1. Complete Agreement. This Purchase Order (“PO”) constitutes Centene’s offer to Vendor and shall become binding unless Vendor gives Centene written notice of objection within ten (10) days following Vendor’s receipt hereof. Additionally, Vendors commencement of work or shipment of goods subject to this PO shall be deemed an effective mode of acceptance of this PO. The specifications on the face of this PO, these terms and conditions, any other special conditions in a schedule attached hereto, and any specifications or other documents referenced in such schedule or on the face of this PO constitute the entire agreement between Centene and Vendor and supersede all previous communications, either written or oral, with respect to the subject matter of this PO. This PO expressly limits acceptance to the terms and conditions stated herein, which terms and conditions may not be varied except by a writing referencing the number of this PO and signed by Centene’s duly authorized representative. Any reference on the face of this PO to Vendor’s proposal or any other document published by Vendor shall be deemed to incorporate only the description of the goods, services, and prices offered by Vendor and not any standard printed terms or conditions of Vendor’s documents.
2. Right to Know Information. If Vendor is supplying any chemicals under this PO, Vendor shall supply Material Safety Data Sheets as well as appropriate labeling as required by OSHA (29 CFR 1910.1200) and such additional documentation and information as may be required under similar applicable laws and regulations for chemical substances. Failure to conform to these requirements will be justification for rejection by Centene in accordance with paragraph 7 below.
3. No Waiver. Failure of Centene to insist on performance of any of the terms and conditions or requirements of this PO shall not be construed as a waiver of such terms, conditions or requirements, and shall not affect the right of Centene thereafter to enforce each and every term, condition or requirement. IN NO EVENT SHALL CENTENE BE LIABLE TO VENDOR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
4. Governing Law. This PO shall be governed by and construed in accordance with the laws of the State of Missouri without regard to principles of conflicts of laws.
5. Time of Essence and Force Majeure. Shipment and delivery date(s) specified are of the essence of this PO. However, Vendor shall not be liable for delays in manufacture or delivery of goods and performance of services to the extent such delays are due to causes beyond Vendor’s reasonable control and provided Vendor uses its best efforts to remedy the situation and first allocates all available production and deliveries to Centene, and provided further that Vendor has notified Centene promptly (but in any event within seven days) of the occurrence which causes such delay. Centene shall not be liable to accept any part of such goods and services which are delayed and may, at its option, cancel the PO. Causes deemed beyond a party’s reasonable control include acts of God, acts of civil or military authorities, fires, epidemics, war or riot, and acts of the other party. Whenever Vendor has knowledge of a condition or event that may delay or lead to a delay in the timely performance of this PO, Vendor shall immediately give notice thereof, including all relevant information with respect thereto, to Centene. Vendor agrees to insert the substance of this clause in any subcontract hereunder, with appropriate changes as to the identity of the parties. Centene may delay delivery or acceptance of goods or services, or this PO may be canceled by Centene at any time prior to delivery if its business is interrupted by causes beyond Centene’s reasonable control, provided that Centene shall give prompt notice to Vendor. Vendor shall hold goods at the direction of Centene and shall deliver them when the cause of the delay has been removed.
6. Shipping Instructions. Packing slips must accompany each shipment and should clearly identify the Centene PO number. Centene’s count will be accepted as final and conclusive on all shipments not accompanied by packing slips. All articles are to be suitably packed or otherwise prepared for shipment so as to secure the lowest transportation and insurance rates and to meet carrier requirements. No charges will be allowed for drayage, boxing or packing unless specifically stated on the PO. Goods must be shipped as provided for in this PO, or additional shipping and handling costs will be back charged to Vendor. In the absence of such instructions, shipments shall be routed via the most economical mode of commercially reasonable transportation available consistent with the time requirements established for the PO and risk of loss on the goods shall be borne by Vendor until delivery at the facility or destination designated by Centene.
7. Right to Reject; Specifications. All goods and/or services furnished will be subject to inspection and testing upon arrival or performance, and such goods and/or services found by Centene in its sole discretion to be not in accordance with the specifications, drawings, plans, instructions, samples or otherwise not in conformance with the terms of this PO shall be subject to rejection, return and back charge as appropriate, together with the necessary costs of handling and shipping. Centene’s payment of all or any part of the purchase price prior to such inspection, testing and non-acceptance of the goods and/or services involved shall not constitute a waiver of any of Centene’s rights hereunder. If Vendor fails to promptly correct defects in or replace nonconforming goods or services, Centene may make such corrections or replace such goods and services, and charge Vendor any cost incurred. Goods supplied in excess of quantities stated in this PO may be returned to Vendor at its expense.
8. Representations and Warranties. Vendor represents and warrants that:
(a) All goods and services covered by this PO are unencumbered and will conform to the design and performance specifications, drawings, plans, instructions, samples or other description furnished or adopted by Centene; will be well made, of good materials, merchantable, fit and sufficient for the purpose intended, including any special requirements of Centene which have been disclosed to Vendor; shall be free from defects, whether latent or patent, in material and workmanship; and, in the case of edibles, shall be wholesome and fit for human consumption. Vendor shall immediately replace or repair free of charge, f.o.b. Centene’s location, any goods supplied hereunder which prove to be defective in workmanship or material.
(b) Vendor shall comply with all applicable local, state and federal laws, rules, regulations and ordinances, including without limitation the Occupational Safety and Health Act of 1970 and the standards and regulations issued thereunder, and all goods and services furnished hereunder will comply with said laws, rules, ordinances, standards and regulations.
(c) Vendor shall consider all information furnished by Centene to be confidential and shall not use or disclose Centene’s confidential information to others. This includes information which Vendor may come within the knowledge of or which may be developed by Vendor or its employees in performance under this PO. This provision shall not prevent Vendor from using or disclosing to others information which Vendor can show: has become part of the public domain other than by breach of this Section; has been furnished to Vendor by third parties as a matter of right and without restriction on disclosure or use; or which was in Vendor’s possession at the time it received this PO. Vendor agrees that all drawings, specifications, data, memoranda, calculations, notes and other material provided by Centene or produced by Vendor under this PO or any copies thereof are the property of Centene and shall be delivered to Centene at the completion or termination of the work or at any time upon request of Centene.
(d) Vendor has not made, and shall not make any payments, directly or indirectly, by or on behalf of Vendor to or for the benefit of any employee or agent of Centene who may reasonably be expected to influence the decision to requisition, issue or take any action with respect to this PO.
(e) The prices for goods or services provided to Centene hereunder are as favorable as those currently offered to its other customers for the same or similar items in similar quantities. If Vendor reduces its price for any goods or services during the term of this PO, Vendor agrees to reduce the price hereof correspondingly.
9. Intellectual Property; Claims for Infringement: All work product developed by Vendor under this PO, including but not limited to designs, technical data, reports, blueprints, drawings and programs, shall be Centene’s property and may be used, disclosed, or transferred by Centene in any manner it finds appropriate. Any and all work product shall be considered “Work for Hire” under applicable U.S. Copyright laws and be turned over to Centene upon request or upon completion or termination of services under a PO. Vendor will hold the same in confidence pursuant to the terms of the previous section and will not use same for any purpose other than the performance of the services hereunder.
Vendor warrants that the services and Vendor’s work product will not infringe on any copyright, patent, or trade secret. VENDOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CENTENE INDEMNIFIED PARTIES AGAINST ALL CLAIMS FOR ANY COPYRIGHT OR PATENT INFRINGEMENT OR MISAPPROPRIATION OF A TRADE SECRET OR OTHER PROPRIETARY RIGHT, ARISING OUT OF OR RESULTING FROM VENDOR’S PERFORMANCE OF THE SERVICES, INCLUDING CENTENE’S USE OF ANY DESIGNS OR OTHER WORK PRODUCT DEVELOPED BY VENDOR, AND VENDOR SHALL REIMBURSE THE CENTENE INDEMNIFIED PARTIES FULLY FOR ANY ROYALTIES, DAMAGES OR OTHER PAYMENTS THAT A CENTENE INDEMNIFIED PARTY SHALL BE OBLIGATED TO PAY. In the event Centene’s use of any work product developed by Vendor is interrupted as a result of such a claim, then Vendor shall either (i) procure for Centene, at no cost to Centene, the right to continue using the infringing work product as though it were non-infringing, or (ii) replace or modify the infringing work product with a work product that is non-infringing and that does not violate the property rights of others. The Centene Indemnified Parties shall have the right to be present and represented by counsel, at its own expense, at all times during litigation or other discussions relating to claims under this provision. Neither Vendor nor a Centene Indemnified Party shall settle or compromise any such litigation without the consent of the other if such settlement or compromise obligates the other to make any payment or part with any property or assume any obligation or grant any license or other rights or be subject to any injunction by reason of such settlement or compromise.
10. Right to Cancel. This PO may be terminated by Centene at any time if Vendor (a) is in default hereunder; (b) fails to use properly skilled personnel; (c) fails to make prompt payment to any subcontractors it may have; (d) fails to make prompt payment for any materials, labor or any other expenses it incurs in the development of the goods or the performance of any services; (e) fails to deliver the goods or services hereunder per the delivery schedule; (f) delivers goods or services which are defective or do not conform to this PO; or (g) is deemed insolvent or in the event of the institution of any proceeding by or against Vendor in bankruptcy or insolvency. Centene may require a financial statement from Vendor at any time during the term of this PO for the purpose of determining Vendor’s financial responsibility and may request assurances of Vendor’s future performance against the terms of this PO. Any termination pursuant to this Section 9 shall be deemed to be a termination for default.
11. Termination for Convenience: Centene may terminate any PO with Vendor at any time and from time to time for its sole convenience by giving Vendor at least thirty (30) days prior written notice to such effect. In the event of any such termination, Vendor shall immediately stop all services within the required (30) days and, unless notified by Centene to the contrary, shall immediately cancel orders and commitments to its Subcontractors and cause all Subcontractors to cease all work related to this PO. In the event of such termination for convenience, Centene shall pay Vendor as a termination charge that portion of the total consideration specified in the PO equal to the portion of the services completed to Centene’s satisfaction prior to such termination, together with Vendor’s actual, reasonable, verifiable direct costs, if any, incurred in closing-out such services, less any payments made prior to such termination. Vendor shall not be paid for any services performed after receipt of any notice of termination nor for any costs incurred by Vendor’s Subcontractors that Vendor could reasonably have avoided. Vendor shall have no further claim against Centene on account of such termination. Centene reserves the right to cancel all or any part of this PO without a cancellation cost if shipment is not made within the specified time.
12. Indemnity. Vendor hereby agrees to indemnify and hold harmless Centene, its affiliated companies and their agents and employees from all claims and suits for money or damages to property including incidental and consequential damages or injuries, including death, to persons, and from all judgments recovered therefor, and from all expenses in defending said claims or suits, including court costs, attorneys’ fees and other expenses, caused by, or arising out of: (a) the act or omission of Vendor, its agents, and employees while on or about the premises of Centene for the purposes of delivering, installing or providing the goods and/or services required by this PO; (b) the negligence or wrongful acts or omissions of Vendor, its agents, and employees; (c) any misrepresentation, breach of warranty, or non-fulfillment of any obligation or agreement made by Vendor in connection with this PO; (d) any defect or nonconformance in the goods or services purchased hereunder; and (e) any and all claims, demands and liens for the value of goods furnished or labor performed under this PO.
13. Survival. The warranties, remedies and indemnities provided in this PO shall survive delivery, shall not be deemed waived either by reason of acceptance or payment and shall be in addition to those implied by or available at law.
14. No Assignment. Vendor may not assign its rights or delegate its duties under this PO without the prior written consent of Centene, and any attempted assignment or delegation without such consent shall be void.
15. Pricing. Prices shall be firm and not subject to adjustment or variation unless specifically approved in writing by Centene.
16. Invoice Procedures. After delivery of goods and/or completion of services, Vendor shall submit an invoice to Centene’s Accounts Payable department and Centene shall, after acceptance of such goods and/or services, pay such invoice in accordance with the terms noted on the front of this PO or if no such terms are noted, within 30 days after acceptance.
(a) Vendor shall maintain such public liability insurance, including product liability, contractual liability, completed operations, contractor’s liability and protective liability, automotive liability, workers’ compensation and employer’s liability as will adequately protect Centene against all damages, liabilities, claims, losses, and expenses hereunder, with an insurance carrier rated A- or better by A.M. Best.
(b) In the event Vendor will come on or about the premises of Centene to provide the goods and/or services under this PO, Vendor hereby agrees to furnish and maintain at its own cost and expense, the following minimum insurance coverage underwritten by good and solvent insurance companies:
(c) Vendor shall not violate, or permit to be violated, any conditions of any said policies, and shall at all times satisfy the requirements of the insurance companies writing said policies. Vendor shall furnish Centene with insurance certificates indicating the coverage above referred to. The insurance certificates shall name Centene as an additional insured via CG2026 Edition 4/13 and Form CG37 Edition 4/13 or their equivalent in connection with the coverage required by Section 17 (b) above. Certificates of Insurance and copies of additional insured endorsements shall be provided prior to the commencement of work. Certificate Holder must read as follows:
Attn: Manager, Insurance
7700 Forsyth Boulevard
St. Louis, MO 63105
(d) Vendor shall not contract for the performance of any part of the work herein required without imposing similar obligations on any subcontractor so employed.
18. Taxes: Vendor shall be fully responsible for all state and federal income taxes, pension benefits, social security taxes, employment, disability and other customary insurance and for any other taxes or payments which may be due and owing by Vendor or which are the result of fees or amounts paid by Centene to Vendor under this PO. VENDOR AGREES THAT IT IS LIABLE FOR AND SHALL, WITHOUT LIMIT AND AT ITS OWN COST, INDEMNIFY, DEFEND AND HOLD HARMLESS THE CENTENE INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS RESULTING FROM VENDOR’S FAILURE TO PAY ANY TAXES THAT ARE VENDOR’S RESPONSIBILITY UNDER THIS SECTION.
19. Right to Audit: Vendor shall, and ensure that its Subcontractors shall, maintain a true and correct set of records pertaining to all activities relating to the services and all transactions related thereto in a manner which is commercially reasonable and in line with industry best practices as well as in automated or electronic form. Vendor further agrees, and shall ensure that its Subcontractors agree, to retain all such records for a period of not less than three (3) years after the completion of a particular PO. Vendor agrees that all records pertaining to charges made to Centene under this PO will be subject to audit by Centene or representatives of Centene and that such audits will employ statistical sampling methods consistent with standard industry practice. Centene, or its representatives, shall have access to Vendor’s facilities and shall be provided adequate and appropriate workspace in order to conduct audits. Centene shall have the right to interview current and former Vendor employees as part of any such audit. Should errors, overcharges or undercharges occur, reimbursement shall be made to the appropriate Party.
20. Miscellaneous: Vendor further agrees:
(a) That Vendor is, and shall continue to be, an independent contractor, and any provisions of this PO which may appear to give Centene the right to direct Vendor as to details of performing any services, or to exercise a measure of control over Vendor’s performance of the services, shall be interpreted to mean that Vendor will follow the instructions of Centene with respect to the results of the services achieved only and not in the means whereby the services are to be accomplished, and Vendor shall have complete and authoritative control as to the details of performing the services; and
(b) This PO is a contractual relationship. This PO is not intended to create a partnership, joint venture or any other type of legal entity; and
(c) To refrain from making or causing to be made, any public announcement, advertisement, or news release of any kind concerning this PO, without permission of Centene; and
(d) That there are no conditions other than those stated hereon; and
(e) That Vendor has fully read, understands and accepts these terms and conditions in their entirety and without modification; and
(f) That all provisions of this PO pertaining to warranties, taxes, audits, intellectual property, confidentiality, indemnity, limitations of liability, choice of law, and jurisdiction are continuing obligations which shall survive completion and acceptance of any materials and/or services or the termination of this PO, howsoever brought about for an unlimited period of time, unless otherwise expressly provided for in this PO; and
(g) That if any provision of this PO is held to be illegal, invalid, or unenforceable and such invalidity or unenforceability does not have a material and substantial negative impact on the rights, duties and obligations of either Party hereto (i) such provision will be fully severable, (ii) this PO will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this PO, and (iii) the remaining provisions of this PO will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this PO; furthermore, (1) in lieu of such illegal, invalid, or unenforceable provision, there will be added automatically as a part of this PO a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and as may be legal, valid, and enforceable and (2) such illegality, invalidity or unenforceability shall not affect the validity or enforceability in that jurisdiction of any other provision of this PO nor the validity or enforceability in other jurisdictions of that or any other provision of this PO.