General Terms and Conditions
Effective date: 08/12/22
- Agreement. The Donor Procurement Services Purchase Order (“Purchase Order”) together with these General Terms and Conditions are collectively the “Agreement” between Paragonix and Customer for the Donor Procurement Services as set forth on the Purchase Order.
- Donor Procurement Services. Donor Procurement Services provided by Paragonix are limited to those Donor Procurement Services identified in the Purchase Order. Paragonix is not responsible for any other items or services related to organ procurement or otherwise, including, but not limited to, tissue typing of donated organs, screening potential organ donors, providing written donor information to Customer including the blood type and other identifying information about the procured organ, or furnishing information to Customer’s organ procurement organization regarding the donor or recovered organ. Customer acknowledges and agrees that Paragonix may provide some or all Donor Procurement Services through a third-party contracted with Paragonix. Paragonix shall be responsible for providing or arranging on behalf of Customer all Donor Procurement Services as selected by Customer in the Purchase Order. Customer acknowledges that Paragonix has identified to Customer the surgeons who may be available to perform organ recovery surgical services and has furnished information to Customer regarding each such surgeon’s qualifications. Customer acknowledges and agrees that Customer has had opportunity to review surgeon qualifications and has provided advance written notice to Paragonix of any objections to the use of any particular surgeon(s) to provide Donor Procurement Services to Customer. Paragonix shall ensure that the surgeon(s) identified in Customer’s written objection do not provide organ recovery services for Customer consistent with any such advance written objection by Customer. Paragonix does not guarantee the availability of any surgeon to provide organ recovery services for Customer. Customer shall notify Paragonix in advance of any vendor screening requirements or other requirements of Customer for Paragonix and its employees or independent contractors to have appropriate and timely access to facilities.
- Transportation Services. Costs for Air Charter Services include the hourly rate for aircraft based on aircraft size and aircraft type and any fees and expenses incurred with Air Charter Services, including, but not limited to: (i) landing fees; (ii) crew and managing expenses; (iii) catering; (iv) ground handling and ramp fees; (v) ground transportation and de-icing costs; and (vi) day rooms for crew required to extend duty days. A minimum of two (2) hours will be charged for Air Charter Services. The number of hours shall
be computed in hours and tenths of hours from the time the aircraft begins its taxi until the time the aircraft is stopped at the fixed base operator at the arrival point. If any Air Charter Services involve positioning or repositioning of the aircraft, the number of hours required for such positioning flights shall be included in the number of hours utilized and payable by Customer. Cancellation fees will apply if any aircraft movement has occurred, or the flight crew has been dispatched, prior to Customer notifying Paragonix that Customer wishes to cancel Air Charter Services. If the aircraft has been dispatched prior to Customer’s cancellation, Customer will be responsible for paying the hourly charge for the actual amount of flying time of the aircraft and all associated fees and expenses incurred. If the aircraft has not been dispatched, Customer will be responsible for paying twenty percent (20%) of the estimated flight charge and any fees and expenses incurred. Customer shall be liable for the full costs for all Transportation Services in the event an organ is declined after the surgical team has reached the destination airport.
- Professional Standards. Paragonix shall comply, and shall cause its employees and independent contractors providing Donor Procurement Services to comply, with all applicable professional standards and applicable laws in the delivery of Donor Procurement Services. Customer acknowledges and agrees that Paragonix has made no other implied or express representation, warranty, or condition with respect to Donor Procurement Services provided pursuant to this Agreement. Customer agrees to immediately notify Paragonix of any actual or suspected noncompliance with applicable laws or professional standards by Paragonix or any of its employees or independent contractors in the delivery of Donor Procurement Services to Customer, or any other issues in the delivery of Donor Procurement Services, including, but not limited to, any issue that raises quality or safety concerns.
- Independent Contractors. None of the provisions of this Agreement are intended to create nor shall be deemed or construed to have created any relationship between Paragonix and Customer other than that of independent entities contracting with each other solely for the purpose of effectuating the provisions of this Agreement.
- Exclusion. Each Party represents and warrants that neither such Party nor any of its current officers, directors, employees or independent contractors who provide items or services under this Agreement is excluded or debarred from participating in any state or federal healthcare programs.
- Insurance. Paragonix shall carry and maintain at its own expense, and, where applicable, shall cause its independent contractors providing Donor Procurement Services to carry and maintain at their own expense, insurance policies issued by an insurance company with a rating of A – XII or better from A.M. Best (or such higher coverage and rating as may be required by law) in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for the business of Paragonix in providing Donor Procurement Services.
- Confidentiality. Each Party (each, a “Receiving Party”) shall treat as confidential, any non-public information received, directly or indirectly from the other Party (each, a “Disclosing Party”) that would be understood by a reasonable person to be proprietary or confidential, including, but not limited to, the terms of this Agreement (“Confidential Information”). Except with the prior written consent of the other Party, neither Party may disclose or use any Confidential Information in any manner or for any purpose, including, but not limited to, advertising or promotional materials; provided, however, that either Party may disclose the terms of this Agreement to its officers, directors, employees, attorneys, financial advisors, auditors, and accountants who have a reasonable need to know such information. Confidential Information shall not include information which (i) is, at the time disclosed, known or thereafter becomes known or available to the general public through no act or omission of Receiving Party which is in violation of Receiving Party’s obligations under this Agreement, (ii) was in Receiving Party’s lawful possession prior to such access to or the disclosure of the same and had not been obtained by Receiving Party either directly or indirectly from Disclosing Party, (iii) is disclosed to Disclosing Party by a third party having the right.
- Regulatory Compliance. The Parties agree that this Agreement is a commercially reasonable, fair market value arrangement for the Donor Procurement Services and in good faith believe that this Agreement complies with the federal Anti-Kickback Statute and any other federal or state law governing fraud and abuse. Neither Party is, by virtue of this Agreement or otherwise, willfully offering, paying, soliciting or receiving remuneration to induce or reward referrals to or from each other of any item or service reimbursed under Medicare, Medicaid or any other federal or state health care programs. Compensation under this Agreement has been determined in advance through a process of arms-length negotiation and does not take into account the volume or value of referrals or other business generated between the Parties for which payment may be made in whole or in part under Medicare, Medicaid or any other federal or state health care program.
- Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL PARAGONIX OR ITS SUBCONTRACTORS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT PARAGONIX HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, CUSTOMER’S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE SHALL NOT EXCEED, AND CUSTOMER’S EXCLUSIVE REMEDY IN ANY EVENT SHALL BE LIMITED TO, THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES.
- Indemnification. EACH PARTY (EACH, AN “INDEMNIFYING PARTY”) SHALL INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY, INCLUDING THE OTHER PARTY’S DIRECTORS, OFFICERS, SUB-CONTRACTORS, AND EMPLOYEES (EACH, AN “INDEMNITEE”) HARMLESS FROM ANY AND ALL THIRD PARTY CLAIMS WHICH AN INDEMNITEE MAY SUSTAIN OR INCUR AS THE RESULT OF THE INDEMNIFYING PARTY’S (I) VIOLATION OF ANY LAW, (II) BREACH OF THIS AGREEMENT, OR (III) NEGLIGENT OR WILLFUL ACT, OMISSION, OR CONDUCT, INCLUDING BY ANY OF THE INDEMNIFYING PARTY’S PERSONNEL, EMPLOYEES, SUB-CONTRACTORS OR AGENTS (INCLUDING IN THE EVENT OF THE ACTUAL OR ALLEGED JOINT NEGLIGENCE OF THE INDEMNITEE, BUT ONLY TO THE EXTENT OF THE INDEMNIFYING PARTY’S ACTUAL PROPORTIONATE NEGLIGENCE) OCCURRING IN THE COURSE OF THE INDEMNIFYING PARTY’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. THE INDEMNIFYING PARTY’S OBLIGATIONS HEREUNDER ARE CONDITIONED ON (A) THE PARTY SEEKING INDEMNIFICATION PROVIDING PROMPT WRITTEN NOTICE THEREOF AND REASONABLE COOPERATION, INFORMATION, AND ASSISTANCE IN CONNECTION THEREWITH AND (B) IT HAVING SOLE CONTROL AND AUTHORITY TO DEFEND, SETTLE OR COMPROMISE SUCH CLAIM. THE INDEMNIFYING PARTY SHALL NOT BE RESPONSIBLE FOR ANY SETTLEMENT IT DOES NOT APPROVE IN WRITING.
- Dispute Resolution. Any differences, claims or matters in dispute arising between the parties out of this Agreement shall be submitted by the parties to arbitration by the American Arbitration Association or its successor, and the determination of the arbitrator shall be final and absolute. The arbitration shall be submitted to a single arbitrator and take place in Cambridge, Massachusetts at a location to be agreed upon by the Parties. The arbitration shall be governed by the rules and regulations of the American Arbitration Association Commercial Arbitration Rules, and the pertinent provisions of the laws of the Commonwealth of Massachusetts relating to arbitration. The decision of the arbitrator may be entered as a judgment in any court of the Commonwealth of Massachusetts or elsewhere.
- Attorney’s Fees. If any action at law or in equity is brought to enforce or interpret provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which it may be entitled.
- Force Majeure. Paragonix shall not be responsible for delays or errors in performance under this Agreement occurring by reasons or circumstances beyond its control, including, without limitation, acts of civil or military authority, national emergencies, fire, flood or catastrophe, acts of God, insurrection, war, riots, or failure of transportation, communication or power supply.
- Governing Law. This Agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts, without giving effect to its conflict of law provisions.
- Changes in Law. If there is a change in any law, regulation or rule, state or federal, which adversely affects this Agreement or the activities of either Party under this Agreement, or any change in the judicial or administrative interpretation of any such law, regulation or rule or if any of the provisions of this Agreement are found to be in violation of the laws existing at the time of such determination, and either Party reasonably believes in good faith that the change, interpretation or determination will have a substantial adverse effect on that Party’s business operations or its rights or obligations under this Agreement, then the Party may, upon written notice, require the other Party to enter into good faith negotiations to renegotiate the terms of this Agreement and to take any action necessary to maintain compliance with such laws, rules or regulations. If the Parties are unable to reach an agreement concerning the
modification of this Agreement within the earlier of forty- five (45) days after the date of the notice seeking renegotiation or the effective date of the change in law, either Party may terminate this Agreement immediately by written notice to the other Party.
- Notices. All notices, requests and communications required or permitted hereunder shall be in writing and shall be sufficiently given and deemed to have been received upon personal delivery or delivery by overnight courier or, if mailed, upon the first to occur of actual receipt or seventy- two (72) hours after being placed in the United States mail, postage prepaid, registered or certified mail, receipt requested, addressed to the Parties at the addresses set forth in the Purchase Order.
- Waiver. Waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any prior, concurrent or subsequent breach of the same or similar provision. None of the provisions of this Agreement shall be considered waived by either Party except when such waiver is given in writing.
- Non-Solicit. For a period of two years following the termination date of this agreement, Customer will not solicit, directly or indirectly, on its own behalf or on behalf of any other person(s), any employees or contractors of Paragonix (including Transplant Advocates) that has provided Donor Procurement Services pursuant to this Agreement for the purposes of direct employment. with the exception of contracting directly with Transplant Advocates. Nothing in this contract prohibits Customer from contracting with Transplant Advocates to maintain continuity of care after Agreement for Services with Paragonix is no longer active.
- Severability. If any term or provision of this Agreement is to be held illegal, invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law; and in lieu of each such illegal, invalid or unenforceable provision the Parties shall use their best reasonable efforts to add as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be legal, valid, and enforceable.
Binding Effect; No Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and permitted assigns. Nothing in this Agreement is intended, nor shall be deemed, to confer any benefits on any third party, including, without limitation any patients of the other Party, nor shall such person or entity have any right to seek, enforce or recover any right or remedy with respect hereto.
- Assignment. Customer may not assign or subcontract any rights or obligations under this Agreement without the prior written consent of Paragonix. Paragonix may assign this Agreement to an affiliate or a successor in interest to Paragonix assets and business in Paragonix’s sole discretion. Notwithstanding the foregoing, and for the avoidance of doubt, Customer acknowledges and agrees that Paragonix may subcontract with a third-party to provide Donor Procurement Services to Customer.
- Amendments. This Agreement and each of its provisions shall be binding upon the Parties and may not be waived, modified, amended or altered except by in writing signed by the Parties.
- Drafting. No provision of this Agreement shall be interpreted for or against any party on the basis that such party was the draftsman of such provision, and no presumption of burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
- Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
- Entire Agreement. This Agreement contains the entire agreement of the Parties concerning the subject matter described herein and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter described herein. This Agreement supersedes any prior written or oral agreements between the Parties concerning the subject matter described herein.
- No Conflict. Customer represents and warrants that its execution and performance of this Agreement does not and will not conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, or require any consent under any agreement between Customer and any other party. Customer will defend, indemnify and hold harmless Paragonix from and against any and all losses arising out of or resulting from Customer’s breach of any representation or warranty in this section.
- Warranty of Authority. The person(s) executing this Agreement on behalf of the Parties, or representing themselves as executing this Agreement on behalf of a Party, warrant and guarantee that each has been duly authorized by the appropriate Party to execute this Agreement on behalf of the Party and to validly and legally bind the Party to all of its terms, performances, and provisions.
- Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures or Customer acknowledgment to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.