SprayGuard™ Program Terms and Conditions
SprayGuard™ Surface Protection Services
These terms and conditions (“Terms and Conditions
”), govern the performance of the SprayGuard Surface Protection Services (“Service(s)
”) by Henry Schein, Inc., or one of its affiliates including specifically HF Acquisition Co., LLC dba HealthFirst (“Service Provider
”), and a customer (hereinafter, ”you
” or “Customer
”) who submits an order form for the services via the online enrollment portal (“Order Form
”). Service Provider and Customer may each be referred to as a “party” and collectively as the “parties”. These Terms and Conditions will be incorporated into any Order Form submitted by Customer, who shall acknowledge reviewing and agreeing to them prior to submitting the order for Services. The Order Form, together with these Terms and Conditions and any other documents incorporated by reference herein, shall constitute the entire agreement between the parties regarding the Services.
- Scope of Services, Service Intervals, Use of Subcontractors
- Scope of Services. The Services shall consist of (i) the in-office service visit for the cleaning and application of disinfecting and protective products and (ii) access to HealthFirst’s OnTraq software, which can be used to track the level of cleanliness on surfaces in the Customer’s office (the “Software”). The terms and conditions of Customer’s use of the Software are available at https://ontraq.healthfirst.com/index/agreement and must be accepted by Customer prior to using the Software. The Software terms and conditions are incorporated by reference to this Agreement as applicable for Customers who utilize the Software.
- One-Time Service Visit. Customers may elect to order a one-time service visit by Service Provider. Customers who order a one-time service visit will still receive access to the Software should they want to view their office’s pre- and post- Services surface cleanliness.
- Annual Service Plan. Customers may order recurring Services from Service Provider on an annual basis, beginning on the Effective Date (as defined in Section 3) and ending on the one-year anniversary of the Effective Date unless renewed as described below (the “Annual Service Plan”). With an Annual Service Plan, the Service Provider will provide Customer with the Services at least once per calendar quarter during the Service Term. Service Provider will use reasonable efforts to provide Customer with the Services on regular intervals of approximately ninety (90) days. The Annual Service Plan will automatically renew at the then current price for Annual Service Plan at the one-year anniversary of the Effective Date (as defined in Section 3) unless Customer notifies Service Provider no later than thirty (30) days from the end of any Service Term.
- Use of Subcontractors. Customer consents to Service Provider’s use of subcontractors and consultants to provide the Services, and any subcontractors or consultants Service Provider uses will be under Service Provider’s direction and will comply with all applicable provisions of this Agreement.
- Fees and Payment Terms
- Fees. Customer will pay Service Provider the fees as set forth in the applicable Order Form (“Fees”). During the first visit to Customer’s facility, Service Provider reserves the right to adjust the Fees, either by increasing or decreasing them, based upon their measurement of the office square footage or number of operatories as compared to what Customer provided on the Order Form. Additionally, Service Provider may increase the Fees at the beginning of any applicable renewal of the Service Term (as defined below), unless the Fees for such renewal term are already stated in the applicable Order Form. Service Provider will give Customer written notice of any such increase at least thirty (30) days prior to the beginning of the renewal term for any Fee increase greater than three percent (3%). If Service Provider does not provide Customer with such written notice, then the Fees for the renewal term will be the same as the Fees for the immediately preceding Service Term. Service Provider reserves the right to increase the Fees, upon thirty (30) days’ notice to Customer, at any time during the Service Term to reflect an increase in the cost of the products used in the Services to Service Provider.
- Payment Terms. Except as may be otherwise specified in the applicable Order Form: (a) one-time service visits will be invoiced by Service Provider approximately 2-4 weeks from the date the Order Form is submitted (b) Services Provider will invoice Customer on a quarterly basis in advance for Annual Service Plans. All invoices are payable in U.S. Dollars with payment due within thirty (30) days of invoice date. Unpaid invoices will be subject to a finance charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower. If Customer does not timely pay any invoice, then in addition to any rights that Customer has under this Agreement, Service Provider may condition future Services and Order Forms on terms different than those specified in this Agreement (i.e. prepayment). Except as otherwise set forth in this Agreement, all Fees, once paid, are non-cancelable, non-refundable, and not subject to set-off.
- Taxes. All amounts payable by Customer are exclusive of any sales, use and other taxes however designated (collectively “Taxes”). Customer is solely responsible for payment of Taxes, except for those taxes based on Service Provider’s income. Customer will not withhold any Taxes from any Fees or other amounts due. If Service Provider has the legal obligation to collect and pay Taxes for which Customer is responsible, such Taxes will be invoiced to and paid by Customer, unless prior to invoice, Customer provides Service Provider with a valid tax exemption certification authorized by the appropriate taxing authority.
- Term and Termination
- Term. This Agreement will commence on the date Customer submits the Order Form (the “Effective Date”) and will continue in effect for the duration of any Order Form that references its terms (the “Service Term”), unless earlier terminated as set forth in this Agreement. The Service Term applicable to the provision of the Services is set forth in the applicable Order Form.
- Termination. Either party may terminate this Agreement upon written notice to the other party in the event that the other party: (i) commits any material breach within thirty (30) days after receiving written notice specifying in reasonable detail the nature of the breach; (ii) breaches its obligations related to Confidential Information (in which case termination will be effective immediately on receipt of written notice); or (iii) becomes (A) insolvent or unable to pay its debts as and when they fall due, or proposes an arrangement to restructure such debts, (B) has a receiver, administrator or manager appointed over the whole or any part of its business or assets, (C) becomes the subject of any petition, resolution, or order for winding up, bankruptcy or dissolution, or (D) cease to carry on its business in the normal course (in the cases of the foregoing Section 3.b(iii)A-D, termination will be effective immediately on receipt of written notice). Upon termination of this Agreement, all Order Forms will automatically terminate.
- Obligations on Termination. Upon termination or expiration of this Agreement, all rights to receive the Services and all obligations to provide the Services will immediately cease. The termination or expiration of this Agreement will not relieve Customer from paying all Fees for Services actually performed by Service Provider and any expenses accruing prior to or after termination or expiration. If Customer terminates the Services at any time during the Service Term prior to all the Services being performed, then Customer agrees to pay Service Provider a cancellation fee (the “Cancellation Fee’). The Cancellation Fee will be calculated based on the number of Services actually rendered and the difference between the Fee per Service on an Annual Plan and the One-Time Service Fee as set forth in the Order Form.
- Survival. The parties’ obligations pursuant to Sections 2, 4, 5, 6, 7 and 8(a)-(b) of these Terms and Conditions shall survive the termination or completion of the Services.
- Force Majeure. Neither party will be deemed in breach of this Agreement for any cessation, interruption, or delay in performing its will be deemed in breach of this Agreement for any cessation, interruption, or delay in performing its obligations under this Agreement due to causes beyond its reasonable control, including, without limitation: (a) earthquake, flood, or other natural disaster, acts of God, labor controversy, civil disturbance, terrorism, war, or the inability to obtain sufficient supplies, transportation, or other essential commodities or services required in the conduct of its business; or (b) any change in or the adoption of any law, rule, or regulation, or the entering of any judgment, order or decree that prevents or inhibits its performance under this Agreement (each of (a) and (b) a “Force Majeure Event”); provided that financial inability in and of itself will not be a Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event will not relieve Customer from paying all Fees and expenses accruing prior to the Force Majeure Event.
- Treatment of Confidential Information
- Confidentiality. Each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with proprietary or confidential materials and information. “Confidential Information” means all materials and information provided by a Disclosing Party to a Receiving Party that: (a) is marked as “Confidential” or bears a similar legend at the time of disclosure, or is identified in writing as confidential within thirty (30) days of disclosure; or (b) Receiving Party should reasonably know is confidential at the time of its disclosure, including, Customer Data, any unique user identifiers and passwords provided to Customer to access and use the Services or Software, information relating to pre-release offerings, business plans, pricing, products, policies, procedures, inventions, trade secrets, patents, and know-how of the Disclosing Party. “Confidential Information” does not include information that Receiving Party can establish: (a) has entered the public domain without Receiving Party’s breach of any obligation owed to Disclosing Party; (b) has been rightfully received by Receiving Party from a third party without confidentiality restrictions; (c) is known to Receiving Party without any restriction as to use or disclosure prior to first receipt by Receiving Party from Disclosing Party; (d) has been independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; or (e) is Aggregate Data or Personal Information.
- Obligations Related to Confidential Information. Receiving Party will only disclose Confidential Information to those persons who have a need to know such information in the course of performing their duties under this Agreement. Receiving Party will take reasonable measures to maintain the confidentiality of Confidential Information in its possession or under its control, which will in no event be less than the measures it takes to maintain the confidentiality of its own information of similar importance. If Receiving Party learns of an incident of unauthorized access to, misuse, or disclosure of Confidential Information in its possession or under its control, then Receiving Party will: (a) promptly notify Disclosing Party of the facts and circumstances giving rise to such incident; and (b) take reasonable measures to contain and control further unauthorized access to, misuse, or disclosure of such Confidential Information. Restrictions on access to, use or disclosure of Confidential Information will not apply to access, use or disclosure authorized in writing by Disclosing Party. The parties acknowledge that the terms of any previously executed confidentiality agreements between them will remain in effect with respect to the information exchanged under those agreements.
- Disclosures Required by Law. If any applicable law, judicial, or administrative order requires Receiving Party to disclose Confidential Information or Personal Information, then, unless otherwise required by the disclosure order, Receiving Party will promptly notify Disclosing Party in writing prior to making any such disclosure. Following notification, Receiving Party will reasonably cooperate with Disclosing Party, at Disclosing Party’s request and at Disclosing Party’s reasonable expense, to seek a protective order or other remedy to prevent or limit the disclosure of Confidential Information or Personal Information.
- Representations and Warranties, Disclaimer of Warranties and Remedies
- Representations and Warranties.
- Service Provider warrants to Customer that it will perform the Services in a workmanlike manner and in all material respects in accordance with Customer’s requests made on the Order Form.
- The parties represent and warrant to each other that each party has the required rights, power and authority to enter into this Agreement and to grant all rights, licenses and authorizations given in this Agreement.
- These warranties are solely for the benefit of the parties to this Agreement and are not intended to be extended to any other person or entity.
- DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SERVICE PROVIDER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL ELIMINATE OR REDUCE BACTERIA, VIRUSES, GERMS, MOLD, MILDEW, FUNGI AND/OR ALGAE BELOW. FOR ANY BREACH OF WARRANTY, CUSTOMERS’ EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY WILL BE THE CORRECTION OF THE DEFICIENCY THAT CAUSED THE BREACH OF WARRANTY; PROVIDED THAT CUSTOMER PROMPTLY PROVIDES SERVICE PROVIDER WITH WRITTEN NOTIFICATION DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE DEFICIENCY AND A REASONABLE OPPORTUNITY TO CORRECT THE DEFICIENCY. IF SERVICE PROVIDER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY TERMINATE THE APPLICABLE ORDER FORM WITH RESPECT TO DEFICIENT SERVICES, AND SERVICE PROVIDER WILL REFUND TO CUSTOMER ANY UNUSED PRE-PAID FEES FOR THE DEFICIENT SERVICES, PRO-RATED FOR THE REMAINDER OF THE SERVICE TERM.
- Mutual Indemnification. Each party (the “Indemnifying Party“) agrees to indemnify and hold harmless the other party and said other party’s successors, assigns, shareholders, partners, directors, officers, agents, affiliates, subsidiaries, parent company, and employees (collectively, the “Indemnified Parties”) from and against any and all liabilities, damages, penalties, settlements, judgments, orders, losses, costs, charges, attorneys’ fees, and all other expenses and shall, further, defend the Indemnified Parties from any and all claims, actions, suits, prosecutions, and all other legal and/or equitable proceedings resulting from (i) any grossly negligent, willful, reckless, or wrongful act or omission of the Indemnifying Party, its employees, representatives, contractors or agents; (ii) any breach of, or inaccuracy in, any representation and/or warranty made by the Indemnifying Party herein including, without limitation, claims for personal injury, death or damage to property or other demands; (iii) any failure to perform by the Indemnifying Party, or any defect in said party’s performance of, its obligations and duties pursuant to this Agreement; or (iv) any alleged violation by the Indemnifying Party of any law, statute, regulation or ordinance.
- Exclusions from Indemnification. Neither party will have any liability or obligation to indemnify the other under subsection 6.a above with respect to any claim based on the other party’s gross negligence or intentional misconduct.
- Indemnification Procedure. As a condition to the obligations set forth in Section 6.a above, the responsible party (“Indemnitor”) must receive timely written notice of the Claim; provided that failure to provide such notification shall not relieve the Indemnitor of its indemnity obligations except to the extent Indemnitor is prejudiced thereby. Indemnitor will have sole control over the defense and settlement of the Claim with counsel of its own choosing, except to the extent that any settlement involves material commitments on the part of the indemnified party (“Indemnitee”), in which case such settlement will require the prior written consent of Indemnitee (which consent will not be unreasonably withheld, conditioned, or delayed). Indemnitee will provide reasonable and non-confidential information and cooperation as reasonably required by Indemnitor. Indemnitor will not be responsible for any settlement it does not approve in writing. Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing; provided, however, that the defense or settlement of any Claim will at all times be subject to Indemnitor’s sole control.
- Exclusive Remedy. THIS SECTION 6 DEFINES THE FULL SCOPE OF THE BASES AND REMEDIES FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS. Notwithstanding anything to the contrary in this Agreement, this Section 6 does not apply to any claim (whether direct or indirect) for which a sole and exclusive remedy is provided under another section of this Agreement.
- Limitation of Liability and Exclusion of Certain Claims
- EXCLUSION OF CERTAIN CLAIMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
- LIMITATION OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OR OTHER EMPLOYMENT OF THE SERVICES, NO MATTER THE TYPE OF CLAIM FROM WHICH LIABILITY ARISES, SHALL BE AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CUSTOMER TO SERVICER PROVIDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM. (IF NO FEES ARE PAID, SERVICE PROVIDER’S AGGREGATE LIABILITY WILL BE LIMITED TO U.S. $5,000.00). THIS LIMITATION OF LIABILITY WILL NOT APPLY TO (I) CUSTOMER’S OBLIGATIONS TO PAY FEES AND EXPENSES WHEN DUE AND PAYABLE, (II) ANY INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF SERVICE PROVIDER’S INTELLECTUAL PROPERTY, (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NOR TO (IV) EITHER PARTY’S ACTS OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO CUSTOMER AND ITS PERMITTED AFFILIATES AND SHALL NOT BE CUMULATIVE. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY IN THIS AGREEMENT IS FOUND TO FAIL OF ITS ESSENTIAL PURPOSE. ALL CAUSES OF ACTION OR CLAIMS BROUGHT BY EITHER PARTY PERTAINING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM; EXCEPT THAT AS TO ANY PARTY’S INDEMNIFICATION OBLIGATIONS, ALL RELATED CAUSES OF ACTION OR CLAIMS MUST BE BROUGHT BY THE LATER OF (A) ONE (1) YEAR FROM THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM OR (B) ONE (1) YEAR FROM THE DATE THAT THE PARTY SEEKING INDEMNIFICATION SHOULD REASONABLY HAVE KNOWN OF ANY MATTER GIVING RISE TO SUCH CAUSE OF ACTION OR CLAIM. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.
- Governing Law. This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. The parties irrevocably submit to the jurisdiction and venue of the federal courts sitting in the Eastern and Southern Districts of New York or any New York state courts in the counties of Nassau and Suffolk, for the purpose of any suit, action or proceeding arising out of this Agreement. The parties hereby irrevocably waive any and all defenses to the jurisdiction and venue of the aforesaid courts, including without limitation a motion to dismiss venue and the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding.
- Notices. Except as otherwise provided, all notices given under this Agreement shall be in writing and shall be deemed to have been duly given upon receipt if delivered by hand or facsimile transmission with receipt confirmed, three days after mailing by certified or registered mail, and one day after sending by overnight courier, to the parties’ respective address indicated on Order Form or such other address as a party specifies in writing to the other party. All notices given to Service Provider under this Agreement shall be sent with a copy to Henry Schein, Inc., 135 Duryea Road, Melville, New York 11747, Attn: General Counsel, Fax (631) 843-5660.
- No Joint Venture. Nothing in this Agreement shall be construed to create, constitute, give effect to or otherwise imply a joint venture, partnership, agency or employment relationship of any kind between the parties.
- No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
- No Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
- Severability. If any term of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining unaffected terms, shall remain in full force and effect as if such invalid or unenforceable term had never been included.
- Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent.
- Interpretation. This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either party.
- Entire Agreement; Amendments. This Agreement, including the Order Form and the Software terms and conditions (if applicable), constitutes the entire agreement between Customer and Service Provider. All prior or contemporaneous agreements, proposals, understandings and communications between or involving Customer and Service Provider, whether oral or written, are superseded by this Agreement. The terms contained in this Agreement shall supersede any conflicting terms contained in any purchase order, invoice or other document used or submitted by either party in connection with the purchase of Services covered by this Agreement. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties.
Sprayguard T&Cs v01.18.2020