PO Terms and Conditions

HORIZON HEALTHCARE SERVICES, INC. D/B/A HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY ("HORIZON") PURCHASE ORDER TERMS AND CONDITIONS

EACH PURCHASE ORDER ISSUED BY HORIZON CONSISTS OF (I) THE ELECTRONICALLY ISSUED ORDER INTO WHICH THE FOLLOWING TERMS ARE INCORPORATED, INCLUDING ALL PRINTED, STAMPED AND WRITTEN MATTER APPEARING THEREON (THE “FACE”), AND (II) THE FOLLOWING TERMS AND CONDITIONS ((I) AND (II) TOGETHER CONSTITUTING THE “ORDER”). IN THE EVENT HORIZON AND SUPPLIER HAVE ENTERED INTO A SEPARATE MASTER AGREEMENT (“MASTER AGREEMENT”) FOR THE GOODS AND/OR SERVICES DELIVERED PURSUANT TO A PURCHASE ORDER, THE TERMS OF SUCH MASTER AGREEMENT SHALL CONTROL RATHER THAN THE TERMS AND CONDITIONS HEREIN.

1. ACCEPTANCE OF ORDER BY SUPPLIER: This Order is an offer by Horizon to Supplier (as both parties are identified on the Face of the Order) that will become a binding contract when this Order is accepted by Supplier. Supplier may manifest its acceptance by signing the acknowledgement copy, sending to Horizon Supplier’s own acknowledgement or commencing work hereunder. Shipment or other commencement by Supplier of any part of this Order constitutes Supplier’s unconditional acceptance of all of the terms and conditions of this Order. Acceptance is expressly limited to the stated terms and conditions of this Order; in no event shall any terms or conditions contained in Supplier’s acknowledgement forms, invoices, billing statements or other documents become part of or apply to this Order whether or not signed by Horizon’s representatives, except in the form of an amendment made in accordance with Section 13.9 below expressly approving each such term or condition.

2. PACKING AND SHIPPING: Supplier agrees to suitably pack for shipment all goods so as to meet carrier's requirements and all containers will be marked to identify the contents without opening. Packing sheets must be placed both inside and outside of each package. Risk of loss shall not pass until goods are delivered in acceptable condition. Horizon’s complete Order number must appear on all invoices, shipping notices, packing slips, containers, bills of lading, packages, and correspondence pertaining hereto. Title passes at the destination point.

3. DELIVERY: Time and rate of delivery are of the essence. Supplier shall immediately notify Horizon, in writing, of any actual or potential delay to the performance of this Order. If any good or deliverable is not received or if any element of the work is not completed by the date specified, Horizon, at Horizon’s option and without prior notice to Supplier, may either approve a revised date or may cancel this Order and may obtain such goods or services elsewhere and in either event, the Supplier shall be liable to Horizon for any resulting loss incurred by Horizon. Supplier’s sole remedy for a delay caused by Horizon shall be an extension in the time for Supplier’s performance equal to the duration of Horizon’s delay.

4. INSPECTION:

4.1. The goods and services under this Order shall be received subject to Horizon’s right of inspection, rejection and revocation of acceptance. No substitution or modification of any goods may be made without Horizon’s prior written consent. Any goods and services that are not in conformity with Supplier’s representation and warranties set forth in this Order, or implied warranties of Supplier, may be returned to Supplier at Supplier’s expense or rejected, and will be promptly repaired, replaced or reperformed by Supplier on demand at no additional cost to Horizon, or at Horizon’s option, such goods or services may be repaired or reperformed by Horizon at Supplier’s expense. Supplier shall bear all costs of packing, shipping and transporting all defective or nonconforming goods. Payment of the purchase price prior to inspection shall not constitute acceptance by Horizon of the goods or services.

4.2. Supplier, at its own expense, shall furnish any parts, price lists, maintenance and repair instructions, documentation, manuals and sectional drawings requested by Horizon for goods and services supplied hereunder. Upon Horizon’s reasonable request, Supplier and its subcontractors shall provide Horizon and its representatives with reasonable access and information with respect to designs, facilities, materials and equipment used in connection with goods or services under this Order. On Orders for goods and services on time and material basis, Supplier’s cost and business records shall be retained by Supplier for at least one (1) year following the later of delivery and/or completion of the goods or services, and such records shall be subject to inspection by Horizon’s representatives. Horizon shall have the right to conduct reasonable inspection and testing of the manufacture of goods and performance of services pursuant to this Order. If inspection and testing is to be made on the premises of Supplier, Supplier will furnish, without additional charge, reasonable facilities, testing equipment and assistance for safe and convenient inspection or testing as reasonably required.

5. BILLING, PRICE AND PAYMENT:

5.1. Unless and except as otherwise stated on the Face of this Order, the price stated includes all packing and cartage costs to F.O.B. Destination freight prepaid and absorbed. Horizon shall not be responsible for any taxes or duties other than applicable sales and use taxes imposed by states or localities located in the United States unless otherwise expressly provided in this Order. Supplier agrees to submit invoices for all fees and expenses due under this Order through the Ariba Network or any other accounts payable system as may be required by Horizon from time to time unless otherwise agreed to by Horizon in writing. Supplier’s invoices will provide summary level expense reporting, will include, if requested by Horizon, receipts for expenses, will reference Horizon’s applicable Order number, and, if requested, any supplemental SOW Invoices must separately itemize applicable taxes and custom duties, if any. Invoices must be rendered as close to date of shipment of or completion of services as is possible, but not before such date of shipment or completion. Supplier acknowledges that Horizon is exempt from New Jersey Sales and Use Tax.

5.2. Supplier warrants that the prices for goods or services to be furnished to Horizon hereunder are not less favorable than those currently extended to any other customer for similar quantities of like items under similar delivery requirements.

5.3. Unless specified otherwise, Horizon will pay Supplier’s undisputed invoices sixty (60) days from receipt thereof, and Horizon shall receive a 3% discount on the invoice if paid within ten (10) days of the date of the invoice.

5.4. Upon notice to Supplier, Horizon may withhold payment for any item(s) on Supplier’s invoice(s) that Horizon reasonably disputes. Horizon will endeavor to work with Supplier in reaching an acceptable resolution of any disputed item(s), within a reasonable period of time. Pending settlement or resolution of the dispute, Horizon’s non-payment of such disputed item(s) shall not constitute default by Horizon and shall not entitle Supplier to suspend or delay delivery.

6. CHANGE ORDERS: Horizon shall have the right to make changes in (a) the specifications, drawings and samples, if any (b) the method of performance, shipment or packaging (c) the place and time of performance and (d) the goods or services including the quantities thereof, to be furnished by Supplier. If any such change causes an increase or decrease in the cost of, or time required for performance of this Order, an equitable adjustment shall be made in the Order price or performance schedule or both. Any claim by Supplier for adjustment under this clause must be asserted within thirty (30) days from the date of receipt by Supplier of the notification of change after which time such claim shall be deemed to have been waived by Supplier.

7. TERMINATION/CANCELLATION:

7.1. Horizon shall have the right to terminate all or any part of this Order by notice to Supplier in the event that (a) Supplier breaches or fails to perform any of its obligations hereunder, including with respect to time or rate of delivery of goods or services, (b) any representations or warranties of Supplier contained herein shall be incorrect or untrue to a material extent when made or at the time of delivery and/ or rendering of any goods or services to Horizon hereunder or (c) Supplier becomes insolvent or seeks relief under any bankruptcy or insolvency law, or if any bankruptcy, reorganization, arrangement, receivership or other insolvency proceeding shall be commenced by or against Supplier. Such termination shall become effective immediately upon receipt of such notice by Supplier, and Supplier will stop work immediately on the terminated portion of this Order, immediately notify subcontractors to stop work and protect property in Supplier’s possession in which Horizon has, or may acquire an interest. In the event of such termination, Horizon agrees to pay Supplier the undisputed fees for all goods or services which have been completed by Supplier and delivered to and accepted by Horizon, subject to Horizon’s right of revocation of acceptance.

7.2. Horizon shall also have the right to terminate all or any part of this Order, without cause by giving Supplier notice of its election to do so. Such termination shall become effective immediately upon receipt of such notice by Supplier, and Supplier will stop work immediately on the terminated portion of this Order, and Supplier will protect property in Supplier’s possession in which Horizon has, or may acquire an interest. Horizon agrees to pay Supplier the undisputed fees for all services which have been completed by Supplier subject to Horizon’s right of revocation of acceptance. In addition, with respect only to termination hereunder, Horizon agrees to pay Supplier’s reasonable out-of-pocket costs necessarily incurred by Supplier in the performance of this Order which are properly allocable to the terminated portion of this Order provided, however, that Supplier must use commercially reasonable efforts to mitigate such costs. Any claim for payment of such costs incurred by the Supplier must be submitted in writing to Horizon within forty-five (45) days of receipt of Horizon’s notice of termination, thoroughly documented by invoices or other applicable documents. Horizon shall have the right to audit all elements of any termination claim and Supplier shall make available to Horizon, on request, all books, records, and papers relating thereto in a form readable by Horizon.

7.3. The remedies provided in paragraph 7.1 and 7.2 above shall be Supplier’s exclusive remedies for Horizon’s termination and or rescission of this Order and Supplier shall have no other remedy, including, but not limited to, specific performance or loss of profits. Supplier will deliver to Horizon any property in which Horizon has an interest and for which Horizon shall make a written request at or after termination. Horizon shall have a right to purchase any such requested and delivered property that it has not paid for or does not own by paying Supplier the lesser of the contract price or fair market value of any such property. IN NO EVENT SHALL HORIZON BE LIABLE FOR LOST OR ANTICIPATED PROFIT, OR UNABSORBED INDIRECT COSTS OR OVERHEAD, NOR SHALL SUMS PAYABLE UNDER THIS SECTION 7 EXCEED THE UNPAID BALANCE OF THE PRICE STATED ON THE FACE OF THIS ORDER.

8. REPRESENTATIONS, WARRANTIES, COVENANTS: Supplier represents and warrants to Horizon, in addition to all warranties implied by law and otherwise provided in writing by the Supplier, manufacturer or service provider, that each good, deliverable or service delivered or performed hereunder shall: (a) be merchantable and fit for Buyer's intended purpose; (b) be free from defects in material, workmanship and design and if consisting of software, firmware or other services relating to Horizon’s information technology network, free of viruses or other harmful agents or hidden files; (c) if services, be performed in a professional and workmanlike manner in accordance with industry practice; (d) conform to all drawings, specifications and other descriptions, if any, referred to or set forth herein and all goods, if any, accepted by Horizon as samples; (e) comply with, be suitable for use under, be manufactured in accordance with and, where required, be registered under all applicable Federal, state and local laws, and all orders and regulations promulgated thereunder; and (f) not infringe, appropriate or encroach upon personal, contractual or proprietary rights of any third party. Supplier shall provide material safety data sheets with respect to hazardous chemicals as required by regulations of the U.S. Occupational Safety and Health Administration. HORIZON MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THIS ORDER EXCEPT IF AND AS EXPRESSLY CONTAINED HEREIN.

9. COMPLIANCE WITH LAWS: Supplier shall comply, and shall require all of its subcontractors to comply, with this Section 9, and perform the services and/or deliver any goods in compliance with all applicable laws, shall refrain from knowingly doing or performing any act that would subject Horizon to civil or criminal penalties or other liabilities or damages under any applicable law, and shall maintain all licenses required for Supplier to perform hereunder. Supplier shall comply with all equal opportunity, nondiscrimination and affirmative action obligations applicable to it directly, and, to the extent it has been advised of this applicability of such requirements to Horizon and the applicable thresholds have been met, to it as a contractor or subcontractor of Horizon, including, but not limited to, the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

10. INDEMNITY AND INSURANCE:

10.1. Indemnity.
Supplier shall indemnify Horizon and its employees and agents for any losses, liability, damage or expenses (including reasonable legal fees) that may occur as a result of (a) the tortuous acts or omissions or willful wrongful acts of, or material breach of the terms of this Order by, Supplier and its employees and agents, (b) any personal injury (including death) or property damage resulting from any defect or any act or omission of Supplier or its employees and agents with respect to any good or service that is the subject of this Order, and (c) any infringement of third party intellectual property rights resulting from any good or service that is the subject of this Order. Horizon shall notify Supplier and Supplier shall, if Horizon so requests, defend such action or proceeding using reputable counsel retained at Supplier’s expense. In no event shall Supplier be permitted to admit liability on Horizon’s behalf or to obligate Horizon to pay any monetary damages, costs or expenses. In addition, Horizon may appear and be represented by counsel of its own choosing at Horizon’s expense.

10.2. Insurance. Supplier will maintain, and when requested by Horizon, furnish certificates acceptable to Horizon evidencing insurance coverage as follows, except as may be specified on the Face of the Order:

a. Commercial general liability insurance, including contractual liability coverage, on an occurrence basis:

$3,000,000 general aggregate
$2,000,000 each occurrence
$3,000,000 products and completed operations aggregate
$1,000,000 fire legal liability

b. Business auto liability, covering all automobiles and other motor vehicles, whether owned, leased or otherwise hired, to afford protection for Bodily Injury and Property Damage, combined limit of $2,000,000 each accident. NOTE: Business auto liability insurance is required only when a Supplier is traveling on Horizon's behalf.

c. Workers' compensation insurance for not less than the following limits, or greater if required by law:

State: Statutory
Applicable Federal: Statutory
Employer’s liability:
1) $500,000 each accident;
2) $500,000 disease, policy limit; and
3) $500,000 disease, each employee.

d. Professional Liability (Errors and Omissions) insurance with a limit of not less than $2,000,000.

e. In addition to the limit requirement for commercial general liability, commercial umbrella coverage of not less than $5,000,000.

11. INTELLECTUAL PROPERTY RIGHTS: Supplier shall have no proprietary interest in any intellectual property or work product developed (hereafter “Intellectual Property”), in whole or in part, by Supplier and delivered in connection with its performance under this Order. Supplier agrees that any such Intellectual Property is a work made for hire, and that Horizon shall have all proprietary rights in such Intellectual Property.

12. CONFIDENTIALITY:

12.1. Any designs, specifications, drawings, reprints, technical information, business processes or methods, data or information furnished by Horizon to Supplier hereunder, including all secret, confidential or restricted matters that may be disclosed or developed in connection with the work to be performed under this Order (“Confidential Information”) shall remain Horizon’s property, shall be kept confidential by Supplier, shall be used only with respect to performance under this Order and shall be returned to Horizon or destroyed at Horizon’s request. Supplier shall be responsible for the safeguarding of Confidential Information. Each party agrees not to disclose or use at any time, either during or after termination of this Order, any proprietary or Confidential Information of the other party acquired or developed during the course of the engagement, and for a period of three (3) years thereafter. Supplier acknowledges and agrees that Supplier shall have no proprietary interest in or rights with respect to any information developed or obtained by Supplier regarding any Horizon Confidential Information during the course of this engagement.

12.2. Supplier shall not, without Horizon’s prior written consent, in any matter, divulge the fact that the Supplier has an Order to furnish goods or services to Horizon, or refer to Horizon in any customer list, marketing materials or other public release or statement.

13. GENERAL:

13.1 Failure of Horizon to enforce any provision at any time shall not act as a waiver of that provision or any other provision hereof at any subsequent time. All rights and remedies granted to Horizon hereunder shall be cumulative and not exclusive and shall be in addition to and not in lieu of Horizon’s rights arising under this Order or otherwise.

13.2. All of the terms and conditions hereof shall apply to additional goods and services ordered by Horizon except to the extent covered by a new Order.

13.3. This Order shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to its conflicts of law provisions. The courts sitting in the State of New Jersey shall have sole jurisdiction over the parties with respect to any dispute or controversy between them in connection with this Order and each of the parties submits to the jurisdiction of those courts.

13.4. Should any of the provisions of this Order be declared by any court of competent jurisdiction to be invalid, such decision shall not affect the validity of any remaining provisions hereof.

13.5. None of Supplier’s rights or obligations under this Order may be assigned without Horizon’s prior written consent.

13.6. Supplier shall not be responsible for delays or defaults in deliveries, nor shall Horizon be obligated to pay for such defaulted deliveries, if occasioned by wars, strikes, fire, an act of God or a public enemy, labor or transportation difficulties or other causes beyond the control of the affected party, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by Supplier through the use of alternate sources, work-around plans or other means.

13.7. All notices and other communications by either party under this Order shall be in writing and shall be deemed to have been given or made as of the date received if sent by personal delivery, first class mail, postage prepaid, or recognized courier to the other party at the address of such party indicated on the Face of this Order.

13.8. Horizon may issue Orders for the benefit of its affiliates and subsidiaries. In such cases, Horizon shall remain responsible for its obligations under the Order, but any such affiliate or subsidiary as well as Horizon may enforce Horizon’s rights under the Order.

13.9. This Order contains the entire understanding between the parties with respect to the subject matter contained herein and supersedes all prior or contemporaneous oral or written agreements concerning this subject matter. If a Master Agreement governing the delivery of the goods or services under this Order is in place, the terms and conditions of such Master Agreement, and not of this Order, shall govern. This Order may only be modified in a writing signed by Horizon’s authorized representative expressly approving the specific modification.

13.10. Horizon and Supplier each specifically disclaim provisions of the Uniform Commercial Code herein. If there is a conflict between the Uniform Commercial Code and this Order, this Order shall control.

13.11. Supplier hereby expressly acknowledges its understanding that this Order constitutes a contract between Supplier and Horizon, which is an independent corporation operating under licenses from the Blue Cross and Blue Shield Association (the "Association") permitting Horizon to use the "Blue Cross" and "Blue Shield" names and marks in the State of New Jersey; that Horizon is not contracting as the agent of the Association; that Supplier has not entered into this Order based upon representations by any person other than Horizon; and that no person, entity, or organization other than Horizon shall be held accountable or liable to Supplier for any of Horizon's obligations to Supplier created under this Order. This Section 13.11 shall not create any additional obligations on the part of Horizon other than those obligations created under other provisions of this Order.