODUCTS
EQUIPMENT AND CONSUMABLE SUPPLIES
(PRICES INCLUDE SERVICES OTHER THAN MAINTENANCE, PRICED SEPARATELY BELOW.)
EQUIPMENT off Aduromed's Retail List Price Equipment prices will remain firm as
(shown as "Discounted Price" in Exhibit shown through 12/31/04.
(Including but not limited to: A). After 12/31/04, Equipment prices will
autoclave, shredder, tipper, conveyor, be adjusted (increased or decreased) at
carts, and all other equipment Discounted Price includes shipping to a reasonable amount, on which ARAMARK
described below in this Exhibit) destinations within the continental and Aduromed will agree, to reflect
United States; shipping costs for actual price increases or decreases
destinations outside the continental that Aduromed incurs from its own
United States will be invoiced suppliers and contractors for such
separately. Equipment.
CONSUMABLE SUPPLIES off Aduromed's Retail List Price Consumable Supplies prices will not
(shown as "Discounted Price" in Exhibit increase beyond an amount on which both
(Including but not limited to: A). Parties will agree annually, not to
liners, bags, deodorizer, replacement over their prices during the previous
parts, cart wheels, and all other Discounted Price does not include Contract Year.
consumable supplies described below in shipping, which will be invoiced
this Exhibit) separately.
MAINTENANCE SERVICES
(DESCRIPTION OF THE SCOPE OF MAINTENANCE FOLLOWS BELOW IN THIS EXHIBIT)
Maintenance will be priced at of the Maintenance Price will not increase
MAINTENANCE Discounted Price paid by ARAMARK to beyond an amount on which both Parties
Aduromed for the Equipment (resulting will agree annually, not to exceed the
(Scope described below in this in the "Maintenance Price"). following maximum annual increases over
Exhibit) the Maintenance Price during the
previous Contract Year:
o Increase for each of Years
2-4: Max. annual increase of of
the Discounted Price paid by
ARAMARK to Aduromed for the
Equipment.
o Increase for each of Years
5-10: Max. annual increase of of
the Maintenance Price during
the previous Contract Year.
FIRM PRICE FOR 120 DAYS AFTER PRESENTATION OF PROPOSAL. Notwithstanding any
other provision of this Agreement or any interim pricing adjustment otherwise
allowed to any Products and Services, Aduromed agrees to hold firm all prices
quoted in each Proposal for a minimum period of 120 days after Aduromed and
ARAMARK present that respective Proposal to the Potential Customer.
* Confidential Treatment Requested
21-Jun-06
20
MAINTENANCE SCOPE OF WORK. The WasteStream QL Program includes certain
maintenance consisting of the following scope of work ("Maintenance"), subject
to the Exclusions set forth below, which Aduromed will provide for the Equipment
during the Term of the corresponding WasteStream QL Schedule for that respective
Participating ARAMARK Client:
o PREVENTATIVE MAINTENANCE, consisting of inspection, selected parts,
and labor as identified in Subsection 1 (below in this Section), on a
quarterly scheduled basis and during the interim if usage amounts
shown in the chart below are met;
o CORRECTIVE MAINTENANCE, upon request, consisting of inspection,
selected parts, and labor as identified in Subsection 2 (below in this
Section), as necessary to restore any malfunctioning operating
component part the Equipment to proper working order.
o PRIORITY RESPONSE to requests from ARAMARK or the Participating
ARAMARK Client for corrective maintenance and/or service work.
1. PREVENTIVE MAINTENANCE. Maintenance includes "Preventive Maintenance,"
consisting of the following items that Aduromed will provide for the Equipment:
Aduromed will provide on-site Preventive Maintenance visits, at least once per
quarter (or such other frequency on which the Parties may agree for a particular
Participating ARAMARK Location and its Equipment) and during the interim if
usage amounts shown in the chart below are met, during which Aduromed will
perform routine preventive maintenance tasks (including sharpening shredder
blades) and replacement of any component parts necessary to keep the Equipment
in proper operating condition, consistent with Routine Wear. "Routine Wear"
means wear that results from correct and proper usage of the Equipment,
consistent with Aduromed's Operating Manual for the Equipment. Typical
replacement schedules for common Routine Wear items are shown below in this
chart. Components subject to Routine Wear will be replaced as needed at no
additional charge after they reach either of the following time frames or usage
amounts:
*PREVENTIVE MAINTENANCE
COMPONENT INCLUDED IN MAINTENANCE
--------- -----------------------
* Confidential Treatment Requested
21-Jun-06
21
Aduromed will train and certify a sufficient staff of on-site personnel,
provided by ARAMARK and/or the Participating ARAMARK Client, in providing
certain routine maintenance functions (as described in Aduromed's Operating
Manual for the Equipment).
2. CORRECTIVE MAINTENANCE. Maintenance includes "Corrective Maintenance,"
consisting of the following items that Aduromed will provide for the Equipment:
a. MAJOR MALFUNCTION. "Major Malfunction" is defined as when the Equipment
is incapable of performing either sterilization cycles or the destruction
process (if applicable), or any other Equipment failure effecting the
operating functions of the Participating ARAMARK Client. Aduromed will
respond to ARAMARK and the Participating ARAMARK Client within 24 hours
after Aduromed receives a request for Corrective Maintenance due to a Major
Malfunction, and will complete such repairs as soon as practicable
thereafter.
b. MINOR MALFUNCTION. "Minor Malfunction" is defined as any Equipment
malfunction other than a Major Malfunction. Aduromed will respond to
ARAMARK and the Participating ARAMARK Client between the hours of 8:00am
and 5:00pm Eastern Time, Mondays through Fridays, excluding holidays,
within 48 hours after Aduromed receives a request for Corrective
Maintenance due to a Minor Malfunction, and will complete such repairs as
soon as practicable thereafter.
3. EXCLUSIONS. Maintenance does not include repair service or costs arising out
of any of the following items:
a. Processing of any items other than Waste;
b. Failure to comply with the Participating ARAMARK Client's
responsibilities under Attachment WSQL-3;
c. Equipment operation by persons who have not been trained and certified
by Aduromed;
d. Additions or changes to, or relocation of, the Equipment after its
initial installation;
e. Labor and materials costs for replacement of parts that do not affect
the normal operation of the Equipment and are not within Routine Wear
parameters for Preventive Maintenance;
f. Negligent, willful, or intentional acts;
g. Accident, casualty, neglect, or misuse (in contrast to normal use, as
described in Aduromed's Operating Manual for the Equipment);
h. Any act or event external to the Equipment that causes, directly or
indirectly, a malfunction in the Equipment (including but not limited to:
failures or malfunctions of trunk or toll lines, cable, or other materials
connecting the Equipment to the telecommunications
* Confidential Treatment Requested
21-Jun-06
22
system of the operations telephone utility; abnormal power fluctuations; or
other external failures that affect the Equipment adversely);
i. Any use of the Equipment in combination with any other apparatus,
device, system, or supplies that have not been approved for use with the
Equipment by Aduromed.
* Aduromed will provide maintenance services for any items excluded above
from Maintenance, on a time-and-materials basis, for an additional cost of
per hour plus costs of materials.
II. PRICES FOR CONTRACT YEAR 1
Prices for Contract Year 1 are shown on the attached schedules.
* Confidential Treatment Requested
21-Jun-06
23
ADUROMED CORPORATION
CONFIDENTIAL PRICING WORKSHEET
PRICE LIST VALID 4TH QUARTER 2004
CLIENT: ARAMARK
*DISCOUNTED
COMPONENTS PRICE *RETAIL PRICE
-------------------------------------------- ----------- -------------
Model MC4- 3 Cart Autoclave
Model MC4- 4 Cart Autoclave
Model MC4- 5 Cart Autoclave
Model AVR-60 Shredder
Model AVR-50 Shredder
Model AVR-50 Shredder w/o Roll-out
Model AVR-40 Shredder
Model AVR-40 Shredder w/o Roll-out
Standard Cart Offer
Model PC Xxxxxx Condensate Cooler
Xxxx Pre/Post Vacuum System
Cart Xxxxxxx & Safety Cage
AutoTouch Printer
Siemans & CTC Controls
Electrical Controls & Components
Fit-out Control Panel
Miscellaneous Piping & Fittings
Platform Scale
Chute for Shredder Outlet
Xxxxxx for SWR-990 Shredder
Xxxxxx for SWR-1260 Shredder
Software Modification & Installation
On-Site Training and Manuals
Belt Conveyor (36")
Auger Conveyor
Exhaust Fan and Intake louvres for Enclosure
Raised Deck for Scale + guards
Operator Platform & All Supports
Rigging of Equipment into Place
Rentals
OSHPD Compliance
Additional Carts for Waste Collection
Quiet Cart Carriers
Steam Generation Unit
Portable Enclosure for Autoclave
39 Yard3 container with controls
34 Yard3 container with controls
30 Yard3 container with controls
20 Yard3 container with controls
15 Yard3 container with controls
* Confidential Treatment Requested
21-Jun-06
24
ADUROMED CORPORATION
CONFIDENTIAL PRICING WORKSHEET
CONSUMABLES PRICE LIST VALID 4TH QUARTER 2004
CLIENT: ARAMARK
*DISCOUNTED *RETAIL
SKU COMPONENTS PRICE PRICE
----------- ---------------------------------------------- ----------- -------
FDG-78-001 Deodorizer, 5 Gallon Liquid
FDG-78-200 Deodorizer, 30 Pounds Pellets
FCG-64-001 Polypropelene Cart Liners, 80 Roll - Standard
FCG-64-002 Polypropelene Cart Liners, 80 Roll - Indicator
FBG-64-005 Medical Waste Red Bag, 100 Box - Standard
FBG-64-006 Medical Waste Red Bag, 100 Box - Large
FXG-00-200 HIPAA Confidential Disposal Container
FXG-01-1QT Sharps Container, 1 Quart Disposable
FXG-00-1GAL Sharps Container, 1 Gallon Disposable
FXG-00-5GAL Sharps Container, 5 Gallon Disposable
FTG-00-100 Steris Efficacy Test Kit, 100 Units
FPG-73-001 AutoTouch Printer Ribbon
FPG-72-001 AutoTouch Printer Paper, Roll
CWG-67-001 Transportation Cart Wheels, Standard
CWG-67-002 Transportation Cart Wheels, WhisperWheel
PC4-108-04 MC4 Seal Gasket
PC5-108-05 MC5 Seal Gasket
* Confidential Treatment Requested
21-Jun-06
25
ADUROMED RESPONSIBILITIES
EXHIBIT B
Aduromed's Services include providing the following items (in addition to those
Services identified in Section 1.1 of this Agreement):
1. PRELIMINARY, PRE-SALES SITE VISIT. Aduromed will conduct a preliminary,
pre-sales site visit rough cut to determine potential installation
configurations and potential build-out requirements. These visits will be
conducted by Aduromed sales personnel and are only provided to obtain an idea of
general layout possibilities and possible equipment configurations.
2. PRE-INSTALLATION ENGINEERING INSPECTION. Aduromed will complete a
pre-installation engineering inspection within a timely manner from when the
commitment is received for purchase.
3. PRODUCTS AND SERVICES. Aduromed will furnish all Products and Services
(including equipment) quoted and agreed to in the bid document based on input
from ARAMARK and the ARAMARK Client, and subsequent site visits.
4. PLANNING AND INSTALLATION OF EQUIPMENT. Aduromed will work with ARAMARK and
the ARAMARK Client's own staff to ensure that required equipment specification
elements are planned and implemented properly.
5. TECHNICAL AND ENGINEERING ASSISTANCE. Aduromed will provide technical and/or
engineering information pertaining to all Aduromed Equipment to ARAMARK and the
ARAMARK Client's staff in building projects directly affecting the Aduromed
MedClean installation.
6. PERMITS. Aduromed will assist ARAMARK and the ARAMARK Clients with obtaining
proper permits to treat Waste on-site.
7. FEDERAL, STATE, AND LOCAL CERTIFICATION. Aduromed will obtain proper federal,
state, and local certification from governing agencies to ensure that Aduromed's
MedClean System is approved for operation on-site at the ARAMARK Client's
location.
8. ACCEPTANCE AS MUNICIPAL SOLID WASTE. Aduromed will work with ARAMARK's or the
ARAMARK Client's waste hauler to enable Waste treated by Aduromed MedClean
System will be accepted as municipal solid waste by landfill or other means of
final disposal.
9. CHANGE ORDERS. Aduromed will provide change orders where appropriate to
update ARAMARK and the ARAMARK Client of changes necessary to complete
functional installation of equipment for the Aduromed MedClean System.
21-Jun-06
26
10. CAD DRAWINGS AND OPERATIONS MANUAL. Aduromed will deliver to ARAMARK, for
each Participating ARAMARK Client, a complete CAD drawings of final layouts of
equipment in selected area(s) and an Operations Manual describing detailed
specifications and proper use of each component.
11. TIMELINES; STATUS MEETINGS. Aduromed will communicate installation timelines
and expected delivery dates for equipment ordered and will conduct scheduled
status meetings acceptable to ARAMARK and the ARAMARK Client.
12. REGULATED MEDICAL WASTE OPERATIONS PLANNING GUIDE. Where appropriate,
Aduromed will provide a Regulated Medical Waste Operations Planning Guide for
compliance with state regulations and/or JCAHO Environment of Care Elements of
Performance.
13. UTILITY CONNECTIONS. Aduromed will complete utility connections within the
proposed sterilizing room/area as indicated in Equipment layout drawings, as
prepared and submitted by Aduromed for [Client].
14. OPERATOR TRAINING AND INITIAL MAINTENANCE CERTIFICATION. Aduromed will
conduct all operator training and initial maintenance certification of all
personnel charged with responsibility for the Aduromed MedClean System.
15. PUBLIC RELATIONS AND MEDIA MATERIAL. Aduromed will assist ARAMARK and the
ARAMARK Client with public relations and media material to communicate solution
benefits and responsible disposal practices of selecting an Aduromed solution.
*16. CONTACT INSTRUCTIONS FOR SERVICE CALLS AND EMERGENCY REPAIRS. Aduromed will
provide key personnel (including but not limited to ARAMARK's and all persons
identified in Exhibit H of this Exhibit) with contact instructions for
scheduling service calls and emergency repair visits.
17. SUPPLY, INSTALLATION, AND START-UP OF EQUIPMENT. Aduromed will be
responsible for the supply, installation, and start-up of all Equipment listed
in the proposal for each Participating ARAMARK Client.
18. QUALITY CONTROL. Upon request, Aduromed will provide quality control
monitoring for individual loads for each Participating ARAMARK Client, and will
provide remote quality control data and, where possible, remote corrective
actions for same. Aduromed will notify ARAMARK and the respective Participating
ARAMARK Client immediately, if Aduromed receives any monitoring information of
any Equipment malfunction or rejected load for that particular Participating
ARAMARK Client. Aduromed will also provide ARAMARK with summary quality control
reports for each Participating ARAMARK Client on a monthly basis (or such other
frequency on which both Parties may agree), and further follow up reports upon
request by ARAMARK or the Participating ARAMARK Client.
* Confidential Treatment Requested
21-Jun-06
27
JOINT MARKETING PROCEDURES
EXHIBIT C
Joint marketing procedures, through which the Parties will evaluate and
participate together in business opportunities involving the Products and
Services and the ARMARK WasteStream QL Program, are set forth below in this
Exhibit.
Aduromed will not solicit any ARAMARK Client or Participating ARAMARK Client
without ARAMARK's participation, and will not provide any Products and Services
for any ARAMARK Client or Participating ARAMARK Client until ARAMARK and
Aduromed have executed a WasteStream QL Schedule for that particular ARAMARK
Client or Participating ARAMARK Client.
The Parties agree to proceed as follows in marketing the Products and Services
and the ARMARK WasteStream QL Program:
*1. EXCLUSIVE DEALINGS WITH ARAMARK; RESTRICTIVE COVENANT. Aduromed covenants
and agrees that as soon as the Parties reach the "Exclusive Threshold"
(defined below in this Section), and then for the remaining Term of this
Agreement (as amended), that Aduromed, directly or indirectly, will not
solicit (by bid, proposal, offer, or otherwise) or provide Products or
Services of the general nature described in Section 1 of this Agreement,
directly or indirectly, to or on behalf of any competitors of ARAMARK in
the outsourced management services industry or their clients (including but
not limited to competitors such as), or to any general purchasing
organization or its members, except those Participating ARAMARK Clients as
to which ARAMARK and Aduromed enter into WasteStream QL Schedules under
this Agreement.
The "Exclusive Threshold" is defined as the aggregate of all projected
revenues (calculated at ARAMARK's Discounted Price) of all Equipment
purchased at all WasteStream QL Schedules entered under this Agreement of
in the aggregate beginning on the Commencement Date, or of all projected
revenues during any consecutive 12-month period, whichever comes first.
Further, Aduromed agrees that during the Term of this Agreement (as
amended) and a period of year thereafter, Aduromed, directly or indirectly,
will not solicit (by bid, proposal, offer, or otherwise) or provide
Products or Services of the general nature described in Section 1 of this
Agreement to any entity that was a Participating ARAMARK Client or which
ARAMARK had identified as a potential or target client during the Term of
this Agreement, regardless of whether or not the Exclusive Threshold has
been reached.
Aduromed acknowledges and agrees that any breach or threatened breach by
Aduromed of this Section would cause irreparable damage and harm to
ARAMARK, which would be difficult to ascertain. Accordingly, ARAMARK will
be entitled to seek injunctive or other
* Confidential Treatment Requested
21-Jun-06
28
equitable relief, if ARAMARK so elects, in addition to any other remedies
available to ARAMARK at law or in equity.
2. EXCLUSIVE DEALINGS WITH ADUROMED; RESTRICTIVE COVENANT. Subject to Sections
3 and 4, below, ARAMARK covenants and agrees that as soon as the Parties
reach the Exclusive Threshold (defined above), and then for the remaining
Term of this Agreement (as amended), that ARAMARK, directly or indirectly,
will not solicit (by bid, proposal, offer, or otherwise) or provide the
WasteStream QL Program to any ARAMARK Clients except those Participating
ARAMARK Clients as to which ARAMARK and Aduromed enter into WasteStream QL
Schedules under this Agreement (subject to Section 1.15 of this Agreement).
ARAMARK acknowledges and agrees that any breach or threatened breach by
ARAMARK of this Section would cause irreparable damage and harm to
Aduromed, which would be difficult to ascertain. Accordingly, Aduromed will
be entitled to seek injunctive or other equitable relief, if Aduromed so
elects, in addition to any other remedies available to Aduromed at law or
in equity.
3. POTENTIAL CUSTOMER: NOTICE AND ACCEPTANCE PROCEDURE; WAIVER AND EXCEPTIONS.
3.1 RIGHT OF FIRST REFUSAL. Aduromed hereby grants to ARAMARK a right of first
refusal to engage with Aduromed to provide the Products and Services
described in Exhibit A before Aduromed, on and after the Commencement Date,
solicits or engages directly any new potential Aduromed clients whose
Housekeeping/EVS and Plant Operations and Maintenance Departments are not
managed by an outsourced management services provider (each, an "Aduromed
Independent Potential Client"), and ARAMARK and Aduromed agree that
Aduromed will be free to solicit and/or engage directly a particular
Aduromed Independent Potential Client if ARAMARK has confirmed by notice to
Aduromed within the Acceptance Period (as set forth below in Section 3.2)
that ARAMARK has decided not to participate in soliciting or engaging that
respective Aduromed Potential Client.
3.2 POTENTIAL CUSTOMER; NOTICE TO ADUROMED; ACCEPTANCE PERIOD. At least thirty
(30) days before entering into a potential contract or amendment to provide
WasteStream QL Program to an existing or potential ARAMARK Client or an
Aduromed Potential Client (defined above in Section 1.3 of this Agreement)
(each, a "Potential Customer") or such shorter time as ARAMARK or Aduromed
may have to respond to the Potential Customer (the "Acceptance Period"),
ARAMARK (in the case of an existing or potential ARAMARK Client) or
Aduromed (in the case of an Aduromed Potential Client) will give the other
Party notice of the Potential Customer's interest in the WasteStream QL
Program (a "Potential Customer Notice"), with sufficient specificity for
the receiving Party to develop a written description of the scope of work
and corresponding financial detail (a "Proposal"). The Proposal will
confirm the receiving Party's acceptance of the potential project within
the scope of work described in the Potential Customer Notice and the terms
of this Agreement. Afterwards, ARAMARK and Aduromed will complete and
execute a WasteStream QL Schedule, and then will proceed to negotiate
jointly with that Potential Customer to complete any other supporting
documents, subject to Sections 3 and 4, below.
21-Jun-06
29
Aduromed will not approach or solicit any ARAMARK Client or potential
ARAMARK Client during the Term of this Agreement, without prior approval of
ARAMARK's President.
3.3 FIRM PRICE FOR 120 DAYS AFTER PRESENTATION OF PROPOSAL. Notwithstanding any
other provision of this Agreement or any interim pricing adjustment
otherwise allowed to any Products and Services, Aduromed agrees to hold
firm all prices quoted in each Proposal for a minimum period of 120 days
after Aduromed and ARAMARK present that respective Proposal to the
Potential Customer.
3.4 WAIVER. ARAMARK will be entitled to provide a Potential Customer with
WasteStream QL Program either directly (without using Aduromed) or
indirectly (by referring that Potential Customer to any provider of
WasteStream QL Program other than Aduromed) if any of the following events
occur:
(a) At any time before the Exclusive Threshold is reached, subject to the
right of first refusal described above in Section 3.1;
(b) If Aduromed notifies ARAMARK that Aduromed does not desire to
participate, after having received a Potential Customer Notice;
(c) If Aduromed fails to respond to ARAMARK by providing a complete
Proposal within the Acceptance Period;
(d) If ARAMARK is advised by the Potential Customer that the Potential
Customer is subject to a preferred provider, system, GPO, or other
obligations to give preference to providers other than Aduromed;
(e) If ARAMARK is advised by the Potential Customer that the Potential
Customer does not want to participate with Aduromed;
(f) If Aduromed's services are terminated as to that Potential Customer or
as to this Agreement (as set forth above in Section 9 of this
Agreement); or
(g) If that WasteStream QL offering does not involve the use of Aduromed
Equipment (as set forth in Section 1.15 of this Agreement).
4. PARTICIPATING ARAMARK CLIENT CONSENT. ARAMARK and Aduromed acknowledge and
agree that even if either Party completes a Proposal and a WasteStream QL
Schedule under Section 1 and Aduromed's preferred provider status is not
waived under Section 3.4, that no contract or other obligation will result
between ARAMARK and Aduromed unless and until the Potential Customer
actually enters into a signed contract or amendment with ARAMARK for the
WasteStream QL Program during the Term of this Agreement.
5. MARKETING COSTS. Each Party will bear its own respective marketing costs
associated with this Agreement and any joint marketing activities
thereunder; except to the extent to which both Parties may agree to share
certain particular marketing costs on a specific project as will be set
forth in a separate writing and authorized by the Parties' respective
Presidents.
6. WEBSITE AND OTHER MARKETING MATERIALS. The Parties anticipate that they may
develop a website and/or other marketing materials as joint marketing tools
in the future (collectively, "Joint Marketing Tools"); and, if so, the
Parties agree in advance:
21-Jun-06
30
(a) that ARAMARK will be the exclusive owner of all property rights to any
such website (including but not limited to its URL address) and other
Joint Marketing Tools, subject to Section 6(c) below;
(b) that ARAMARK will remain the exclusive owner of all trademarks,
servicemarks, and logos of ARAMARK and the WasteSteam QL brand names
that may be used on and in any such website and other Joint Marketing
Tools;
(c) that Aduromed will remain the exclusive owner of all trademarks,
servicemarks, and logos of Aduromed that may be used on and in any
such website and other Joint Marketing Tools;
(d) that any such website and other Joint Marketing Tools will feature a
uniform "look" and substantive information on which both Parties will
agree in advance before their publication or distribution to third
parties; and
(e) that all costs associated with any such website and other Joint
Marketing Tools are subject to the general provisions set forth above
in Section 5 of this Exhibit.
21-Jun-06
31
*FORM FOR
WASTESTREAM QL SCHEDULES
EXHIBIT D
SCHEDULE #_____ (REV.__/__/__)
ARAMARK and Aduromed agree to provide the WasteStream QL Program to the
following Facilities, based upon the terms shown below and those set forth in
the Master Agreement between ARAMARK and Aduromed:
Participating ARAMARK Client: Name: ______________________________________
Address:
____________________________________________
Key Contact: _______________________________
Effective Date of WasteStream QL Program (Equipment
Installation Completion Date):
WasteStream QL Products and Services: Description Price to Client
----------- ---------------
o Equipment
o Capital Investment by ARAMARK? YES NO
o Consumable Supplies
o Maintenance
Name: ______________________________________
Address:
____________________________________________
Name: ______________________________________
Address:
Location(s) of Facilities Included ____________________________________________
Name: ______________________________________
Address:
____________________________________________
Name: ______________________________________
Address:
____________________________________________
Baseline Waste Volume ___________ unprocessed pounds per year
Engineering, Construction, and other Installation Costs:
Other (specify):
Agreed:
ARAMARK MANAGEMENT SERVICES LIMITED ADUROMED CORPORATION
PARTNERSHIP
HEALTHCARE DIVISION
By its General Partner,
ARAMARK SMMS LLC
Date: ________ Date: _________
---------------------- ------------------------
Xxxx Xxx Xxxxx Xxxxxxx X. Xxxxx
President Vice President, Business Development
21-Jun-06
32
FULLY EXECUTED
WASTESTREAM QL SCHEDULES
GROUP EXHIBIT E
Each WasteStream QL Schedule, upon execution by ARAMARK, Aduromed, and the
Participating ARAMARK Client, will be incorporated as part of this Agreement and
attached as Group Exhibit "E" (with WasteStream QL Schedules for each successive
Participating ARAMARK Client being identified therein as "Schedule #1,"
"Schedule #2," "Schedule #3," and so on).
21-Jun-06
33
CUSTOMER RESPONSIBILITIES
EXHIBIT F
Aduromed's "Customer Responsibilities," modified with the Parties' consent for
purposes of this Agreement and offerings to ARAMARK Potential Locations
hereunder, is attached.
21-Jun-06
34
[CLIENT]'S RESPONSIBILITIES
ATTACHMENT WSQL-3
[Client] agrees to provide the following building systems, utilities, and other
items identified below in connection with the WasteStream QL Program, throughout
the WSQL Term, consistent with specifications and requirements outlined below
and in ARAMARK's proposal for the WasteStream QL Program, at no cost to ARAMARK:
1. Provide a clear and clean, well-lit area with a reasonable level concrete
or other type of flooring or yard for the installation of the system,
consistent with specifications that ARAMARK has outlined in its proposal
(including but not limited to any operator platforms required for
mono-level operation from the hospital corridor level into the medical
waste processing room per layout requirement, unless otherwise provided for
specifically in this Exhibit).
2. Provide electrical power at the required voltage and in the required
capacity with feed and fused disconnect within the room/area and complete
the final hook up to various equipment control panels.
3. Provide 1 1/2 inch steam line from facility at between 75 to 85 PSI for the
supply line and complete the final hook up to the steam inlet valve of the
autoclave vessel.
4. Provide city water source complete with an anti-siphon device as required
within the sterilizing room and complete the hook-up to process machinery
complete with a valve for isolation of the water supply during maintenance
of equipment.
5. Provide a sanitary sewer line located within the proposed sterilizing
room/area as indicated in equipment layout drawings, as prepared and
submitted by ARAMARK to [Client].
6. Provide vent lines from the sterilizing room/area with the end of the vent
pipe outlet located so that exterior venting of the autoclave during
depressurization can occur safely, as indicated in drawings of a suggested
vent pipe arrangement and other related drawings prepared and submitted by
ARAMARK to [Client].
7. Provide clear access for delivery and placement of the equipment
components, as well as, an access door/area large enough to accommodate the
largest equipment component for the installation, including free movement
of material handling equipment such as cranes and fork lift operation as
required.
8. Receive, off-load and provide for safe storage, various component pieces
that may arrive at the installation site prior to the commencement of
installation.
9. Provide personnel for operational and maintenance training during and
immediately following installation and start-up of the system.
21-Jun-06
35
10. Provide any building alterations if and as required (including weather
covering over the cart xxxxxxx, and shredder/sizer unit and the charging
chute area of the compacting container, as will be illustrated in the
proposed system layout when the area of installation is identified). The
covering should extend over the open charging chute of the compacting
container to keep residue from inclement weather from entering into the
compacting container that will impact the disposal cost of the processed
Waste.
11. Provide an exhaust outlet from the exhaust hood located just above the door
opening of the autoclave vessel to atmosphere.
12. Provide a self-contained compacting container to receive sterilized and
shredded Waste (unless otherwise provided for in this Exhibit).
13. Provide a concrete pad and install the proper guides and bullards for the
safe and repeatable placement of the compacting container in its proper
position for safe and clean operation of the system (unless otherwise
provided for in this Exhibit).
14. Provide staff for operating the Equipment who have been trained and
certified by Aduromed, and not allow anyone to operate the Equipment if
they have not been trained and certified by Aduromed.
15. Provide Aduromed with on-site access to the Equipment, as necessary for its
installation, training sessions, Maintenance, and otherwise as reasonably
requested by Aduromed.
16. Provide Aduromed with electronic and telephonic communication from the
Equipment to Aduromed's off-site monitoring system.
21-Jun-06
36
STANDARD CONDITIONS OF SALE
EXHIBIT G
Aduromed's "Standard Conditions of Sale," modified with the Parties' consent for
purposes of this Agreement and offerings to ARAMARK Potential Locations
hereunder, is attached.
21-Jun-06
37
STANDARD CONDITIONS OF SALE
ATTACHMENT WSQL-1A
[Client]'s purchase of the Equipment is subject to certain "Standard Conditions
of Sale" by its distributor, Aduromed Corporation ("Aduromed), as set forth in
set forth below. The Standard Conditions of Sale include Aduromed's agreement to
extend directly to [Client] certain limited warranties for the Equipment, to the
extent set forth below.
1. PURCHASE AND SALE. On or before the Effective Date of the WasteStream QL
Program, of which these Standard Conditions of Sale are made a part by [Client],
Aduromed Corporation ("Aduromed"), through ARAMARK, shall sell and [Client]
shall purchase the equipment described in Attachment WSQL-1 (the "Equipment"),
in accordance with all the terms and conditions hereinafter set forth as well as
with all if the other provisions of Exhibit WSQL and the underlying agreement
between [Client] and ARAMARK (the "Agreement"). Except where the context
requires otherwise, the terms "herein," "hereof," "hereunder," and other words
of similar import refer to Exhibit WSQL and its Attachments as a whole, and not
to any particular article, section, paragraph, clause, attachment or other
subdivision thereof.
2. SALE PRICE AND PAYMENT TERMS. The sale price of the Equipment does not
include any applicable sales, use, excise or other similar taxes imposed by any
federal, state, local or other taxing jurisdiction. If any such taxes are
imposed with respect to the sale of the Equipment, [Client] shall pay the same.
ARAMARK or Aduromed may require that [Client] pay such taxes directly, or in the
alternative ARAMARK or Aduromed may pay the taxes due on behalf of [Client] and
obtain reimbursement from [Client] immediately upon demand. The terms of payment
of the sale price of the Equipment are as set forth in Exhibit WSQL. All
payments must be made promptly when due.
3. DELIVERY AND RISK OF LOSS. Any delivery made within 30 days after the
Effective Date of the WasteStream QL Program is to be deemed to be timely.
Subject to the Force Majeure provisions of Paragraph 7 below, if Aduromed fails
timely to deliver any of the Equipment, [Client] may cancel that portion of the
Equipment which has been delayed, such right of cancellation being [Client]'s
sole remedy for Aduromed's failure or delay in making delivery. Risk of loss and
damage to the Equipment will automatically be transferred and will pass from
Aduromed to [Client] upon delivery or tender of the Equipment at the F.O.B.
place of delivery specified in Attachment WSQL-1. Except to the extent provided
to the contrary in Paragraph 7 below, no loss, destruction or other material
damage to the Equipment will relieve the party bearing the risk of loss and
damage from fully performing its obligations hereunder.
4. INVOICES. The Equipment may be delivered, at the discretion of Aduromed, in
several lots under separate invoices.
21-Jun-06
38
5. WARRANTIES.
(A) LIMITED WARRANTY OF EQUIPMENT MANUFACTURED BY ADUROMED. Subject to the
limitations hereinafter set forth, Aduromed warrants to [Client] that all items
of the Equipment manufactured by Aduromed will be free from defects in material
and workmanship under normal use and service for a period of 1 1/2 years (i.e.,
18 months) after the Effective Date of the WasteStream QL Program (for all
Equipment other than the Vessel), and for a period of 5 1/2 years (i.e., 66
months) after the Effective Date of the WasteStream QL Program (for the Vessel,
only); provided, however, that: (i) the Equipment must at all times have been
operated in accordance with Aduromed's operating instructions and in accordance
with the conditions for which the same are designed and (ii) no operations or
substitutions have been made in the Equipment. [Client] shall make all claims of
any nature whatsoever for breach of the foregoing limited warranty, regardless
of whether a defect is patent, or latent, by written notice to Aduromed within
10 days after buyer discovers such defect, setting forth in detail the nature of
defect. [Client]'s right to make claims for breach of said limited warranty will
terminate upon the expiration of such notice period, and all claims for defects
will thereafter be barred. Upon [Client]'s making a satisfactory written proof
of claim with Aduromed, Aduromed may fully discharge its obligations under this
limited warranty by making any necessary repairs or, at Aduromed's option,
supplying replacement parts within a reasonable period of time thereafter, all
at Aduromed's expense. No payment or allowance will be made for labor costs,
parts, or other charges of [Client]'s or of third parties for making repairs or
replacements nor will Aduromed accept Equipment returned for credit, unless
written authorization is obtained in advance from Aduromed.
(B) LIMITED PATENT WARRANTY RESPECTING EQUIPMENT MANUFACTURED BY ADUROMED.
Aduromed shall defend at its expense, any suit or proceeding brought against
[Client] which asserts any claim that any Equipment manufactured by Aduromed
infringes any United States Patent which was issued as of the Effective Date of
the WasteStream QL Program, and Aduromed shall pay any damages and costs awarded
therein against [Client] up to but not to exceed the aggregate amount of the
sale price of the infringing Equipment theretofore paid by [Client] to Aduromed;
provided, however [Client] must give Aduromed written notice of any such claim
within 10 days after [Client] is notified thereof; and provided further that
[Client] must thereafter fully cooperate with Aduromed and give Aduromed all
authority, information and assistance as [Client] is able to give in order to
allow Aduromed to conduct such defense effectively and efficiently. If the use
of any of the Equipment is enjoined as a result of any such suit, Aduromed
shall, at its option and at its expense, produce for [Client] the right to use
such Equipment, or modify the infringing Equipment so that it no longer
infringes any United States Patent, or replace the infringing Equipment with
non- infringing Equipment or refund the portion of the sale price attributable
to the infringing Equipment.
6. LIMITATIONS OF WARRANTIES, REMEDIES AND OBLIGATIONS. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, THE EQUIPMENT IS BEING SOLD AS-IS AND SELLER MAKES NO
WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE EQUIPMENT, ORAL OR
WRITTEN, EXPRESSED OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, THOSE OF
MERCHANTABILITY AND FITNESS OF USE FOR A PARTICULAR PURPOSE); AND SELLER HEREBY
DISCLAIMS ANY WARRANTY NOT EXPRESSLY SET FORTH HEREIN. SELLER'S ONLY OBLIGATIONS
21-Jun-06
39
FOR BREACH OF WARRANTY ARE AS SET FORTH HEREIN. SELLER WILL NOT BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING
IN CONNECTION WITH THE EQUIPMENT, OR IN CONNECTION WITH SELLER'S PERFORMANCE OR
BREACH OF ITS OBLIGATIONS HEREUNDER, REGARDLESS OF WHETHER BASED IN CONTRACT, IN
TORT (INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, PLANT DOWN TIME, LOSS OF
OTHER EQUIPMENT AND CLAIMS, SUITS AND DAMAGES OF THIRD PERSONS, EXCEPT FOR U.S.
PATENT INFRINGEMENT CLAIMS AS SET FORTH IN CLAUSE (B) OF PARAGRAPH 5 ABOVE). IN
NO EVENT WILL SELLER'S LIABILITY FOR PERFORMANCE OR BREACH OF ANY ITS
OBLIGATIONS HEREUNDER EXCEED THE AMOUNT OF THE SALE PRICE THERETOFORE PAID BY
BUYER TO SELLER. SELLER NEITHER ASSUMES NOR AUTHORIZES ANYONE TO ASSUME FOR IT
ANY OTHER OBLIGATION OR LIABILITY OF ANY NATURE WHATSOEVER OR TO MAKE ANY
ADDITIONAL REPRESENTATION OR WARRANTY NOT HEREIN CONTAINED RESPECTING THE
EQUIPMENT OR SELLER'S OBLIGATIONS.
By way of illustration, and not in limitation of the foregoing, no
communication, representation, or statement made by any sales agent or
representative of Aduromed respecting the performance or operation of the
Equipment, or otherwise, is binding upon Aduromed (the sole and exclusive
warranties, representations and obligations of Aduromed being set forth herein).
Aduromed neither undertakes nor has any obligation to obtain permits, licenses
or approvals from any governmental authorities or agencies concerning the
Equipment of concerning the installation, operation or use thereof. Only such
safety devices as are specified in Attachment WSQL-1 will be furnished by
Aduromed to [Client]. [Client], at its expense, shall obtain and install all
other safety devices required or desirable due to the nature of the Equipment or
due to [Client]'s operation of the Equipment. Aduromed hereby disclaims, and
[Client] hereby releases Aduromed from, all liability arising out of the
improper use of the Equipment or from the absence of proper safety devices
respecting the Equipment. In no event will Aduromed be liable for any claim,
loss, damage or expense arising out of the sale or contributory or comparative
negligence of [Client], its employees, agents, engineers, architects, or other
contractors, and [Client] shall indemnify, defend and save Aduromed harmless
therefrom (including, but not limited to, payment of Aduromed's court costs and
reasonable attorneys' fees).
7. FORCE MAJEURE RESPECTING DELIVERIES BY SELLER. All deliveries by Aduromed are
contingent upon Aduromed's receiving necessary materials, parts, and components
for its manufacture, assembly or supply of the Equipment to [Client]; and
Aduromed's deliveries to [Client] may be delayed, reduced or canceled to the
extent affected by delay, reduction or cancellation of shipments thereof from
Aduromed's suppliers. Aduromed will not be liable for any default, delay,
reduction of failure in delivery attributable thereto or attributable to
strikes, lock-outs, disputes or disagreements resulting in labor stoppages,
plant shutdowns or slowdowns at the facilities of Aduromed or elsewhere,
government regulations, embargo, lack or failure of shipping facilities,
military service, war, delays by carriers, casualties, fires, earthquakes,
floods, storms, explosions, epidemics, civil commotion or disturbances, acts of
God or any other causes or conditions, whether similar or dissimilar to those
enumerated, beyond the reasonable control and without the negligence of
Aduromed. In such circumstances the time for delivery by Aduromed will be
extended automatically for the period of time Aduromed is delayed as a result
thereof.
21-Jun-06
40
8. MISCELLANEOUS. All rights and remedies of Aduromed, whether provided for
herein, or conferred by law or in equity, by statute, or otherwise, are
cumulative and not alternative, and can be enforced successively or
concurrently. This Attachment WSQL-1A cannot be amended except by a subsequent
writing signed by Aduromed. Aduromed will not be deemed to have waived any of
its rights or remedies hereunder unless such waiver is in writing and signed by
Aduromed. No delay or omission by Aduromed in exercising any of its rights or
remedies is to be deemed to be a waiver thereof, and a waiver in writing on one
occasion will effective only in that specific instance and only for the precise
purpose for which given. All communications pertaining to this Attachment
WSQL-1A must be in writing, with delivery by U.S. Mail, first class, certified,
return receipt requested, postage prepaid, to the parties at the addresses shown
below, and will be deemed to have been delivered three days after being so
posted:
If to [Client]:
[CLIENT-FULL LEGAL NAME]
______________________________
______________________________
Attn: ________________________[IDENTIFY BY TITLE]
If to Aduromed:
ADUROMED CORPORATION
000 Xxxxxxxxx Xxxxxx, Xxxxx 00-00
Xxxxxx, Xxxxxxxxxxx
00000
Attn: President
With copies to:
ADUROMED CORPORATION
000 Xxxxxxxxx Xxxxxx, Xxxxx 00-00
Xxxxxx, Xxxxxxxxxxx
00000
Attn: Vice President, Business Development
And to:
ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP
Attn: President, Healthcare Division
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
21-Jun-06
41
And to:
ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP
Attn: Regional Vice President
Midwest Region
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Northeast Region
000 Xxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
South Region
0000 Xxxxxxxxx Xxxxxxxx Xxxx XX
X-000
Xxxxxxx, Xxxxxxx 00000
Mid-South Region
00000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Southwest Region
0000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Mid-Atlantic Region
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
West Region
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
None of [Client]'s obligations hereunder may be assigned or delegated without
the prior written consent of Aduromed and ARAMARK. All of the provisions hereof
will be binding upon and will inure to the benefit of [Client], Aduromed, and
ARAMARK, and their respective successors and permitted assigns. The terms of
this Attachment are subject to all "Miscellaneous" or "General Provisions" set
forth in the underlying Agreement between [Client] and ARAMARK.
21-Jun-06
42
*SAFETY STANDARDS FOR SUPPIERS TO ARAMARK
(CURRENT AS OF 9/1/04, SUBJECT TO REVISION)
EXHIBIT H
A. All Suppliers must establish and administer a documented Product Safety
and Recall Program that can track specific production lots of products and
destinations, and incoming raw materials and finished products, ensuring
appropriate "track-ability." Mock recalls should be conducted every six months
to assess the effectiveness of such program. For manufacturers, the program will
include both incoming raw materials and finished products.
B. The following ARAMARK personnel must be notified when a recall occurs:
Notice will be given by fax at 000-000-0000 and email as above, within 24 hours.
Notice by fax and email will be effective only upon confirmation of receipt from
ARAMARK.
C. All ARAMARK components that have received recalled product must be
notified within 24 hours, by fax or telephone. The recall notice must identify
the product, and will include all lot or code numbers, product disposition
information, and such other information as may be required by law or regulation
or which is customarily included in recall notices. All recall information must
be to the attention of the component manager.
* Confidential Treatment Requested
21-Jun-06
43
CONFIDENTIALITY AGREEMENT
EXHIBIT I
A copy of the Confidentiality Agreement executed by the Parties before the
Commencement Date of this Agreement is attached.
EXHIBIT I
21-Jun-06
44
ADUROMED
September 15, 2005
Aduromed
000 Xxxxxxxxx Xxxxxx
Xxxxxx. XX 00000
Attention: Xxxxxxx Xxxxx
Senior Vice President, Business Development
Dear Xx. Xxxxx:
ARAMARK Management Services Limited Partnership, and/or its affiliates and
subsidiaries (collectively, "ARAMARK"), and Aduromed each will be providing the
other party certain information regarding the disclosing party's business (the
"Business") in connection with our mutual consideration of a possible business
transaction. Prior to furnishing such information, each party agrees to treat
confidentially such information furnished to the other party (the "Evaluation
Material").
Each party hereby agrees that the Evaluation Material furnished to it
(including any analysis or other documents incorporating any of the Evaluation
Material will not be used by it or its agents (including its counsel
accountants, Appraisers and investment bankers) in any was commercially
detrimental to the other party and that such information will be kept
confidential by it and its directors, officers, employees, advisors and agents
who need to know such information for the purpose of evaluating the possible
transaction. If negotiations relating to the possible transaction referred to
above are discontinued, each party will return the original of the Evaluation
Material to the other party and will destroy or cause to be destroyed all copies
and all analyses and other documents incorporating any of the Evaluation
Material furnished to it.
The term "Evaluation Material" does not include information which (i) is or
becomes generally available to the public (other than through any action by the
party being furnished such material or its agents in violation of this
agreement); (ii) available to such party on a non-confidential basis prior to
Aduromed
Page 2
21-Jun-06
45
September 15, 2003
its disclosure to such party by the other party, or (iii) becomes available to
such party on a non-confidential basis from a source other than the other party.
In addition, except as may be required by law or by the rules of any
securities exchange, or as may be authorized with the prior written consent of
the other party, neither party nor any of its directors, officers, employees,
advisors or agents will disclose to any person either the fact that discussions
or negotiations are taking or have taken place concerning possible transactions
between the parties or any of the terms, conditions or other facts with respect
to any such possible transaction, including the status thereof.
Each party agrees that neither party not any of its employees or agents
have any liability to the other party or any of its agents or employees
resulting from their use of the Evaluation Material. Each party understands that
no representation or warranty as to the accuracy or completeness of the
Evaluation Material is being made. Only those representations or warranties that
are made to party in a definitive agreement when, as, and if it is executed, and
subject to such limitations and restrictions as may be specified in such
agreement, will have any legal effect.
Each party agrees to be responsible for enforcing the confidentiality of
the Evaluation Material and agrees to take such action, legal or otherwise, to
the extent necessary to prevent any disclosures by any of its representatives of
the Evaluation Material. It is further understood and agreed that money damages
would not be a sufficient remedy for any breach of this agreement and that the
enforcing party shall be entitled to specific performance as a remedy available
at law or in equity to the enforcing party. In the event a party is required to
initiate any action to enforce the obligation of the other party hereunder, the
breaching party agrees to reimburse the enforcing party for all costs and
expenses, including reasonable attorney's fees, incurred by it in this regard.
The foregoing agreement shall expire on the closing of the transactions
referred to above or two (2) years from the date hereof, which ever first
occurs.
It is hereby further acknowledged and agreed that any negotiations relating
to the possible transaction shall not constitute a contract, and that the
Aduromed
Page 3
September 15, 2003
21-Jun-06
46
parties shall not be legally bound with respect to any possible transaction
until they execute a formal and definitive agreement, and then, only in
accordance with the terms of that agreement.
Please sign and return the enclosed copy of this letter which will
constitute our agreement with respect to the subject matter of this letter.
Very truly yours,
ARAMARK MANAGEMENT SERVICES
LIMITED PARTNERSHIP
By its general partner
ARAMARK SMMS LLC
By /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
President
Agreed and Accepted as of the
date first set forth above.
ADUROMED CORPORATION
By /s/ Xxxxxxx Xxxxx
----------------------------------
Xxxxxxx Xxxxx
Senior Vice President,
Business Development
21-Jun-06
47
