The purchase of all products by you from Foundation Care, LLC (“Foundation Care”) will be subject to and governed by these terms and conditions of sale (the “Conditions”). Foundation Care’s acceptance of any order or other offer by you (whether in writing, by telephone or otherwise) for any products will be conditioned upon your assent and agreement to these Conditions. By ordering or accepting any products from Foundation Care or its agents, you as the purchaser agree to the following Conditions:
New Accounts.
You may establish an account with Foundation Care by calling toll-free 833-291-2773 and providing an account representative with information as requested. You will also be required to submit a completed, signed credit application and other financial documentation as required. Foundation Care, it its sole discretion, may extend credit dependent on each account’s credit worthiness. Some products sold by Foundation Care may be eligible for 340B pricing. If you are a 340B Covered Entity, it is your responsibility to notify Foundation Care of such fact. Foundation Care will furnish an attestation that you must complete in order to initiate the process of validating such 340B Covered Entity status and opening a separate 340B account. At all times that you purchase products eligible for 340B pricing under your 340B account, you are solely responsible for complying with all applicable 340B requirements, including, but not limited to, completing annual or other Health Resources and Services Administration (“HRSA”)-required re-certifications and submitting to audits by the federal government and/or the applicable drug manufacturer(s). By purchasing products under a 340B account, you agree: (i) you are a 340B Covered Entity in good standing and that your status has not changed following Foundation Care’s initial validation process; and (ii) you are solely responsible to the applicable drug manufacturer(s) for refunds of 340B discounts improperly received. If you have a 340B account, you agree to notify Foundation Care in writing within one (1) business day of any event that gives rise to, or could give rise to, your loss of 340B Covered Entity status.
For purposes of these Conditions, “340B Covered Entity” means an entity enrolled in the 340B drug pricing program, as defined by Section 340B(a)(4) of the Public Health Services Act, and listed as a participating eligible 340B Covered Entity in OPAIS database on the HRSA website.
Price.
Prices are subject to change by Foundation Care without notice. Prices billed are the prices in effect at the time the order is shipped. Any additional costs incurred by Foundation Care in connection with or arising out of the sale, shipping or distribution of product to you, including, but not limited to, increases in labor, freight and materials cost before shipment of order and applicable overhead, may be invoiced to you and you agree to pay same. Prices are subject to all taxes, excises, or other federal, state, or local taxes or other surcharges or assessments that Foundation Care is at any time obligated to pay or collect based on, or in any way levied on, the sale of products and/or services, or the products or any services related thereto. In addition, you will be obligated to pay all interest or penalties assessed by reason of your failure to comply with your obligations hereunder. If Foundation Care pays any amounts which you are obligated to pay, then you will promptly reimburse Foundation Care in an amount equal to the amount paid by Foundation Care.
Price Errors.
Pricing errors may occur on from time to time, on items sold by Foundation Care. Foundation Care attempts to correct all pricing errors promptly after discovery or after Foundation Care receives notice of an error. Foundation Care reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Foundation Care. Any payments you make to Foundation Care for orders that are cancelled due to pricing errors will be refunded.
Orders/Shipment.
All orders are subject to acceptance by Foundation Care or its agents at its principal place of business. Notwithstanding any other provisions, whenever Foundation Care, in its sole discretion, has any doubt as to buyer’s credit or ability to make payment in cash, Foundation Care reserves the right to require payment in advance of shipment. Foundation Care reserves the right to discontinue a previous extension of credit at any time, without prior notice. Foundation Care’s current hours for customer sales and service are 8:00 am to 5:30 p.m. CST. Foundation Care has the sole right to utilize the shipping method and carrier of its choice. Foundation Care will not pay or be liable for any penalty or damage, whether liquidated or otherwise, for late delivery. Shipping dates are approximate and are not guaranteed. Title to product and risk of loss passes to you upon delivery to the carrier. You assume all risk of loss in shipping and all liability for loss or damages, whether direct, indirect, consequential or otherwise, due to delays once the products have been delivered to the carrier and you hereby agree to indemnify, defend and hold harmless Foundation Care and its officers, directors, employees and agents (the “Agents”) from and against any claims, losses, costs, expenses, liabilities, suits, fines, penalties, orders, judgments or other assessments of any kind or nature whatsoever (including reasonable attorney’ fees and court costs) caused by, resulting from or otherwise related to such loss or damage of products.
Product Availability.
Items in stock are available for prompt shipment. In the event of excess demand, or short supply, Foundation Care may allocate its inventory among its customers as it deems appropriate. Foundation Care reserves the right to discontinue and withdraw from the marketplace any product, product size, or packaging at any time without further obligation.
Payment Terms.
All payments shall be made in full, in immediately available good funds, and in accordance with the payment terms on your invoice, via ACH direct debit or other payment forms acceptable to Foundation Care. Your payment obligations are in no way contingent upon your receipt of payment from any third party. Until product is paid for in full, Foundation Care retains, and you hereby grant to Foundation Care, a security interest in the ordered product. Foundation Care may assess a service charge calculated at the rate of 1.5% per month (or the maximum rate allowed by law, if such rate is less than 1.5% per month) on any amount not paid to Foundation Care when due. Failure or delay by Foundation Care to invoice you for any such service charge will not waive Foundation Care’s right to receive the same. In the event of default in payments on any invoices, Foundation Care shall have the right to declare all invoices immediately due and payable. You agree to pay all out-of-pocket expenses, including attorneys’ fees and costs, incurred by Foundation Care to collect any amounts due from you or to otherwise enforce any of the terms stated herein. Foundation Care (including its affiliates, subsidiaries, parent or related entities, individually or collectively) may exercise a right of set-off against any and all amounts due to you. Foundation Care shall be deemed a single creditor for purposes of this section.
Force Majeure.
Foundation Care shall be excused from its obligations hereunder in whole or in part to the extent its performance is delayed or prevented by strikes, work stoppages or disputes, fires, floods, war (declared or undeclared), riots, loss or destruction of product, non-availability or delays of transportation, embargoes, accidents, delay or failure of Foundation Care's suppliers to make delivery of material, shortages of material or labor, restrictions, limitations, obligations, taxes, assessments, duty or fee imposed by any government or governmental authority, domestic or foreign, or any other cause beyond Foundation Care's control. In such circumstances Foundation Care's obligations hereunder shall be suspended for so long as any such contingency continues, and you agree to extend, and are deemed to extend, for a corresponding period, any letters of credit or trade acceptance opened by you in respect to such shipment or delivery, provided, however, that if any shipment or delivery hereunder shall be so prevented for more than ninety (90) days, either Foundation Care or you shall have the right to cancel the contract, but only with respect to such shipment or delivery, by written notice to the other.
Credit.
Foundation Care may at any time, in its sole discretion, limit the amount of credit to be extended to you and cancel any order with respect to all or any undelivered product if Foundation Care shall deem such action advisable for credit reasons. You hereby represent and warrant that you are solvent and financially able to comply with your payment obligations, and agree that such representation and warranty shall be deemed repeated upon each order and/or delivery hereunder. In the event that you become insolvent or otherwise unable to comply with your payment obligations hereunder before the order or delivery of products, you will so notify Foundation Care in writing. Any failure to notify Foundation Care in writing will constitute a reaffirmation of your solvency at the time of order or delivery.
Generic Substitutions.
You hereby authorize Foundation Care to substitute one generic manufacturer's product for the equivalent product of another generic manufacturer without prior notice to you.
Returns.No returns will be accepted.
Product Recall.
If any governmental agency with jurisdiction over the recall of any products supplied hereunder or the manufacturer orders the recall of such products, Foundation Care will immediately communicate such recall to you and you will cooperate with Foundation Care or the manufacturer as directed by Foundation Care or the manufacturer to comply with such recall.
Licensure/Permits.
You warrant that you have all required governmental licenses, permits and approvals required to purchase, use and/or store the products you purchase from Foundation Care.
Own Use.
Sales are made with the express understanding and agreement that product is being purchased for use only in the purchaser’s medical practice, and is not intended to be sold or transferred for further sale or resale by retailers, wholesalers or other parties. Foundation Care may immediately terminate your ability to make purchases if Foundation Care determines that you or any facility owned, operated, or managed by you, directly or indirectly, has breached this “own use” limitation. You will comply with all laws, rules and regulations applicable to products purchased hereunder.
Warranty.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
Warranty Disclaimer.
Foundation Care does not manufacture, inspect or test the products it distributes. The manufacturer of the products may warrant certain aspects of the products.
Limitation of Liability.
IN NO EVENT SHALL FOUNDATION CARE BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OR LOSSES OF ANY NATURE OR FOR LOST REVENUE, LOST PROFITS OR LOST BUSINESS ARISING OUT OF YOUR PURCHASES FROM FOUNDATION CARE, THE USE OF PRODUCTS, OR FOUNDATION CARE’S FAILURE TO DELIVER ORDERED PRODUCTS. IN NO EVENT SHALL FOUNDATION CARE’S LIABILITY FOR ANY ORDER OR PRODUCT UNDER THIS AGREEMENT EXCEED THE PRICE AND FEES ACTUALLY PAID BY YOU FOR SUCH ORDER OR PRODUCT. FOUNDATION CARE’S SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR BREACH HEREUNDER WILL BE, AT FOUNDATION CARE’S OPTION, TO REPAIR OR REPLACE THE PRODUCT.
Discount Disclosure.
If you receive any “discounts or other reductions in price” under Section 1128B(b)(3)(a) of the Social Security Act (42 U.S.C.1320- 7b(b)(3)(a)) from Foundation Care, you may be required to disclose the discounts or reductions in price under any state or federal program which provides cost or charge-based reimbursement to you for the products or services you buy from Foundation Care, or as otherwise requested or required by any governmental agency. You hereby agree to indemnity, defend and hold harmless Foundation Care and its Agents from and against any claims, losses, costs, expenses, liabilities, suits, fines, penalties, orders, judgments or other assessments of any kind or nature whatsoever (including reasonable attorney’ fees and court costs) caused by, resulting from or otherwise related to your failure to perform such disclosure obligations.
Governing Law.
This Agreement and all communications, disputes and performance related hereto shall be governed by and construed according to the laws of the State of Missouri without regard to the conflict of law provisions thereof.
No Assignment.
No rights hereunder or arising out of these terms and conditions may be assigned by you without the express written consent of Foundation Care.
Waiver.
No waiver by Foundation Care of any default or failure by Foundation Care to enforce a right hereunder shall be deemed a waiver of any right or prior or subsequent default.
Confidentiality.
You agree that all information on our Ordering Site, this Agreement, and your purchase terms, including, but not limited to, price, are confidential and may not be disclosed to third parties.
Alteration.
Any attempt to alter, supplement, or amend these Conditions, or to enter an order for product(s) which is (are) subject to additional or altered terms and conditions, will be null and void, unless otherwise agreed to in a written agreement signed by both you and Foundation Care.
[ARBITRATION; JURISDICTION AND VENUE ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING FROM THE SALE OF PRODUCTS BY FOUNDATION CARE TO YOU SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES. ALL SUCH ARBITRATION PROCEEDINGS SHALL TAKE PLACE IN ORLANDO, FLORIDA. IN THE EVENT THERE IS ANY LITIGATION RELATING TO THIS PARAGRAPH REQUIRING ARBITRATION OR ANY OTHER MATTER THAT IS FOUND NOT TO BE SUBJECT TO ARBITRATION, THEN THE PARTIES IRREVOCABLY AGREE THAT JURISDICTION AND VENUE IN ANY SUCH LAWSUIT SHALL PROPERLY (BUT NOT EXCLUSIVELY) LIE IN THE FEDERAL OR STATE COURTS LOCATED IN ORLANDO, FLORIDA AND THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT AND HEREBY WAIVE ANY OBJECTION THAT SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH ACTION AND THE PARTIES HEREBY WAIVE ANY RIGHTS TO HAVE A TRIAL BY JURY.]
Entire Agreement.
By purchasing products from Foundation Care, you agree to be bound by and accept these Conditions. These Conditions do not supersede, waive or otherwise affect any security agreements, guarantees, credit applications or other agreements between you and Foundation Care, none of which may be amended except by a writing signed by each party. You acknowledge and agree that Foundation Care reserves the right to amend these terms and conditions in its sole discretion as it sees fit from time to time.