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EXHIBIT 10.15
GROUP PURCHASING AGREEMENT
Between
AMERINET, INC.
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 00000
Xx. Xxxxx, XX 00000
And
UNIVERSAL HOSPITAL SERVICES, INC.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
2
This GROUP PURCHASING AGREEMENT ("Agreement") is made and entered into
as of the Effective Date (as defined on the signature page hereto) by and
between AmeriNet, Inc. ("AmeriNet"), and Universal Hospital Services, Inc.
("Supplier").
WHEREAS, AmeriNet is a Delaware corporation, representing the member
institutions served by its Shareholders (which member institutions, both
singularly and collectively, are hereinafter referred to as "Participating
Institution(s)"); and
WHEREAS, the Shareholders of AmeriNet are: Hospital Shared Services,
Warrendale, PA; Xxxxxxxxxxxxx Xxxxxx Xxxx, Xxx., Xxxx Xxxx Xxxx, XX; and Vector,
Providence, RI; and
WHEREAS, AmeriNet and its Shareholders provide a broad portfolio of
agreements capable of serving all types of health care organizations, both
hospitals and non-hospitals alike; and
WHEREAS, the philosophy of AmeriNet is to secure agreements with
suppliers that provide to the Participating Institutions products which are of
optimum quality, at appropriate pricing and with appropriate service; and
WHEREAS, Supplier agrees to provide Equipment Rental, Medical (being
those products, accessories, equipment, and services more particularly described
in Addendum A hereto, all of which are hereafter referred to, both singularly
and collectively, as the "Product(s)") to Participating Institutions in
accordance with this Agreement; and
WHEREAS, Supplier acknowledges that, except as set forth in Addendum A
to this Agreement, each Participating Institution meeting the membership
requirements of AmeriNet and its Shareholders shall be eligible for AmeriNet
programs and pricing and shall be entitled to purchase any Product in
accordance with the pricing, terms, and conditions defined in and for the
duration of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, AmeriNet and
Supplier agree as follows:
SUPPLY REQUIREMENT OBLIGATIONS
1. During the Contract Period (as defined in Paragraph 20), Supplier shall
offer and sell the Products to the Participating Institutions identified on
the Membership List (as defined in Paragraph 11 hereof), as and when such
Membership List may be updated in accordance with Paragraph 11, on the
terms and conditions set forth in Addendum A hereto and on the other terms
and conditions set forth elsewhere in this Agreement. Except as set forth
in Addendum A, Supplier guarantees that all the benefits of this Agreement
shall be granted to each Participating Institution for the duration of the
Contract Period. Participating Institutions may include hospitals, nursing
homes, extended care facilities, health maintenance organizations, surgery
centers and clinics, home health agencies, healthcare
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clinics (including ambulatory care, radiology and outpatient clinics),
physician offices, reference laboratories, closed door pharmacies, retail
pharmacies and other educational and human service agencies.
2. Supplier's execution of this Agreement shall constitute Supplier's
guarantee of its ability to supply each Product to the Participating
Institutions during the Contract Period, at the terms, conditions and
prices specified herein.
3. Supplier shall furnish only those Products specified in this Agreement and
shall not furnish an alternate or substitute product or brand to any
Participating Institution without receiving the prior written approval of
such Participating Institution and/or AmeriNet.
4. If Supplier distributes any Product to any Participating Institution
through a dealer, distributor and/or wholesaler, Supplier shall allow
access to the terms and pricing contained herein only to those dealers,
distributors and/or wholesalers authorized in writing by AmeriNet (the
"Authorized Dealers"). Supplier shall provide written notification of the
terms, pricing and addenda of this Agreement to the Authorized Dealers at
least sixty (60) days prior to the Commencement Date. Supplier shall also
provide written notification of any subsequent revision to the terms,
pricing and addenda of this Agreement to the Authorized Dealers at least
sixty (60) days prior to the date that such revision takes effect. Supplier
shall be responsible for all costs incurred by Authorized Dealers for
credit and rebilling, or any cost otherwise incurred by such Authorized
Dealers as a result of Supplier's failure to comply with this paragraph.
Supplier agrees to obtain payment for any delivered Product directly from
the Authorized Dealer to whom the Product was delivered. Supplier shall be
solely responsible, at its sole cost, for resolving all disputes and
controversies regarding any purchase order, invoice, Product, shipment
and/or delivery date on a direct basis with the applicable Authorized
Dealers without liability, participation or contribution by AmeriNet.
5. If Supplier distributes any Product directly to any Participating
Institution, rather than through an Authorized Dealer (or any other dealer,
distributor and/or wholesaler), Supplier shall sell and ship such Product
to the Participating Institution at the address the Participating
Institution so specifies. Supplier shall obtain payment for any delivered
Product directly from the Participating Institution to whom the Product was
delivered. Supplier shall be solely responsible, at its sole cost, for
resolving all disputes and controversies regarding any purchase order,
invoice, Product, shipment and/or delivery date on a direct basis with the
applicable Participating Institutions without liability, participation or
contribution by AmeriNet.
6. Supplier shall make prompt delivery of all Products to Participating
Institutions. If Supplier fails to make any delivery of any Product to any
Participating Institution, either directly or through an Authorized Dealer,
on the date specified for delivery in the Participating Institution's
purchase order accepted by Supplier or before such date if so authorized by
the Participating Institution, such Participating Institution shall have
the right to purchase the Product, or a similar competitive product from a
third party, and Supplier shall reimburse the Participating Institution
for the difference between the cost of such Product under this
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Agreement and the actual delivered cost of the Product, or a similar
competitive product, purchased from the third party.
7. Title to a Product shall not pass to the Participating Institution at the
time the Participating Institution accepts delivery of the Product. All
risk of damage to or loss of a Product shall be assumed by Supplier until
the Participating Institution accepts delivery of the Product.
8. If any sales tax is due with respect to the sale of a Product hereunder, it
shall be Supplier's sole responsibility to collect and pay such tax.
Supplier shall defend, indemnify and hold harmless AmeriNet against any and
all suits, claims and expenses wising out of any claimed failure to pay any
sales tax on any Product sold under this agreement.
10. Supplier shall furnish to AmeriNet, each Participating Institution, and
each Authorized Dealer the then current Material Safety Data Sheet (MSDS)
and other data as required by law for each product and upon request by
AmeriNet or a Participating Institution.
MEMBERSHIP
11. Upon execution of this Agreement, AmeriNet will provide the current list of
Participating Institutions (the "Membership List") to Supplier. AmeriNet
shall provide Supplier with any additions or deletions to the Membership
List on at least a quarterly basis.
12. Prior to the Commencement Date (as defined in Paragraph 20), Supplier shall
enter each Participating Institution identified on the Membership List,
which has a Supplier account number assigned into its reporting and
information systems. The remaining Participating Institutions will be added
as Supplier account numbers are assigned.
13. Supplier represents and warrants to AmeriNet that Addendum B contains a
correct and complete description of the process and procedure used by
Supplier to recognize and enter into its reporting system the designation
of a given facility as a Participating Institution with respect to the
extension of the terms and conditions of this Agreement, the recognition
and generation of Contract Activity Reports and/or the calculation and
payment of Contract Administrative Fees (as such terms are hereinafter
defined).
14. Within thirty (30) days after entering the Membership List or any update
thereto as provided in Paragraph 15, Supplier will give AmeriNet notice (a
"Discrepancy Notice") identifying all Participating Institutions which,
according to Supplier's records, are members of a group purchasing
organization other than AmeriNet. If Supplier gives such notice, AmeriNet
will review the status of such Participating Institution(s). To correct any
discrepancy or clarify any uncertainty, AmeriNet (either on its own
initiative or upon the reasonable request of
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Supplier) may provide to Supplier a designation form substantially in the
form attached hereto as Addendum C or Addendum D, as appropriate (each in
"AmeriNet Membership Designation Form"), or any other contract-specific
designation or commitment form approved by AmeriNet in accordance with
Paragraph 19 duly executed by the Participating Institution, which
designates AmeriNet as its "Primary" group purchasing organization for this
Agreement. With respect to any Participating Institution as to which
Supplier does not give AmeriNet a Discrepancy Notice within the time period
required above, Supplier agrees to load and designate into its reporting
and information systems AmeriNet as the "Primary" group purchasing
organization for such Participating Institution. Regardless of whether a
Participating Institution identifies AmeriNet as its "Primary" group
purchasing organization, as a secondary group purchasing organization or
otherwise, any purchase of any Product by any Participating Institution
shall be subject to this Agreement, shall be sold to such Participating
Institution on the terms and conditions contained herein, and shall be
included in any Contract Activity Report and in the calculation and payment
of the Contract Administrative Fee.
15. As soon as practicable but in no event later than thirty (30) days after
Supplier receives a signed AmeriNet Membership Designation Form or an
update to the Membership List, Supplier shall update and correct its
reporting and information systems as specified therein and shall notify
each Authorized Dealer of any addition or deletion to the Membership List.
If Supplier fails to comply with this paragraph, after the expiration of
such 30-day period, Supplier shall be liable to AmeriNet for the Contract
Administrative Fee for any Sale of any Product to any Participating
Institution affected by the update.
16. Upon Supplier's receipt from AmeriNet of any deletion of any institution
from the Membership List, Supplier shall make such deleted institution
ineligible for any benefits provided by this Agreement, effective as of the
deletion date specified on the applicable Membership List update.
17. Supplier shall promptly, but no later than ten (10) days after the
effective date of any deletion or change, notify AmeriNet of any and all
deletions and/or changes it has made to its reporting and information
systems, or any notice it has provided to the Authorized Dealers with
respect to the extension of the terms and conditions of the Agreement to
Participating Institutions, the recognition and generation of Contract
Activity Reports and/or the calculation and payment of Contract
Administrative Fees. Supplier shall provide notice to AmeriNet of any
deletion or change including, but not limited to (i) the recognition, or
lack thereof, of any health care organization or facility as a
Participating Institution, (ii) the generation or submission of the
Contract Activity Report, (iii) the calculation of Sales, (iv) the
calculation and payment of the Contract Administrative Fee, (v) the
calculation and payment of any Discount, Surcharge or Processing Fee, or
(vi) any notice it has provided to the Authorized Dealers for the
Authorized Dealers to effect such a deletion or change.
19. Supplier agrees that the signed AmeriNet Membership Designation Form shall
ensure the appropriate recognition and reporting of AmeriNet as the
"Primary" group purchasing organization of record for each Participating
Institution under the terms of this Agreement. Except for those classes of
trade specifically excluded as set forth in Addendum A, Supplier
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agrees to recognize any health care organization which submits the AmeriNet
Membership Designation Form as a Participating Institution of AmeriNet,
entitled to the terms, conditions and pricing in accordance with this
Agreement. In accordance with such recognition and no later than such time
as provided herein. Supplier shall report to AmeriNet all subsequent
contract activity along with the appropriate fees, the Contract Activity
Reports and the Contract Administrative Fees for all Sales to such
Participating Institution in accordance with the terms of this Agreement.
19. If Supplier requires a contract-specific designation or commitment form
(including, but not limited to, a bilateral agreement or letter of
commitment) from a Participating Institution in addition or as an
alternative to the AmeriNet Membership Designation Form (other than the
contract-specific designation or commitment form attached hereto as
Addendum K which AmeriNet hereby approves), any such contract-specific
designation or commitment form must be submitted to and approved (as to
form only) in advance and in writing by AmeriNet before Supplier
distributes such document to any Participating Institution for approval or
execution. Further, Supplier's contract-specific designation or commitment
form shall designate AmeriNet as the "Primary" group purchasing
organization of record for such Participating Institution under the terms
of this Agreement. Supplier shall provide to AmeriNet a list of the
Participating Institutions executing such contract-specific designation or
commitment forms and shall promptly give AmeriNet notice of any additions
or deletions to such list. Supplier acknowledges and agrees that any
contract-specific designation or commitment form which is not approved (as
to form) by AmeriNet in advance (in accordance with this Paragraph 19)
shall not be valid or binding on the Participating Institution executing
such contract-specific designation or commitment form; provided, however,
that the invalidity of any such contract-specific designation or commitment
form shall not affect Supplier's obligation to report Sales to the
Participating Institution on a Contract Activity Report and to pay Contract
Administrative Fees with respect thereto.
TERM AND TERMINATION
20. The term of this Agreement shall commence as of June 1, 1999 through May
31, 2002 (the "Commencement Date"), and shall continue thereafter through
May 31, 2002 ("the End Date"), unless otherwise terminated pursuant to the
provisions of this Agreement. The term of this Agreement of Thirty-Six
months, or as it may be shortened pursuant hereto, is referred to as the
"Contract Period".
21. AmeriNet may terminate this Agreement if, in AmeriNet's sole and exclusive
judgment:
a) Supplier fails to make any delivery of any Product to a Participating
Institution within ten (10) days after the date specified for delivery
in the Participating Institution's purchase order accepted by
Supplier, and Supplier has not cured this failure of performance
within five (5) days after receipt of notice thereof by AmeriNet, a
Shareholder or the Participating Institution; or,
b) Supplier fails to make any delivery of any Product to a Participating
Institution within ten (10) days after the date specified for delivery
in the Participating Institution's
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purchase order accepted by Supplier on more than __________ occasions
(involving the same or different Participating Institution(s)) in a
___ month period, regardless of whether any such failure is cured in
accordance with subparagraph (a) above; or,
c) Subject to Paragraph 64, Supplier is unable for any reason to supply
Participating Institutions' reasonable requirements at any time during
the Contract Period; or,
d) Supplier does not maintain adequate equipment, inventory or personnel
to properly service Participating Institutions; or,
e) Supplier does not maintain the requisite insurance coverage specified
in Paragraph 47 below; or,
f) Supplier has failed to notify AmeriNet and the Participating
Institutions within seven (7) days after (i) Supplier becomes aware of
any defect or condition which may render any Product in violation of
the federal Food, Drug and Cosmetic Act or any other federal, state or
local law, regulation or ordinance, or which in any way alters the
specifications or quality of any Product, or (ii) Supplier receives
any notification of any regulatory action or warning letter concerning
any Product; or,
g) Supplier has failed to provide AmeriNet, any Participating
Institution, or any Authorized Dealer with the most current Material
Safety Data Sheet (MSDS) or other data with respect to any Product as
required by law or within thirty (30) days after the request of
AmeriNet or a Participating Institution for such document; or,
h) Supplier fails to pay any Contract Administrative Fee or fails to
submit any Contract Activity Report, in each case within ninety (90)
days after its respective due date; or
i) Supplier does not cure any error in reporting or payment identified as
a result of an audit; or
j) Supplier otherwise breaches this Agreement and fails to cure such
breach within ten (10) days after AmeriNet gives notice to Supplier
thereof.
22. In lieu of termination, AmeriNet, in its sole and exclusive judgment, may
select alternate or additional supplier(s) to replace or supplement
Supplier if (i) Supplier fails to make any delivery within a reasonable
time period, (ii) if there have been multiple delinquencies in delivery,
(iii) if Supplier is unable to supply Participating Institutions'
reasonable requirements for the Products, and/or (iv) if Supplier does not
maintain adequate equipment, inventory or personnel to properly service the
Participating Institutions.
23. AmeriNet reserves the right, in its sole and exclusive judgment, to
terminate this Agreement immediately upon notice thereof to Supplier if (i)
Supplier transfers assets in fraud of its creditors, (ii) Supplier makes an
assignment for the benefit of its creditors, (iii) Supplier is the subject
of any proceeding in bankruptcy instituted on behalf of or against
Supplier, (iv) a receiver or trustee is appointed for Supplier's property,
or (v) AmeriNet, in its sole
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discretion, believes that Supplier is financially unable to carry out
adequately its obligations under this Agreement.
24. Supplier may terminate this Agreement if AmeriNet breaches a material term
of this Agreement and fails to cure such breach within thirty (30) days
after Supplier gives notice to AmeriNet thereof.
25. Upon termination of this Agreement for any reason, AmeriNet and Supplier
shall have the following rights and obligations which shall survive the
termination of this Agreement:
a) Termination of this Agreement shall not release either party from any
obligation arising under this Agreement prior to its termination,
including, but not limited to, Supplier's obligation to pay in full to
AmeriNet the Contract Administrative Fee with respect to any Sale of
any Product through the date of termination of this Agreement and any
Sale of any product or service which is the subject of a separate
bilateral agreement or letter of commitment between Supplier and any
Participating Institution entered into at any time during the Contract
Period (a "Bilateral Product") through the date of termination of
such bilateral agreement or letter of commitment;
b) Supplier shall continue to honor each order for each Product from each
Participating Institution and from each Authorized Dealer up to the
effective date of termination and for a period of thirty (30) days
thereafter, which orders shall be subject to the pricing, terms and
conditions of this Agreement;
c) Supplier and AmeriNet shall not use, publish or disclose or cause
anyone else to use, publish or disclose any confidential information
obtained or learned by either party as a consequence of this
Agreement; provided, however, that AmeriNet may disclose such
confidential information to the Shareholders, the Participating
Institutions and any employee or advisor of AmeriNet assisting
AmeriNet in its evaluation or interpretation of this Agreement.
However, the above restrictions on disclosure and use shall not apply
to any information which (i) presently is or hereafter becomes part of
the public domain without breach of this Agreement, (ii) is already in
the non-disclosing party's possession at the time of disclosure, (iii)
comes into the non-disclosing party's possession from a third party
without breach of this Agreement, (iv) is independently developed by
the non-disclosing party or a third party without resource to or
utilization of any portion of the confidential information imparted or
transmitted herein, or (v) is required by law or court order to be
disclosed.
FEE AND REPORTING REQUIREMENTS
26. During the first twelve months of this agreement, Supplier agrees to remit
to AmeriNet a quarterly administration fee equal to two-percent of all
rental revenue of those Participating Institutions which have signed the
Supplier's Letter of Commitment. During subsequent years of this agreement,
Supplier agrees to remit to AmeriNet a quarterly administration fee equal
to one-percent applied to all rental revenue of those Participating
Institutions which have signed the Supplier's Letter of Commitment and
three percent on growth business. Growth business is defined as rental
revenue which exceeds the average quarter revenue for the first twelve
months of the Agreement. The average quarter is defined as the first twelve
month's revenue, divided by twelve and multiplied by three. All
administration fees will be paid within 45 days of each quarter.
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27. Supplier shall pay the Contract Administrative Fee in U.S. Dollars by
check or bank draft. Checks are to be made payable to "AmeriNet, Inc."
Supplier will remit the Contract Administrative Fee to AmeriNet within
forty-five (45) days after the close of each Reporting Period. "Reporting
Period" shall mean each calendar quarter.
28. Supplier shall include the following information when submitting a Contract
Administrative Fee to AmeriNet. This information must appear on each
Contract Administrative Fee payment notice (e.g., check stub):
a) Supplier's name (If a parent or affiliate corporation is making a
payment on behalf of Supplier, Supplier's name as it appears on this
Agreement must be identified on the face of the check stub or on the
payment notice); and
b) Contract number as assigned by AmeriNet; and
c) Reporting Period for which the Contract Administrative Fee is being
paid (e.g., 1/1/99 - 1/31/99).
29. Supplier shall report all Sales under this Agreement to AmeriNet (the
"Contract Activity Report"). Supplier shall submit the Contract Activity
Report to AmeriNet within thirty (30) days after the close of each
Reporting Period.
30. Supplier shall include the following information in each Contract Activity
Report:
a) Supplier's name, address and zip code;
b) Contract number as assigned by AmeriNet;
c) Reporting Period covered by the Contract Activity Report (e.g., 1/1/99
- 1/31/99);
d) Sales to each Participating Institution shall be reported as follows:
(i) For the submission of Contract Activity Reports, Sales to each
Participating Institution are to be reported for all Products
included in this Agreement, in total by the contract number
assigned by AmeriNet, not by line or product item detail.
(ii) Supplier may report detailed Sales activity by line or product
item detail if so authorized by AmeriNet.
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(iii) state and zip code, and AmeriNet customer number. Each
Participating Institution's Hospital Identification Number (HIN)
may be substituted for name, address and zip code.
e) Total Sales for all Participating Institutions must be summarized and
reported.
31. Supplier shall submit each Contract Activity Report in accordance with
Addendum E. If Addendum E indicates that Supplier shall submit the Contract
Activity Report in electronic form, Supplier must comply with the
specifications for electronic filing specified in Addendum E, as it may be
amended by AmeriNet from time to time. If Addendum E indicates that
Supplier shall submit the Contract Activity Report in printed, hardcopy
form, or if Supplier submits the Contract Activity Report in an electronic
form that does not comply with the AmeriNet filing specifications set forth
in Addendum E, Supplier shall pay AmeriNet an incremental one-quarter of
one percent (.25%) processing fee (the "Processing Fee") for each Contract
Activity Report so filed. The Processing Fee shall be calculated by
multiplying the Sales for the Reporting Period covered by such Contract
Activity Report by .0025. The Processing Fee shall be added to and remitted
with the payment of the Contract Administrative Fee applicable to such
Reporting Period.
32. A discount of one percent (1%) (the "Discount") shall apply to the Contract
Administrative Fee if the Contract Administrative Fee and the Contract
Activity Report are received by AmeriNet within fifteen (15) days after the
close of the Reporting Period to which they relate. The discount shall be
calculated by multiplying the Contract Administrative Fee for such
Reporting Period by .01 and then subtracting the result of such calculation
from the Contract Administrative Fee for such Reporting Period.
33. Supplier shall pay a late payment penalty surcharge ("Surcharge") of one
and one-half percent (1-1/2%) per month if the Contract Administrative Fee
and/or the Contract Activity Report with respect to a given Reporting
Period have not been received by AmeriNet within thirty (30) days after
the close of such Reporting Period. The Surcharge is calculated by
multiplying the Contract Administrative Fee for the Reporting Period for
which the Contract Activity Report and/or the Contract Administrative Fee
have not been submitted by .015, and then multiplying the result of such
calculation by a fraction, the numerator of which is total number of days
that the Contract Activity Report and/or the Contract Administrative Fee is
delinquent, and the denominator of which is thirty (30).
34. If the Contract Administrative Fee has not been received by AmeriNet within
ninety (90) days after the end of the Reporting Period to which it relates,
AmeriNet may invoice Supplier for the Contract Administrative Fee estimated
by AmeriNet to be due for such Reporting Period. Supplier shall pay such
estimated Contract Administrative Fee within ten (10) days after receipt of
AmeriNet's invoice, if Supplier has not previously paid the Contract
Administrative Fee for such Reporting Period. Invoice by AmeriNet or
payment of such estimated Contract Administrative Fee by Supplier shall not
relieve Supplier of its obligation to submit the Contract Activity Report
applicable to such Reporting Period and to pay in full the actual Contract
Administrative Fee owed with respect to such Reporting Period and any
Surcharge applicable thereto.
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35. During the Contract Period and within 180 days thereafter, AmeriNet retains
the right to audit or to have its agents audit Supplier's records. Such
audits may include, but shall not be limited to, tracking of Product Sales,
Contract Administrative Fees, Contract Activity Reports, Supplier's costs
and Supplier's freight charges. If AmeriNet elects to conduct an audit,
Supplier agrees to make available during normal business hours such of its
documents and personnel as AmeriNet may reasonably request in order to
conduct such audit. If any audit determines (i) that the calculation,
reporting and/or payment of any Contract Administrative Fee was in error,
and/or (ii) that any overcharge was incurred by any Participating
Institution, Supplier shall provide a written response or explanation,
correct any error, and remit any monies due within fifteen (15) days after
receiving notice of the error or overcharge. If the audit reveals an error
or overcharge with respect to any amount described in the foregoing clause
(i) or clause (ii) which in the aggregate exceed one percent (1%) of such
amount, then, in addition, Supplier shall pay AmeriNet's out-of-pocket
costs of such audit.
36. Every notice, Contract Activity Report and other communication to AmeriNet
in connection with this Agreement shall be in writing. Each such notice,
Contract Activity Report and other communication, and each payment and
Contract Administrative Fee hereunder, shall be sent to AmeriNet at the
following address until otherwise notified by AmeriNet:
AmeriNet, Inc.
Attn.: Xxx Xxxxxxx
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 00000
Xx. Xxxxx, XX 00000
37. Unless subsequently notified by Supplier, every notice and other
communication to Supplier in connection with this Agreement, including
reporting discrepancies and problem resolution, shall be in writing and
shall be addressed to:
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Universal Hospital Services, Inc.
Attn: Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
a) Individual responsible for entering all Participating Institution
information into Supplier's pricing system and database to guarantee
access to and implementation of the Agreement's terms and pricing:
Name: Xxxx Xxxxx
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Title: Accounts Receivable - Control
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Address: 0000 X 00xx Xxxxxx, Xxxxx 0000
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City/State/Zip: Xxxxxxxxxxx, XX 00000
--------------------------------------------------
Phone: (000) 000-0000 Ext: (voice mail = ext. 3265)
----------------------------- ------------------------
Email: xxxxxx@xxx.xxx
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b) Individual responsible for compilation and submission of Contract
Activity Reports to AmeriNet:
Name: Xxxx Xxxxx
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Title:
-----------------------------------------------------------
Address:
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City/State/Zip:
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Phone: Ext:
----------------------------- ------------------------
Email:
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c) Individual responsible for calculation and payment of Contract
Administrative Fee to AmeriNet:
Name: Xxxx Xxxxx
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Title:
-----------------------------------------------------------
Address:
---------------------------------------------------------
City/State/Zip:
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Phone: Ext:
----------------------------- ------------------------
Email:
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INFORMATION SYSTEMS
38. Supplier shall support the exchange of data and information, including but
not limited to Sales reporting, Membership Lists, Product catalogs and
pricing information, via electronic media and electronic data interchange
("EDI"), to the extent provided and in accordance with the specifications
set forth in Addendum E and Addendum F.
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INFORMATION SYSTEMS
39. Supplier shall support the exchange of data and information, including but
not limited to Sales reporting, Membership Lists, Product catalogs and
pricing information, via electronic media and electronic data interchange
("EDI"), to the extent provided and in accordance with the specifications
set forth in Addendum E and Addendum F.
40. Where applicable, Supplier shall support the UPN Initiative as promulgated
in the Joint Communique dated February 23, 1998 by the Healthcare EDI
Coalition ("HEDIC") to the extent provided in Addendum G. The purpose of the
UPN Initiative is to establish the use of Universal Product Numbers ("UPN")
throughout the healthcare industry at each package level or inventory unit
of the Product. Where applicable, Supplier shall establish and implement
Universal Product Numbers and machine-readable bar codes on the Products to
the extent provided in Addendum G.
41. Supplier shall support the development of electronic commerce on the
Internet by and among AmeriNet, the Shareholders, the Participating
Institutions and Supplier to the extent provided in Addendum H.
ASSIGNMENT
42. AmeriNet has entered into this Agreement with Supplier because of the
commitments and representations Supplier is making in this Agreement and
further because of AmeriNet's confidence in Supplier, which confidence is
personal in nature. Consequently, Supplier shall not assign or delegate any
of its rights or obligations hereunder without the prior written consent of
AmeriNet; an "assignment" by Supplier shall be deemed to include (i) a
change in the identity of the person(s) or entity(ies) owning a majority of
the issued and outstanding voting securities of Supplier, whether in a
single transaction or a series of related transactions, and (ii) a transfer
of this Agreement by operation of law due to the merger or consolidation of
Supplier with another entity. Any attempt by Supplier to assign any of its
rights or delegate any of its duties hereunder without the prior written
consent of AmeriNet shall be null and void and shall entitle AmeriNet, at
its sole and exclusive option, to terminate this Agreement in its entirety.
In addition, any such attempted assignment by Supplier shall entitle each
Participating Institution, at its sole and exclusive option, to cease
purchasing any and all Products from Supplier and to begin purchasing such
Products from such other manufacturers or suppliers as the Participating
Institution may select. AmeriNet may freely assign and delegate any of its
rights and obligations under this Agreement without restriction. No
assignment permitted by this paragraph shall release the assigning party
from its duties and obligations under this Agreement without the express
written consent thereto of the other party. Subject to the limitations on
assignment set forth in this paragraph, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties.
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WARRANTIES AND INDEMNIFICATION
45. Supplier has made certain representations and warranties to AmeriNet in
Addendum I with respect to each Product's ability to correctly identify,
manipulate, and calculate using dates outside of the 1900 - 1999 year range
("Year 2000 Compliant").
Supplier agrees to indemnify and hold harmless AmeriNet, its Shareholders,
Participating Institutions, and all of their respective subsidiaries,
affiliates, directors, officers, employees and agents and all of their
respective successors and permitted assigns, from and against any and all
claims, actions, suits, proceedings, liabilities, costs and expenses,
including reasonable attorney's fees arising out of or resulting from
personal injury, or property damage, or loss of property caused by the
negligence of Supplier and arising our of or caused by Suppliers'
performance of services under the Agreement.
AmeriNet, its Shareholders, and all of their respective subsidiaries,
affiliates, directors, officers, employees and agents, and all of their
respective successors and permitted assigns, agrees to indemnify and hold
harmless
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Supplier from and against any and all claims, actions, suits, proceedings,
liabilities, costs and expenses, including reasonable attorney's fees
arising out of or resulting from personal injury, or property damage, or
loss of property caused by the negligence of Participating Institution and
arising out of or caused by Participating Institution of services under
this Agreement.
INSURANCE
46. At all times during this Agreement, Supplier shall maintain (a) Worker's
Compensation insurance covering its full liability under the appropriate
states' statutes and (b) comprehensive general (and professional, if
applicable) liability insurance in an amount at least equivalent to the
standard in Supplier's industry. Supplier shall keep and maintain the
foregoing insurance in force during the term of the Agreement and thereafter
until the expiration of each statute of limitations applicable to
liabilities of the kind covered by such insurance. Supplier shall
immediately (and no later than thirty (30) days prior to the effective date
of any change) notify AmeriNet of any changes in the foregoing insurance,
including, but not limited to, any cancellation or material change in
coverage. Upon request of AmeriNet, Supplier shall provide evidence of
insurance coverage as specified above.
PRODUCT MARKETING AND GPO-COMPLIANCE REQUIREMENTS
47. In the performance of its duties and obligations under this Agreement,
Supplier shall at all times comply with all applicable federal, state and
local laws, statutes, regulations, rules, orders and ordinances now in
effect or as hereafter enacted, amended or promulgated.
49. Upon request by AmeriNet, Supplier shall provide, at no charge, literature,
training and marketing assistance to lawfully promote and support the sale
and utilization of each Product by Participating Institutions. Supplier
agrees to participate with AmeriNet in the design, development and
implementation of a launch program, with mutually agreed upon actions and
timelines, and to promote and support the sale and utilization of each
Product by Participating Institutions. Supplier also agrees to notify and
train its sales representatives responsible for implementing this Agreement
to promote and support the sale and utilization of each Product by
Participating Institutions.
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51. During the Contract Period, Supplier agrees that the price paid by any
Participating Institution for any Product under this Agreement shall be
equal to or lower than the price that would be paid by that Participating
Institution under the terms of any other agreement which Supplier has
offered to any other group, person or entity of similar membership numbers
and contract compliance percentages.
53. Supplier will not persuade or induce any Participating Institution to
terminate its status or relationship with AmeriNet by offering more
attractive contract prices, terms or conditions to such Participating
Institution, or in any other manner or form whatsoever. A breach of this
paragraph will constitute sufficient cause for AmeriNet to terminate this
Agreement and/or to seek damages from Supplier for loss of all actual and
prospective Contract Administrative Fees resulting directly or indirectly
from such breach.
54. If at any time during the Contract Period, Supplier develops and markets an
improvement to any Product, Supplier shall add such Product improvement to
this Agreement within thirty (30) days, subject to AmeriNet's approval of
the terms and pricing of the Product improvement. Notwithstanding the
foregoing, AmeriNet's acceptance of a Contract Administrative Fee with
respect to any Product improvement shall not constitute the acceptance and
inclusion by AmeriNet of such Product improvement as a Product under this
Agreement without AmeriNet's express written consent thereto.
55. If at any time during the Contract Period, Supplier develops a product line
extension or a product addition (a "New Product"), Supplier agrees that it
shall offer AmeriNet the right to include such New Product in an amendment
to this Agreement or in a new agreement. Supplier shall give notice of such
New Product to AmeriNet, which notice shall describe the New Product and its
use in reasonable detail. If AmeriNet is interested in including the New
Product in its contract portfolio, AmeriNet and Supplier agree to negotiate
terms and pricing relating to the New Product. Notwithstanding the
foregoing, AmeriNet's acceptance of a Contract Administrative Fee with
respect to any New Product shall not constitute the acceptance and inclusion
by AmeriNet of such New Product as a Product under this Agreement without
AmeriNet's express written consent thereto.
56. Supplier and AmeriNet understand and agree that new clinical developments
in patient care or new regulatory agency restrictions may result in changed
conditions. If, in the sole and exclusive judgment of AmeriNet, this
Agreement or Supplier's Products do not adequately meet such changed
conditions, AmeriNet shall have the option to pursue alternate or additional
contracts and/or suppliers.
57. Supplier shall support AmeriNet's private label program to the extent
provided in Addendum J.
58. Many Participating Institutions are providers under the federal Medicare
programs, and, as a consequence, the provisions of Section 952 of the
Omnibus Reconciliation Act of 1980 may be applicable to this Agreement.
Therefore, until the expiration of four years after the final furnishing of
Products under this Agreement, Supplier shall make available, upon written
request of the Secretary of the U.S. Department of Health and Human
Services, the U.S.
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Comptroller General, or such Secretary's or Comptroller's authorized
representative, this Agreement and Supplier's books, documents and records
that are necessary to certify the nature and extent of the costs of the
Products purchased and sold hereunder. Supplier shall obtain a written
contractual commitment from each of Supplier's subcontractors to do the
same.
59. Except as way be required by law or as reasonably required to conduct their
respective businesses, AmeriNet, its Shareholders and Supplier shall keep
confidential the details of this Agreement. AmeriNet and Supplier may
announce the execution of this Agreement and may disclose other information,
such as the overall savings to be realized from this Agreement, subject to
the written approval of the other party.
60. The following Addendums:
Addendum A (Product Data Sheet)
Addendum B (Participating Institution Designation Procedure)
Addendum C (AmeriNet Membership Designation Form - Exclusive Group)
Addendum D (AmeriNet Membership Designation Form - Program Select)
Addendum E (Supplier Contract Reporting)
Addendum F (Supplier EDI Support and Reporting)
Addendum G (Supplier Labeling Standards Support)
Addendum H (Supplier Support of Electronic Commerce)
Addendum I (Supplier Year 2000 Compliance)
Addendum J (Private Label Program Support)
Addendum K (Contract-Specific Designation or Commitment Form)
Addendum L (Value Added)
shall be considered an integral and binding component of this Agreement and
are hereto incorporated by this reference and made a part of this Agreement.
In the event of any actual or perceived inconsistencies or conflicts between
this Agreement and any Addendums to this Agreement, the provisions of this
Agreement shall govern. This Agreement, together with the foregoing
Addendums, will constitute the full and complete Agreement between the
parties as to the term outlined herein. This Agreement supersedes and
cancels in their entirety any and all previous agreements, discussions,
negotiations, commitments and obligations of any sort whether written or
oral, previously existing between AmeriNet and Supplier with respect to the
subject matter hereof
OTHER
61. Supplier represents and warrants that it prepared its proposal to AmeriNet
without any collusion whatsoever among or between any other potential or
actual contractors of AmeriNet.
62. It is understood and agreed that the parties hereto are independent
contractors, and nothing in this Agreement shall be construed so as to
constitute the parties as partners or joint venturers. Neither party has any
right or authority, express or implied, to assume or create any obligation
on behalf of the other party, or to bind or commit the other party to third
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parties, in any manner. No party shall hold itself out as having any
authority or relationship in contravention of this paragraph.
63. If one or more of the provisions of this Agreement, or the application
thereof, is determined to be invalid or unenforceable, the remainder of this
Agreement shall remain in full force and effect, and the provisions deemed
invalid or unenforceable replaced with valid and enforceable provisions
which achieve the intent of Supplier and AmeriNet in entering into this
Agreement.
64. If AmeriNet or Supplier is unable to discharge any obligations imposed upon
it by this Agreement, the failing party shall not be liable should such
failure be found to be a result of force majeure. For the purpose of this
paragraph, force majeure shall include, but not be limited to, an act of
God, fire, act of war, public riot, natural disaster, or labor disturbance.
AmeriNet may select an alternate or additional supplier(s) to replace or
supplement Supplier for the Products for the period during which Supplier is
unable to discharge or fulfill its obligations under this Agreement as a
result of force majeure.
65. No amendment, modification or alteration of the terms of this Agreement
shall be binding unless the same is in writing and is duly executed by the
parties hereto, except that any provision of this Agreement may be waived in
writing at any time by the party which is entitled to the benefit of such
provision. No waiver of any provision of this Agreement shall be deemed to
or shall constitute a waiver of any other provision hereof (whether or not
similar). Except as expressly provided in this Agreement, no delay on the
part of any party in exercising any right, power or privilege shall operate
as a waiver thereof. The waiver by either party of any breach or default by
the other party shall not be construed to be either a waiver of any
subsequent breach or default of any such provision, of the same or different
kind, or a waiver of the provision itself.
66. All section headings and the use of a particular gender contained herein are
for convenience only and shall in no way modify or restrict any of the terms
or provisions hereof, or affect the meaning or interpretation of this
Agreement.
67. This Agreement shall be signed by a duly authorized representative or agent
of Supplier, such signature to constitute proof of that person's authority
to bind Supplier. This Agreement shall be signed by a duly authorized
representative or agent of AmeriNet, such signature to constitute proof of
that person's authority to bind AmeriNet.
68. This Agreement shall be construed and enforced in accordance with the laws
of the State of Missouri as it applies to contracts negotiated, executed,
delivered and performed solely within such jurisdiction. Any action or
proceeding seeking to enforce any provision of, or based on, arising out of,
or in any way related to, any right, obligation or matter set forth in this
Agreement shall be brought in the courts of the State of Missouri (or, if
jurisdiction is appropriate, the U.S. District Court for the Eastern
District of Missouri), and each of the parties consents to the jurisdiction
of such courts (and of the appropriate appellate courts) in any such action
or proceeding and waives any objection to jurisdiction and venue laid
therein. Process in
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any action or proceeding referred to in the preceding sentence may be served
on any party anywhere in the world.
69. This Agreement may be executed in two or more counterparts, each of which is
an original and all of which together shall be deemed to be one and the same
instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by each
of the parties hereto to the other.
70. See Addendum L, Value Added.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date set forth below the signature of AmeriNet's authorized
representative (the "Effective Date").
SUPPLIER NAME: Universal Hospital Services, Inc.
------------------------------------------
ADDRESS: 0000 X 00xx Xxxxxx
------------------------------------------
Suite 1250
------------------------------------------
Xxxxxxxxxxx, XX 00000
------------------------------------------
------------------------------------------
AUTHORIZED REPRESENTATIVE:
BY: /s/ XXXX XXXXXXX
------------------------------------------
PRINTED NAME: Xxxx Xxxxxxx
------------------------------------------
TITLE: Vice President
------------------------------------------
DATE: 02-04-99
------------------------------------------
NAME: AMERINET, INC.
ADDRESS: 0000 Xxxxxxxxxx Xxxx
X.X. Xxx 00000
Xx. Xxxxx, XX 00000
AUTHORIZED REPRESENTATIVE:
BY: /s/ XXXXXX X. XXXXXXX
------------------------------------------
PRINTED NAME: Xxxxxx X. Xxxxxxx
------------------------------------------
TITLE: Senior Contract Manager
------------------------------------------
DATE: 3/31/99
------------------------------------------
AMERINET SHAREHOLDERS
[HOSPITAL SHARED SERVICES LOGO] [INTERMOUNTAIN HEALTH CARE LOGO] [VECTOR LOGO]
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