EXHIBIT 10.87
Agreement No.______________________
X. XXXXX MEDICAL INC.
AGREEMENT
FOR
VISTA(R) BASIC IV PUMPS
THIS AGREEMENT ("Agreement") is by and between CORAM HEALTHCARE CORPORATION., as
debtor ("Customer") and X. Xxxxx Medical Inc. ("X.Xxxxx").
X. Xxxxx Medical Inc. ("X.Xxxxx") hereby agrees to sell to Customer, and
Customer hereby agrees to purchase from X.Xxxxx, the products described below
(collectively, the "Equipment") on the terms and conditions in this Agreement:
QUANTITY CATALOG/ REORDER # DESCRIPTION PRICE PER UNIT EXTENDED PRICE
-------- ------------------ ----------- -------------- --------------
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TOTAL EXTENDED PRICE $751,000.00
500 637-102 VISTA BASIC IV PUMPS $1,502.00 $751,000.00 LESS TRADE-IN ($125,000.00)
NET EXTENDED PRICE ($626,000.00)
X.Xxxxx will also credit Customer for returning the following products to EXTENDED LIMITED WARRANTY $48,000.00
X.Xxxxx as a trade in: -------------
500 TRADE INS BAXTER 3030 PUMPS ($250.00) ($125,000.00) TOTAL PURCHASE PRICE $674,000.00
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TRADE-INS. Customer shall ship all trade-in products to X.Xxxxx, free and clear
of all liens and encumbrances, within seventy-five (75) days after its receipt
of the Equipment. If the trade-in products are not sent to X.Xxxxx as required
herein, Customer will not receive a trade-in credit for the amount of the
shortfall, and X.Xxxxx will invoice Customer for the shortfall amount. Customer
shall pay such invoice within then (10) days of the invoice date. Customer
represents and warrants that it has good and marketable title to the trade-in
products and has the right to transfer such products to X.Xxxxx.
PURCHASE PRICE. Customer shall pay to X.Xxxxx a TOTAL PURCHASE PRICE OF
$674,000.00 (THE "PURCHASE PRICE"). The Purchase Price is exclusive of any
freight or shipping costs and any sales, use, or other taxes, which shall be
added to the invoice amount. If Customer is tax exempt, it shall provide X.Xxxxx
with a copy of its tax exemption certificate to avoid being charged sales tax.
PAYMENT. $337,000.00 of the Purchase Price is due by wire transfer of funds from
Customer to X.Xxxxx upon execution of this Agreement, and the remaining balance
of the Purchase Price is due by wire transfer of funds from Customer to X.Xxxxx
on May 1, 2003, (or upon the delivery date of all 500 units of Equipment, if
sooner). Notwithstanding the foregoing, in the event that not all 500 units of
Equipment are delivered by May 1, 2003, Customer shall deduct from the second
wire transfer such amount equal to the shortfall amount multiplied by $674.00,
and pay the balance amount owing when X.Xxxxx delivers Customer the amount of
the shortfall).
DELIVERY. X.Xxxxx shall deliver the Equipment to Customer by April 12, 2003. All
Equipment will be shipped to the following address: c/o Medical Specialties
Distributors, 000 Xxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. Shipment of the
Equipment will be made F.O.B. origin. All shipping dates quoted whether verbal
or written are approximate only.
WARRANTIES. The standard product warranty and the Extended Limited Warranty,
described in the Extended Warranty Program Agreement (collectively, the "Product
Warranty") made by X.Xxxxx is attached hereto and made a part of this Agreement.
The Purchase Price includes the cost of the Extended Limited Warranty, which
will cover the Equipment, in a accordance with its terms, for a period of one
year after expiration of the two year standard product warranty. Notwithstanding
the terms of the Product Warranty, the rights of "Customer" thereunder shall
extend to any entity that is the successor to Customer pursuant to Curaflex
Health Services, Inc. or any other affiliated company of Customer.
USE, ALTERATIONS. Customer agrees to use and operate the Equipment in a careful
and lawful manner, and shall use the Equipment only for the purposes and in
accordance with the instructions indicated on the labeling of or included with
the Equipment. Customer represents that it has examined the Equipment and that
it is acceptable and clinically suitable for Customer's purposes. Customer shall
not remove or alter any trademarks, tradenames, labels or serial numbers that
are on the Equipment.
COMPLIANCE WITH LAWS, REPORTING AND DEVICE TRACING. Customer shall comply with
all applicable laws, rules and regulations applicable to the purchase,
operation, maintenance and use of the Equipment. Customer acknowledges that it
is familiar with the Safe Medical Devices Act of 1990 (the "Devices Act") and
the reporting obligations imposed on device users thereunder. In this regard,
Customer agrees to notify X.Xxxxx within ten (10) days of the occurrence of any
event identified in the Devices Act imposing a reporting obligation on Customer
and/or X.Xxxxx (except for events representing an imminent hazard that requires
notification to the United States Food and Drug Administration (the "FDA")
within seventy-two hours, in which case, such notice will be delivered to the
other party immediately). Customer shall maintain adequate tracking for the
Equipment to enable X.Xxxxx to meet the FDA requirements applicable to the
tracking of medical devices.
REIMBURSEMENT REPORTING. If any pricing hereunder constitutes a discount or
other reduction in price under Section 1128(b)(3)(A) of the Social Security Act,
42 U.S.C. 1320a-7b(b)(3)(A), Customer shall disclose the discount or reduction
in price to the full extent required under any state or federal program which
provides cost or charge based reimbursement to Customer for Equipment covered
hereunder. This Act requires, among other things, that Customer fully and
accurately report on any claim or request for payment it submits to Medicare and
Medicaid the actual purchase price paid by Customer for the Equipment, net of
any discounts, rebates or allowances provided to Customer hereunder.
MISCELLANEOUS:
X.Xxxxx shall be excused from any delay in, or impossibility of, performance due
to any cause beyond its or its supplier's or sub-contractor's control, including
but not limited to, acts of God, war, acts of government, regulatory agencies or
judicial bodies, acts of Customer or third parties, raw materials shortages,
energy or fuel shortages, fire, flood, strike or labor trouble, sabotage, or
delay in obtaining labor, materials, equipment or transportation. In the event
of any such delay, X.Xxxxx may allocate the Equipment among all of its
customers, without penalty or liability.
In no event shall X.Xxxxx be liable to Customer for any indirect, incidental,
special, consequential or punitive damages (including damages for lost profits)
arising out of or in connection with the sale, delivery, use, performance or
service of the Equipment, or otherwise, whether based in contract, warranty,
tort (including negligence) or any other legal or equitable theory. X.Xxxxx'x
total liability for any claim related to this Agreement or the Equipment shall
not exceed the Purchase Price of the Equipment out of which such claim arose.
X.Xxxxx agrees to indemnify and hold Customer and its successors and assigns
harmless from and against any and all liability, damages and claims (including
expenses of litigation, investigator's fees and attorneys' fee, settlements and
damages) asserted by persons other than Customer arising from or related to
defects in materials and/or workmanship of the Equipment, except to any extent
due to the acts or omissions of Customer or its employees, agents or
representatives or any other party. Customer shall immediately submit all such
claims to X.Xxxxx and X.Xxxxx shall control the defense thereof. If Customer
desires to join any defense of such claim, it shall be entitled to do so at its
sole cost and expense. Customer agrees to cooperate with X.Xxxxx and its
counsel.
This Agreement is made under Pennsylvania law, excluding its laws of conflict of
law. Any claims or causes of action relating to this Agreement or the Equipment
shall be tried by a court and not a jury. CUSTOMER HEREBY UNCONDITIONALLY WAIVES
ITS RIGHTS TO A JURY TRIAL IN ANY SUCH ACTION OR CLAIMS. If any clause herein is
determined invalid or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall remain valid and enforceable to the fullest
extent permitted by law.
Customer hereby represents and warrants that (i) the transactions contemplated
by this Agreement are within the ordinary course of Customer's business,(ii) it
has the right and power to enter into this Agreement and to perform all of its
obligations hereunder; (iii) this Agreement, when executed and delivered to
X.Xxxxx will be a legal, valid and binding obligation of Customer enforceable
against it in accordance with its terms, and (iv) neither the execution of this
Agreement nor Customer's performance of its obligations hereunder conflicts with
or contravenes any other contract, agreement or instrument to which Customer or
its assets or property is bound.
This Agreement, and any attachments checked in the box below, constitutes the
entire agreement between the parties with respect to the subject matter hereof.
Any terms or conditions on any purchase order or other document that is
inconsistent or additional shall be without force and effect. All prior
negotiations, representations, discussions, or agreements concerning the subject
matter hereof, whether express or implied, oral or written, are cancelled and of
no force and effect. The obligations, rights and liabilities of the parties
under the provisions of this Agreement shall survive this Agreement in
accordance with their terms.
This Agreement may be executed in one or more counterparts, all of which shall
constitute one original agreement for all purposes. Any and all counterpart
signatures may be executed by facsimile or electronic means and any signature so
executed shall be deemed an original signature of the executing party.
Intending to be legally bound hereby, the parties have caused their duly
authorized representatives to execute and deliver this Agreement as of the date
set forth below.
CORAM HEALTHCARE CORPORATION Date Signed by Customer: April 11, 2003
---------------
By: /s/ XXXXX X. XXXXXX
----------------------------------
(Signature)
Name: Xxxxx X. Xxxxxx
-------------------------------
(Type or print name)
Title: Senior Vice President, CFO &
Treasurer
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X. XXXXX MEDICAL INC.
By: /s/ XXXXXX X. XXXX Date Signed by X. Xxxxx: April 11, 2003
---------------------------------- ---------------
(Signature)
Name: Xxxxxx X. Xxxx
------------------------------
(Type or print name)
Title: Executive V.P., Chief
Sales & Marketing Officer
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FOR INTERNAL USE ONLY: ADDITIONAL FORMS ATTACHED
Shipping Date: __________________ [X] Product Warranty
Other: __________________________ [X] Extended Warranty Program Agreement
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X. XXXXX MEDICAL INC.
Vista(TM) Basic Infusion Device
PRODUCT WARRANTY
X. Xxxxx Medical Inc. ("X.Xxxxx") warrants to and only to the original purchaser
or lessee ("Customer") of the Vista(TM) Basic Infusion Device ("Equipment") that
reasonable care has been used in the manufacture of each unit of Equipment and
that, when properly used and maintained by Customer, it shall be free from
defects in material and workmanship in accordance with its specifications for a
period of two (2) years from the date of shipment of such Equipment by X.Xxxxx
("Warranty Period"). Any unit of Equipment that is found by X.Xxxxx not to meet
these standards within this Warranty Period will, at X.Xxxxx'x sole option, be
repaired or replaced without charge. Any defective unit of Equipment or
component thereof should be returned promptly to X.Xxxxx, properly packaged and
with postage prepaid by Customer. Customer shall provide labor for the removal
of defective Equipment and installation of its replacement, and shall bear all
risk of loss or damage while in transit. In the event no breach of warranty is
discovered by X.Xxxxx upon receipt of any returned item, the item will be
returned to Customer at Customer's expense.
This Warranty is valid only if the Equipment is operated and maintained as
described in X.Xxxxx'x operator's manuals, supplements or other operating
instructions. This Warranty shall not apply to any Equipment or component
thereof if (1) any repairs, alterations, or other work has been performed on the
Equipment or any component thereof by anyone other than X.Xxxxx or a technician
or repair facility authorized in writing by X.Xxxxx; (2) the Equipment is
altered in any manner that, in X.Xxxxx'x sole judgement, affects its stability
or reliability; (3) the alleged condition or defect is a result of the misuse,
improper cleaning or improper handling, negligence, accident or improper
maintenance of any party; (4) the Equipment is not used in accordance with its
instructions for use furnished by X.Xxxxx or is not used for its intended
purpose.
Any defect or condition that has been caused by the misuse, unauthorized
modification, or abnormal conditions of operation, or that is otherwise excluded
from this Warranty, will be repaired by X.Xxxxx at its then current repair
charges. In this case, upon the request of Customer, X.Xxxxx will submit an
estimate of the repair cost to Customer prior to making any repairs.
This Warranty does not extend to damages to, or resulting in whole or in part
from the use of, components, accessories, parts or supplies not supplied by
X.Xxxxx for use with the Equipment. Products or components not manufactured by
X.Xxxxx are not warranted by X.Xxxxx, and Customer must rely on the warranties,
if any, provided directly be the manufacturer of such product or component.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, X.XXXXX MAKES NO WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE
EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The sole and exclusive
remedy of Customer for breach by X.Xxxxx of any warranty shall be limited, at
X.Xxxxx'x sole election, to the repair or replacement of the unit of Equipment
or any component thereof. In no event shall X.Xxxxx be liable to Customer for
any indirect, incidental, special, consequential or punitive damages (including
damages for lost profits) arising out of or in connection with the delivery, use
or service of any Equipment or the performance, use or inability to use the
Equipment or otherwise, whether based in contract, warranty, tort (including
negligence) or any other legal or equitable theory.
X.Xxxxx neither assumes, nor authorizes any person to assume for it, any
additional liability or responsibility in connection with the Equipment and no
agent, employee or representative of X.Xxxxx has the right to modify or expand
the warranties set forth herein and no such modification or expansion should by
relied upon by Customer.
X. XXXXX MEDICAL INC. 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000
CUSTOMER SUPPORT 0 (000) 000-0000 2/3/03
X. XXXXX MEDICAL INC.
EXTENDED WARRANTY PROGRAM AGREEMENT
The undersigned Coram Healthcare Corporation, as debtor ("Customer") is
purchasing 500 Vista Basic IV Pumps (the "Equipment") from X. Xxxxx Medical Inc.
("X.Xxxxx") under its purchase agreement dated April 11, 2003 (the "Contract").
In connection with the Contract, Customer has elected to purchase from X.Xxxxx
the following additional product warranty:
TYPE AND PERIOD OF WARRANTY PURCHASED BY CUSTOMER:
Extended Limited Warranty for a period of one (1) year at a purchase price of
$96.00 per unit of Equipment per year, for an aggregate purchase price of
$48,000.00 per year (said period to commence upon termination of the Warranty
Period under X.Xxxxx'x Product Warranty for the Vista(TM) Basic Infusion
Device).
PAYMENT:
The applicable purchase price set forth above shall be referred to as the
"Annual Warranty Price." The Annual Warranty Price shall be paid by Customer to
X.Xxxxx as provided in the Contract. This Extended Warranty Program Agreement is
subject to the terms and conditions in the Contract, and the Contract is hereby
incorporated herein, by reference thereto.
WARRANTY DESCRIPTION:
The Extended Limited Warranty Program provides for repair by factory trained
technicians at the manufacturing facility, subject to the terms of this
agreement. The Extended Limited Warranty shall commence immediately after
expiration of X.Xxxxx'x standard factory warranty covering such type of
equipment (which is two year from date of shipment). During the Extended Limited
Warranty period, X.Xxxxx shall repair or replace, at X.Xxxxx'x option and at no
cost to Customer, any unit of Equipment determined by X.Xxxxx to have defects in
material or workmanship. To initiate the repair or replacement of a defective
unit of Equipment, Customer must notify X.Xxxxx at (800) 627-PUMP and fully
complete and deliver to X.Xxxxx a Returned Material Authorization Form ("RMA").
All defective items must be properly packaged and shipped freight prepaid to
X.Xxxxx at the address indicated on the RMA. Any loss or damage during shipment
of any defective Equipment to X.Xxxxx shall be at the sole risk of Customer.
Only Equipment appearing on an RMA shall be acceptable for repair or
replacement. If X.Xxxxx determines that any defect or condition in any unit of
Equipment has been caused by the misuse, unauthorized modification, or abnormal
conditions of operation, X.Xxxxx shall repair the item at a cost to Customer
equal to its then current repair charges. In such case, X.Xxxxx shall provide
Customer with an estimate of the repair cost prior to making any repairs.
WARRANTY EXCLUSIONS
The Extended Limited Warranty shall not apply:
o to any cosmetic upgrades, including cosmetic bezels, case tops,
case bottoms and key pads;
1
o if any condition or defect is a result of the misuse, improper
cleaning or improper handling, negligence, abuse, accident or
improper maintenance of any party other than X.Xxxxx;
o if the Equipment and/or the repair kit is not used in accordance
with its instructions for use furnished by X.Xxxxx or is not used
for its intended purpose;
o if any repairs, alterations, or other work has been performed on
the Equipment or any component thereof by anyone other than X.Xxxxx
or a technician or repair facility authorized in writing by
X.Xxxxx; or
o the Equipment is altered in any manner that, in X.Xxxxx'x sole
judgement, affects its stability or reliability;
Batteries are not included in the Extended Limited Warranty. The Extended
Limited Warranty is valid only if the Equipment is operated and maintained as
described in X.Xxxxx'x operator's manuals, supplements or other operating
instructions. This Extended Limited Warranty does not extend to damages to, or
resulting in whole or in part from the use of, components, accessories, parts or
supplies not supplied by X.Xxxxx for use with the Equipment. Products or
components not manufactured by X.Xxxxx are not warranted by X.Xxxxx, and
Customer must rely on the warranties, if any, provided directly be the
manufacturer of such product or component.
Any defect or condition that has been caused by the misuse, unauthorized
modification, or abnormal conditions of operation, or that is otherwise excluded
from this Warranty, will be repaired by X.Xxxxx at its then current repair
charges. In this case, upon the request of Customer, X.Xxxxx will submit an
estimate of the repair cost to Customer prior to making any repairs.
EXCLUSIVE REMEDY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, X.XXXXX MAKES NO WARRANTY OF ANY KIND,
EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE
EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE
REMEDY OF CUSTOMER FOR BREACH BY X.XXXXX OF ANY WARRANTY PURCHASED BY CUSTOMER
HEREIN SHALL BE LIMITED, AT X.XXXXX'X SOLE ELECTION, TO THE REPAIR OR
REPLACEMENT OF THE UNIT OF EQUIPMENT OR ANY COMPONENT THEREOF OR THE SERVICES
PROVIDED. IN NO EVENT SHALL X.XXXXX BE LIABLE TO CUSTOMER FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR
LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR SERVICE
OF ANY EQUIPMENT OR THE PERFORMANCE, USE OR INABILITY TO USE THE EQUIPMENT OR
OTHERWISE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR
ANY OTHER LEGAL OR EQUITABLE THEORY.
X.Xxxxx neither assumes, nor authorizes any person to assume for it, any
additional liability or responsibility in connection with the Equipment and no
agent, employee or representative of X.Xxxxx has the right to modify or expand
the warranties set forth herein and no such modification or expansion should by
relied upon by Customer.
2
TERM
The Extended Limited Warranty shall remain in effect for the period identified
on the front page of this agreement, unless terminated earlier by X. Xxxxx due
to Customer's failure to pay any amounts due hereunder. In the event of
termination by X. Xxxxx, X. Xxxxx shall be entitled to the Annual Warranty Price
for the remainder of the warranty period as if such termination did not occur.
This Extended Warranty Program Agreement shall not become effective unless
signed below by X. Xxxxx.
Agreed to:
CORAM HEALTHCARE CORPORATION, X. XXXXX MEDICAL INC.
as debtor
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXX X. XXXX
--------------------------------- --------------------------------
(Customer Signature) (Authorized Signature)
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxxx X. Xxxx
------------------------- ------------------------
Title Senior Vice President, CFO & Title Executive V.P., Chief Sales &
Treasurer Marketing Officer
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Date April 11, 2003 Date April 11, 2003
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