Medical Products & Services (MMCAP – Gro...

WebProcure: Request And Workflow https://webprocure.perfect.comlWebDriver?ACT=RptPOSuppAct... IDAHO State of Idaho Participating Addendum Purchase Order Summary Purchase Order Number: PADD1 9200437 Account Number: AC-i Purchase Order Date: April 05, 2019 Service Start Date: April 5, 2019 Service End Date: May 31, 2020 Payment Method: Invoice Payment Terms: NET3O Currency USD FOB Instruction: Destination Attachment(s): Contract Number: David Delgado Medical Solutions Inc 10401 93rd Ave. N #100 Maple Grove, MN 55369 Phone: 763-493-4114-11 Fax: 763-493-4310 Supplier Email: ddelgado@medicalsolutionsinc.com Bill To Address DOP - Prog Mgr Dept of Administration Division of Purchasing 304 N 8th Street Rm 403 PC Box 83720 Boise, Idaho 83720 Phone: Fax: Email: Mail Stop: 208-332-1600 208-327-7320 purchasing @ adm.idaho.gov DOP Program Manager

Ship To Address DOP - Prog Mgr Dept of Administration Division of Purchasing 304 N 8th Street Rm 403 P0 Box 83720 Boise, Idaho 83720 Phone: Fax: Email: Mail Stop: 208-332-i 600 208-327-7320 purchasing@adm.idaho.gov DOP Program Manager NOTICE OF STATEWIDE CONTRACT (PADD AWARD) Instructions This PADD is for Medical Products and Services pursuant to Minnesota Multistate Contracting Alliance for Pharmacy (MMCAP), MMCAP Contract No. MMS1 8013. This contract is for the benefit of State of Idaho agencies, institutions, and departments; as well as eligible political subdivisions or other “Public Agencies” as defined by Idaho Code, Section 67-2327. The Division of Purchasing or the requisitioning agency will issue individual releases (delivery or purchase orders) against this Contract on an as needed basis. This contract is to be drawn upon as requested by Participating Agencies for the period noted above and may be renewed for three (3) additional years, at increments determined by MMCAP, on written acceptance by both parties, for a total term not to exceed five (5) years. Agencies will need to become members of MMCAP in order to access MMCAP Contract MMS1 5001. Contact the Division of Purchasing for information regarding becoming a member. PADD Title: Medical Products and Services PADD Usage Type: Mandatory Use Public Agency Clause: Yes PADD Administrator: Chelsea Robillard Phone Number: 208-332-1607 1 of 2 4/5/2019, 10:41 AM WebProcure: Request And Workflow https:llwebprocure.perfect.comlWebDriver?ACT=RptPOSuppAct... Fax Number: 208-327-7320 Email: Chelsea.Robillard @ adm.idaho.gov Contractors Primary Contacts: Lynn Meyers, Key Accounts/Contract Sales Phone Number: 888-557-8020 Mobile Number: 612-747-1622 Email: lmeyers@medicalsolutionsinc.com CONTRACTOR: Ship to the FOB DESTINATION point and BILL DIRECTLY to the ORDERING AGENCY. DO NOT MAIL INVOICES TO THE DIVISION OF PURCHASING. Notating the Contract Award Number on any invoices/statement will facillitate teh efficient processing of payment. QUANTITIES: The State of Idaho, Division of Purchasing, can only give an approximations of quantities and will not be held responsible for figures given in this document. Items Supplier Part Number Unit Unit Price Total 1.00 0 EA 250,000.00 $250,000.00 Item Description #1 Medical Products and Services Delivery Date: April 06, 2019 Shipping Method: Delivery Shipping Instructions: Ship FOB: Destination Attachment(s) Special Instructions: Sub-Total (USD) $250,000.00 Estimated Tax (USD) $0.00 TOTAL: (USD) $250,000.00 Note: If there is a next to an item’s unit price, that indicates that the price has been discounted. Signature Signed By: e-€ Quantity Back Order 2of2 4/5/2019, 10:4 1 AM Vendor Contract MMS1BOI3 State of Idaho March 11,2019 Member-Requested Participation Addendum (MPA) This Addendum (“MPA”) is entered into by State of Idaho (“Member) and Medical Solutions, Inc., located at 10401 93’d Avenue North, Suite 100. Maple Grove, MN 55369 (“vendor or “Contracto() and incorporates the Minnesota Multistate Contracting Alliance for Pharmacy, an agency of the State of Minnesota (‘MMCAP”) vendor contract MMSI8OI3 (“Vendor Contract”), WHEREAS, MMCAP and Vendor executed the Vendor Contract on June 6, 2018. WHEREAS, Member and Vendor wish to amend the terms and conditions of the Vendor Contract to address the matters of Member. WHEREAS, MMCAP has sole approval authority to any changes to the Vendor Contract, thus Is a signatory to this MPA. WHEREAS, Member, MMCAP, end Vendor do not intend to alter, amend, Interfere, modify, or adjust the contractual relationship of MMCAP and Vendor nor the relationship between any other member of MMCAP and the Vendor. THEREFORE, the parties agree as follows: I. DEFINITIONS A. Membership: Means the joint power cooperative comprised of the MMCAP authorized states, departments, facilities, and other municipalities. B. Facilities: Means the authorized departments, facilities, and other municipalities approved by Member and MMCAP to access and use this MPA, as Identified on Exhibit B. ii. PEFECTIVE DATE AND TERM A. Effective Date: This MPA is effective on March 15, 2019 or the date all signatures have been obtained, whichever is later. B. Termination: This MPA terminates upon: I .Thirty (30) calendar days’ written notice upon written notice to the other parties; or 2.The termination of the Vendor Contract between MMCAP and the Vendor; or 3.Written agreement executed by all parties. Iii. SCOPE A. Exhiblt A: Which Is attached and incorporated herein, Identities the Vendor Contract end all other previous agreements and amendments to be incorporated into the contractual relationahip between Member and Vendor. B. Exhibit B: Which is attached and incorporated herein, identifies the additional Facilities Member and MMCAP has approved to access the Vendor Contract and MPA. C. Exhibit C: Which is attached and incorporated herein Identifies the language to be incorporated into the contractual relationships between Member and Vendor, as referenced on Exhibit A. in the event of any conflict between the terms of the Vendor Contract and Exhibit C of this MPA, the terms of gbitC wiil supersede as between Member and Vendor, MMCAP MPA Page 1 ofT Vendor Contract MMSI6OI3 State of Idaho March 11.2019 MMCAP, the State of Minnesota, nor any other party of the Membership (except for Facilities) are bound by the terms of Exhibit C. IV. GENERAL PROVISIONS A. Assignment: Except as affirmed In this MPA, the Member nor Vendor will not assign. delegate, or transfer any rights or obligations under this MPA without the prior written consent of MMCAP. B. Counterparts and Electronic Signature: The MPA cannot be executed in counterparts and will not be enforceable until MMCAP has obtained all required signatures. If requested by MMCAP, Member and Vendor expressly agree to conduct transactions under the MPA by electronic means (including, without limitation1 with respect to execution, delivery, storage and transfer of this MPA by electronic means and to the enforceability of this electronic agreement). MMCAP will be deemed to have control of the authoritative copy for the electronic transferable record, in each case regardless of whether applicable law recognizes electronic transferabie records or control of electronic transferable records and regardless of whether this MPA is an electronic record or transferable record. Member end Vendor will cooperate with and take all actions required by MMCAP In order for this MPA to be a transferable record, to ensure that MMCAP has control of the authoritative copy of such transferable record. C. Amendments; Any amendment or modification to this MPA must be In writing and will not be effective until executed by Vendor, the Member, and MMCAP (REMAINDER OF PAGE LEFT BLANK; SIGNATURE PAGE FOLLOWS) MMCAP MPA Page2of 7 Vendor Contract MMCI 5013 State of Idaho March 11 2019 IN WITNESS WHEREOF, the undersigned parties have caused this MPA to be signed on their behalf intending to be bound thereby. BY AND BETWEEN: FOR THE MEMBER: VENDOR: STATE 0 I MEDICAL SOLUTIONS, INC. By: A1Utl4—&_ Signar By: _________ Title; ___________________ Title: _______________ Date: ______________ Date; _____________________ IN AN APPROVAL CAPACITY ONLY: State of Minnesota for MMCAP In accordance with Minn. Stat. § 16C.03, subd. 3 Signature: ___________________________________ Printed. ccc -tLJl,Cr,’LbouJ Date: 3 Iy /‘i Minnesota Commissioner of Administration In accordance with Mini Stat. § 16C.05, subd. 2 signature4L6 jh edJØlt L4: [SIGNATURE PAGE] MMCAP MPA Page 3017 Vendor Contract MMS1 8013 State of Idaho March 11.2019 EXHIBITA Vendor Contract and other Applicable Legal Documents The following is a list of the legal documents to be referenced and to be incorporated with the terms and conditions of Exhibit C. 1. Vendor Contract MMS16013 MMCAP MPA Page4of 7 Vendor Contract MMSI 8013 State of Idaho March 1112019 EXHIBITS Approved Facilities 1. Scope: All state governmental entities, approved by MMCAP, within the State of Idaho and public agencies (as defined by Idaho Code, Section 67-2327) are authorized to purchase products and services under the terms and conditions of the Vendor Contract. These public agencies include any city or political subdivision or the State of Idaho, including, but not limited to counties; school districts; highway districts; port authorities; instrumentalities of counties, cities, or any political subdivision created under the laws of the State of Idaho; and public schools and institutions of higher education. 2. Participation: Use of specific MMCAP contracts by Facilities to use state contracts are subject to the prior approval of Idaho’s Chief Procurement Official and MMCAP. 3. Individual Customer: Each ordering Facility (“Purchasing Entity”) that places an order under this MPA will be treated as If it Is an individual customer. Except to the extent modified by this MPA, each Purchasing Entity will be responsible to follow the terms and conditions of the Vendor Contract and this MPA. Each Purchasing Entity will be responsible for its own charges, fees, end liabilities; and will have the same rights to any indemnity or to recover any costs allowed In the Vendor Contract for its individual purchases. 4. Price Agreement Numbers, All purchase orders issued by Purchasing Entities within the jurisdiction of this MPA shall include the following price agreement number: MMCAP Vendor Contract #MMS1 8013 and MPA #PADDI 9200400 MMCAP MPA PageS of? Vendor Contract MMS1SO13 State cf Idaho March 11.2019 EXHIBIT C Language Modification of the Vendor Contract The Following terms and conditions are entered Into between Vendor and the Member and Incorporate the documents Identified on Exhibit A. Neither MMCAP, the State of Minnesota1 nor the Membership, exceptfor the Member (and Facilities on shlbit B). are bound by the terms within this Exhibit. Modiflcatickn of Terms:. This has been Intentionally been left blank. Additional Terms; 1. idaho Fee end Quarterly Usage Report. A one and one-quarter percent (1.25%) Idaho Fee will apply to all purchases made under the resulting MPA by any state or public agency in Idaho, the State of Idaho understands and agrees that Vendor will raise the Vendor Contract prices by this amount, Additionally, Vendor and Member agree and understand that the Idaho Fee will In addition to not part of the MMCAP Administrative Fee. idaho Fee payments and reports to the State of Idaho are due no later than thirty (30) calendar days after the end of each calendar quarter. State of Idaho Reporting Time Line: 141 Quarter: July 1 — September 30 2M Quarter: October 1 — December 31 3.4 Quarter: January 1 — March 31 4th Quarter: April 1 — June 30 Report oContractYurchases: Provided there are sales to report, quarterly reports must accompany each Idaho Fee payment and be furnished electronically In Microsoft Excel format. For each account, Vender needs to provide a listing of all items purchased during the prior quarter indicating the Item # and description, the quantity delivered, the delivery destination, the date of delivery, and the unit prices. The total dollar amount accounts will have state agencies grouped separately from political subdivisions (e.g.. cities, counties, school districts, water districts, etc.). The report must be emailed to: purchasingadm.ldahoq.ov. Idaho Fee Payment checks must be made out and mailed to: Division of Purchasing, State of Idaho P.O. Box 83720 Boise, ID 83720-0075 2. Restrictjon. Purchases under this Vendor are restricted to purchases of medical equipment and supplies offered by the Vendor and are listed on the Vendor Contract. 3. Terms and Conditions In the Vendor Agreement that Do Not Apciy to idaho. MMCAP MPA Page 6 of? Vendor Contract MMS18O13 State of Idaho March 11,2019 8. Subject the state of Idaho, its agencies, or political subdivisions of the state of Idaho to the jurisdiction of the courts of other states; C. Limit the time in which the state of Idaho, its agencies, or political subdivisions of the State of Idaho may bring a legal claim to a period shorter than that provided in Idaho law; 0. Impose a payment obligation, including a rate of interest for late payments, less favorable than the obligations set forth In Section 67-2302, Idaho Code; or, E. Require the state of Idaho, its agencies, or political subdivisions of the state of Idaho to accept arbitration or to waive right to a jury trial. F. Require indemnification not specifically authorized by the idaho legislature or subject to appropriation (pursuant to Section 67-9213, Idaho Code, and Section 59-1016, idaho Code). G. Hold employees or officers of the State of Idaho and of political subdivisions of the State of Idaho personally liable. 4. Primary Conticts: The primary contact individuals for this MPA are as follows (or their named successors): Vendor • Name: David Deigadoor Lynn Meyers Address: Medical Solutions, Inc. Telephone: 888-557-8020 Fax: 877-557-9123 Email: gadomedicalsolutionsinc corn, irn.eyersmedicalsolutionsinp corn Address: State of Idaho, Division of Purchasing 304 N. 8th Street, Room 403 Boise, ID 83709 Telephone: 208-332-1607 Fax: - 208-327-7320 Email: Chelsea. Robiliardadm.idaj.gov Partiôinatino jjjjy ________________ Name: Chelsea Robillard 5. Orders: Any Order placed by a Purchasing Entity for a product and/or service available from the Vendor Contract shall be deemed to be a sale under (and governed by the prices and other terms and conditions) the Vendor unless the Purchasing Entity and the Vendor agree in writing that another contract or agreement applies to such Order. MMCAP MPA Pagelof7 Medical Solutions. inc. MMCAP Contract No. MMS 18013 TABLE OF CONTENTS Key Definitions Page 3 Article 1: Recitals Page 6 Article 2: Incorporation Page 6 2.1. Attachments, Exhibits and Order of Precedent Page 6 2.2. Member Participation Agreements (MPAs) Page 6 Article 3: Representations, Warranties and Certifications Page 7 I. GPO Representation Page 7 2. Federal Health Care Program Exclusion Page 7 3. Debarment by State, its Departments, Commissions, Agencies or Political Subdivisions Page 8 4. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion Page 8 5. Warranties Page 8 Article 4: Contract and Conditions Page 9 1. Contract Effective Date Page 9 2. Contract Expiration Date Page 9 3. Contract Termination Page 9 4. Vendor’s Duties Page 9 5. Non-Exclusive Agreement Page 9 6. Eligible Purchasers Page 10 7. Separate Agreements Page 10 8. Products and Services Page 10 9. Products and Services Pricing Page 11 10. Discounts Page Ii 11. Risk of Loss, Damage, and Shipping Terms Page 12 12. Compliance Page 11 13. Failure to Supply MMCAP Core Products Page 11 14. Purchase Orders and Payment Page 11 15. Vendor Fees Page 13 16. Authorized Representatives Page 14 17. Notices Page 14 18. Indemnification Page 15 19. Liability Limitations Page 15 20. Audits Page 15 21. Government Data Practices Page 16 22. Intellectual Property and Data Page 16 23. Worker’s Compensation and Other Insurance Page 17 24. Publicity and Endorsement Page 19 25. Direct Marketing, Advertising, and Oilers with Participating Facilities Page 19 26. Governing Law, Jurisdiction and Venue Page 19 27. Antitrust Page 20 28. Data Disclosure Page 20 29. Payment to Sub-Contractors (If Applicable) Page 20 30. Minnesota Statute § 181.59, Discrimination on Account of Race, Creed or Color Prohibited in Contract Page 20 31. Aftirmative Action Requirements for Contracts in Excess of$ 100,000 and if the Vendor has More than 40 Full-Time Employees in Minnesota or its Principal Place of Business Page 20 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 32. Certification of Nondiscrimination (In Accordance with Mimi. Stat. § 16C..053) Page 21 33. Contingency Fees Prohibited Page 22 34. Force Majeure Page 22 35. Severability Page 22 36. Escalation Procedures Page 22 37. Required Licenses, Permits and Registration Page 25 38. DEA License/HIN Page 25 39. Assignment, Amendments, Waiver, and Entire Contract Page 25 40. Survival of Terms Page 25 41. E-Verify Certification (In Accordance with Minn. Stat. § 1 6C.075) Page 26 Attachment A: Products and Pricing Page 27 Attachment B: Statement of Work an(I Vendor Performance Requirements Page 28 1. Operational Requirements Page 28 1. Vendor Service Area Page 28 2. Required Vendor Personnel Page 28 3. Customer Service to MMCAP Office Page 28 II. Contract Transition, Implementation and Management Page 32 1. N’fMCAP Contract Transition and Implementation Page 32 2. MMCAP Contract Management Page 34 ID. Key Contract Performance Metrics Page 45 1. Vendor Performance Requirements Page 45 2. Products and Pricing Accessibility Page 45 3. Vendor’s Response to Price Inquiries Page 46 4. Reporting Requirements Page 46 Attachment C: MMCAP Member Participation Agreements Page 52 Attachment D: Service Area Page 53 Attachment E: Vendor’s Contract Iniplenientation and Transition Plan Page 54 Attachment F: MMCAP Contracted Manufacturers List (If Applicable to this Contract) Page 55 Attachment C: Vendor’s Shipping Policy Page 56 Attachment H: Vendor’s Stock Outage and Backordcr Policy Page 57 Attachment I: Vendor’s Product Return Policy Page 58 Attachment J: Vendor’s Product Recall ProccdurcsIPolicies Page 59 Attachment K: Vendor’s Business Interruption Plan Page 60 Attachment I,: Vendor’s Escalation Procedure Page 61 Attachment M: Vendor’s Discount Structure Page 62 State of Minnesota — Affirmative Action Certification Information Page 63 State of Minnesota Resident Vendor Form Page 64 2 Medical Solutions, Inc. MMCAP Contract No. MIVIS 18013 KEY DEFINITiONS Throughout this Contract, the following key terms are defined below. ,4ufomt,tic Product Substitiitio,i - An order fulfillment process whereby Products that are not available at the time of order placement, may be automatically substituted with another equivalent (brand, generic or private label) Product substitute, contingent upon written consent by the ordering MMCAP Member. commencenzent Date - The date the Vendor is fttlly operational and ready to accept and ship orders from MMCAP Members as applicable to the service area designated in the Contract. Confirmation Priniback/Order C’o,tfirmation - An electronic confirmation report generated from the Vendor’s ordering system, which is sent back electronically to the ordering facility, indicating that the requested Products are available, on Manufacturer Backorder, out of stock, or deleted, etc. Core Products - Products determined by MMCAP that produced the highest volume in sales, and highest quantity shipped durIng a given one (1) calendar year period. These Products are identified in Attachment A, Products Pricing, under the Brand Label core Products and Frivote 1.abel Core Products tabs. Drop Shipmentft) - Products ordered by MMCAP Member through the Vendor, and shipped directly to the MMCAP Participating Facilities, from the Manufacturer. The Manufacturer notifies and bills the Vendor, who then invoices and receives payment from the MMCAP Member. ED! (Electronic Data Interchange - Inter-process (computer to computer application) communication of business information, in a standardized electronic form. Effecth’e Date - The date the Contract is fully executed. Emergency Product Delivery - An off-schedule delivery of the Products required by the MMCAP Participating Facilities, which may include orders of Product for patient, specific medical treatment, or to ensure the facility has suflicient Product to remain operational until the next-scheduled delivery day. Fiscal Year - The State of Minnesota’s Fiscal Year period of July I-June 30 of each calendar year. Manufacturer: Any supplier, of medical Products (including Medical Equipment), who has a contract to supply the Vendor with Products, purchased by MMCAP Members. Manuflicimirer Backorder ‘MRO - An order placed by the Member or Vendor to a Manufacturer or Supplier, which is not shipped to the Vendor or Member, due to industry wide shortages or other supply issues. Medical Equipment - Medical devices that have been cleared by the FDA, that are intended to be used for diagnostic, therapeutic, or monitoring care, provided to a patient by a health care organization. NOTE I.’ - Medical equipment includes devices such as monitoring equipment, life support equipment, imaging equipment, laboratory equipment, mechanical equipment. transport equipment, as well as any other equipment supporting the care of a patient, whether or not it is in the immediate vicinity of a patient. In addition, this equipment category includes other devices, such as computers, that support the care of a patient when in a health care organization, but are generally not specifically manufactured for use in a health care organization. As used in this standard, the term “equipment” refers to medical equipment. Reftrence: The Aisociarion far tiw Advo,wemeni of JethLcz( !nstrurne?skltiOn (.4.4 Mij. 3 Medical Solutions, Inc. MMCAP Contract No. MMSI 8013 NOTE 2 - Embedded software is covered by the medical device manufacturer; standalone software is covered by ANSI/AAMI/IEC 80001-1:2010, Application ofrisk inanagementJbr IT networks incoiporating medical devices——Pan I: Roles, responsibilities, and activities. MMC’AP coiitract/Agreemeizr - Also referred to as the “Contract”, is the agreement including any attachments, addenda and exhibits and is executed by the Vendor and MMCAP, for the distribution and sale of medical Products, Services, Medical Equipment, and select pharmacy Products as agreed to in writing by MMCAP. MMAP Contract Pricing - The applicable MMCAP Contract Product Cost agreed upon by the Vendor and MMCAP, and if applicable to this Contract, the Product Price agreed upon by the MMCAP Contracted Manufacturer and MMCAP. MMC4PMe,nbers - These are eligible purchasers that are deemed by the MMCAP Office, to have completed, and met the requirements of the membership application process. MMC’AP Participating Facilily(’ies) - Consist of facilities that are MMCAP Members (eligible purchasers), and facilities recognized by the MMCAP Members, as facilities eligible to receive the delivery of Products and Services. MA’ICAP Products - Refers to all Products, covered in Altachment A, Products and Pricing. These products cover the entire Product catalog of the awarded Vendor, including Services (referred to in Attachment A as Additional Value Offerings), and are identified in Attachment A, under the following tabs: the Brand Label Core Products tab, the Private Label Core Products tab, the Non-Core Products! tab, the Equipment Schedule tab, and the Additional Value OjThrings tab. MMCAP State contacts - Purchasing and pharmacy professionals designated by MMCAP Member States, who serve as liaisons between the MMCAP Office and the MMCAP Participating Facilities in each State. A list of MMCAP State Contacts is available at: http://w.mmd.admin.state.mn.usfMMCAP/backgroundew_Current_States.aspx. Net Purchase - All purchases of Products (excluding returns, credits, rebates, late charges and similar fees) made through Vendor by any MMCAP Member, including Products drop shipped from an affiliate of Vendor, in the normal course of business. Non-Core Products - Refers to Products not specifically covered in the Brand Label Core Products tab, the Private Label Core Products tab, the Equimnenl Schedule tab, and the Additional Value OJjèrings tab. Through the categories listed in the Non-Core Products tab, the awarded Vendor will offer the rest of the Products available in its catalog, which are not featured in the remaining tabs in Altachinent A, Products and Pricing. Vendor, in agreement with MMCAP, may amend the 7sion’one Product categories, as new additions or deletions take place, in the Vendor’s catalog. Non-Recurring Products - Products ordered less than once a month by MMCAP Members. Order - Means, any purchase order used to order Products or Services tinder this Contract. An Order amended, consistent with the reqiLirements of any MMCAP Participating Facility, and accepted by the Vendor, shall be governed by the terms and conditions of the original Order, except as amended. Order Originator - The MMCAP Member, who places the order with the Vendor. Prod:icl( - Products offered by the Vendor and awarded by MMCAP. 2 Refen.nce: The Associationfor the Ath’ancemeni ofMedical lnstrumentation -1A.IIL ie listed categories in the Non-Core Products tab, are intended to cover the I nidor ‘s most current, published catalog ofProducts, which are Plot listed in the remaining tabs. 4 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 Product Backorder — A Product order that is not fulfilled in the time frame set forth in this Contract, due to Product unavailability, resulting from the Vendor’s or the Manufacturer’s inability to supply the Product. Product Substitutes - Equivalent (brand, generic or private label) Products that the ordering MMCAP Member consented to in writing to accept as a substitute for the ordered MMCAP Contract Products. Replacement Products - In the event a Product covered under this Contract is removed by the Vendor, or recalled by a Manufacturer, the Vendor must replace the Product with an acceptable Product substitute. In the event the Vendor cannot obtain a suitable Product substitute, then the affected MMCAP Member may purchase the Product from a non- contract source. Services - Any related offering provided by the Vendor related to the Products covered by this Contract, and which can be provided by the Vendor for a fee or at no cost to MMCAP Members. Services may include but &e not limited to: customer service, Product ordering systems, clinical education, Product training, and Product marketing, among others. Services may, or may not, incur cost. Special Products - if applicable to this Contract, includes all MMCAP Contract Products that require special temperatures and environmental conditions, in accordance with Manufacturer requirements for delivery to the MMCAP Participating Facilities. All refrigerated Special Products will be shipped in returnable coolers with appropriate packaging, to maintain the required temperature range. Special Products requiring refrigeration will be clearly marked as such. Temperature monitors will be used if they are required by the Manufacturer. Vendor - MMCAP’s Contracted Distributors or Manufacturers of Products and Services, related to the Products for the MMCAP Membership, pursuant to the terms of this Contract. Vendor ‘ontract Performance Report - A written report prepared by the MMCAP Office, detailing the proficiency of the Vendor. Repeated low ratings in the report might be conducive to penalties, including termination, as well as the inability of the Vendor to respond to future solicitations published by MMCAP. LREMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 5 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MINNESOTA MULTISTATE CONTRACTING ALLIANCE FOR PHARMACY ‘I’his contract is between the State of Minnesota, acting through its Commissioner of Administration on behalf of the Minnesota Multistate Contracting Alliance for Pharmacy (“MMCAP”) and Medical Solutions, Inc., located at 10401 93 Avenue North, Suite 100, Maple Grove, MN 55369 (collectively, “Vendor” or “Contractor”). ARTICLE 1: RECITALS 1. Under Minn. Stat. § 16C.03, the Commissioner of Administration, on behalf of MMCAP, is empowered to engage such assistance as deemed necessary. 2. MMCAP is a group purchasing organization of government owned and/or operated health care facilities which contracts for healthcare Products and Services for its members’ use. Participation in MMCAP is limited to facilities within member states that are specifically permitted by the member state’s statutes to purchase goods from the member state’s contracts. Participation is generally available to facilities run by state agencies, counties, cities, townships, and school districts. 3. The Vendor wishes to contract with MMCAP to supply Medical Products and ServIces to the national MMCAP Participating Facilities. ARTICLE 2: INCORPORATION 1. the parties agree that the recitals are true and correct, and are hereby incorporated into this Contract. 2. Attachments, Exhibits, and Order of Precedent 2.1. The following attachments and Exhibits are attached and incorporated into this Contract. In the event of conflict, the following order of precedence applies. • Attachment A: Products and Pricing • Attachment B: Statement of Work • Attachment C: AIMCAP Member Participation Agreements • Attachment D: Service Area • Attachment E.’ Vendor ‘s Contract Implementation and Transition Plan • Attachment F.’ MA’fC.AP Contracted Manz/cIurer List • Attachment G: Vendor v Shipping Policy • .4itachment I!: Vendor’s Stock Outage and Backorder Policy • Attachment I: Vendor ‘s Product Return Policy • Attachment .J’ Vendor Product Recall Policies/Procedures • Attachment K.’ Vendor’s Business Interriqilion Plan • Attachment L: Vendor’ Escalation Procedure • Attachment Al: Vendor ‘s Discount Structure 2.2. Menaber Participation Agreements (MPAs) In order to access this Contract some members require jurisdiction-specific additional paperwork or contract language. Vendor must not sign any member documents without prior MMCAP review and approval. If needed, MMCAP will issue a Member-requested Participation Agreement (MPA) that will be amended into to this Contract. No other mechanism of inodifing or “attaching to” MMCAP contracts is authorized. The MPA, which will only apply to the requesting Member and must be signed in the following order: Member, Vendor, then MMCAP. Vendor is not required to agree to any additional terms; however, by not agreeing to the MPA Vendor may be precluded from doing business with that N ember. In the event a Member requires a fee be added to the Contract price (e.g., member levied procurement fee or system use fee), that fee must be added on top of the MMCAP 6 Medical Solutions, Inc. MMCAP Contract No. MMS1 8013 contracted pricing. Vendor may not absorb the fee. Vendor must not pay a member levied fee without first collecting the fcc through increased Product costs. The fees will be set aside and paid to the member as would be detailed in an MPA. Except as provided in a Member-Requested Participation Agreement (MPA) approved by MMCAP and executed by an MMCAP Member, Vendor and MMCAP, all orders placed by MMCAP Members with Vendor will be priced and offered by Vendor per the terms and conditions of this Contract, and no other terms provided by the MMCAP Member will apply to such orders. For each state requiring state specific language, a further Exhibit shall be attached to Attachment C: M/tfcAP Member Parlic4pation Agreements. 2.2.1. Should any of the terms set forth in any aUachment conflict with any terms set forth in the Contract document, the terms of the Contract document shall prevail, except when such conflict arises from the state- specific terms set forth in Attachment C: MMC’AP Member Participation Agreements, in which case the order of precedence set forth in Article 2, Section 2.2.2, shall apply. 2.2.2. Should any terms in the Contract document or other attachments conflict with the state-specific terms set forth in Attachment C, the terms set forth in Auachment C shall take precedence over the terms of the Contract document, but only as between the Vendor and the MMCAP Member and/or MMCAP Participating Facility bound by said state-specific terms. No other State shall be bound by the terms set forth in any other State’s state specific language set forth in the Exhibit provided by an MMCAP Member State and attached to Attachment C. 2.2.3. MMCAP and the State of Minnesota shall not be bound by non-Minnesota state-specilic terms set forth in any Exhibit included in Attachment C at any time, nor when bringing any enforcement action on behalf of MMCAP or the Slate of Minnesota. 2.2.4. During the term of this Contract other MMCAP Member States may request the MMCAP Office or the Vendor to amend this Contract to include terms and conditions specific to the requesting MMCAP Member State by attaching an Exhibit to Attachment C specific to that State. If a MMCAP Member State requests an amendment to this Contract to include their state specific requirements, the Vendor must work with the MMCAP Member State and the MMCAP Office to execute an amendment to this Contract in a reasonable period of time. No verbal or written instructions from the MMCAP Member States, MMCAP Participating Facilities, or any of their staff or state officials to change any provision of this Contract will be accepted by the Vendor without the prior written approval of the MMCAP Office. The Vendor will immediately report any such requests to the MMCAP Office. ARTICLE 3: REPRESENTATIONS, WARRANTIES AND CERTIFICATiONS 1. GPO Representation MMCAP represents and warrants that it is a “group purchasing organization” (GPO) as that term is defined under 42 C.F.R. Section 1001 .952(j) and that it shall comply with all applicable federal and state laws, rules and regulations, including, but not limited to, the provisions set forth in 42 U.S.C. Section 1320a-7b and the “safe harbor regulations” set forth in 42 C.F.R. Section 1001952. MMCAP is an entity authorized to act as a purchasing agent for a group of entities who arc furnishing services for which payment may be made in whole or in part under Medicare or a State health care program, and who are neither wholly-owned by MMCAP nor subsidiarIes of a parent corporation that wholly owns MMCAP (either directly or through another wholly-owned entity), and the MMCAP program and this Contract rio and will continue to fully comply with the safe harbor described therein. For the purpose of this clause the State of Minnesota shall not he deemed a parent corporation nor shall any state agency or public entity be deemed a subsidiary. 2. Federal health Care Program Exclusion Vendor represents that it, its directors, officers and employees (i) are not sanctioned individuals or companies and have not been listed by any federal agency as barred, excluded, or otherwise ineligible for participation in federally funded 7 Medical Solutions, Inc. MMCAP Contract No. MMSI8OI3 health care programs as defined in 42 U.S.C. Sec. 1320a-7b(f) (the “Federal healthcare programs”); (ii) have not been convicted of a criminal offense related to the provision of healthcarc items or services, an (iii) are not under investigation or otherwise aware of any circumstances which may result in such Vendor being excluded participation in Federal healthcare programs. Vendor agrees not to contract with any individuals or companies that have been sanctioned, debarred or excluded from participation in any federally funded health care programs to fulfill Vendor’s obligations under this Contract. In the event of a breach of this provision, this Contract shall immediately terminate, in spite of any notice and cure provisions to the contrary. Vendor agrees to indemnify, hold harmless and defend the State of Minnesota, MMCAP and its Participating Facilities from any claims, demands or damages which the State of Minnesota, MMCAP and its Participating Facilities may suffer as a result of Vendor’s breach of this Section 2. 3. Debarment by State, its Departments, Commissions, Agencies or Political Subdivisions Vendor certifies that neither it nor its principals is presently debarred or suspended by the State, or any of its departments, commissions, agencies, or political subdivisions. Vendor’s certification is a material representation upon which this Contract award is based. Vendor shall provide prompt written notice within five (5) business days to the State’s authorized representative if at any time it learns that this certification was erroneous when submitted or becomes erroneous by reason of changed circumstances. 4. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion Federal funding will be used or may potentially be used to pay for all or part of the work under the contract, therefore Vendor certifies that it is in compliance with federal requirements on debarment, suspension, ineligibility and voluntary exclusion specified in the solicitation document implementing Executive Order 12549. Vendor’s certification is a material representation upon which the Contract award is based. 5. Warranties Vendor has good title which is free and clear of all encumbrances. No applicable warranties, whether express or implied, are intended to be disclaimed or diminished by the terms of this Contract, with the exception othe following paragraphs. EXCEPT Wf[H RESPECT TO PRIVATE LABEL PROI)UCTS, VENDOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPJ.IED, AS TO THE MERCHANTABILITY OF ANY PRODUCTS OR ‘[HEIR FI’lNESS FOR ANY PARTICULAR USE OR PURPOSE. MMCAP AND EACH MMCAP PARTICIPATING FACILITY SHALL 1.00K TO THE MANUFACTURER OF PRODUCTS AND TIlE PROVIDER OF SERVICES (IF OTHER THAN VENDOR) FOR ANY WARRANTY THEREON. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF VENDOR HAS ANY AUTHORITY TO MAKE ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING PRODUCTS NOT SE!’ FORTH IN THIS CONTRAC’!’. VENDOR AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO PASS ON, ON A NON- EXCLUSIVE BASIS, FROM ANY MANUFACTURERS OR SUPPLIERS OF PRODUCTS, ‘[HE PRODUC’l WARRANTIES PROVIDED BY THE MANUFACTURER OR SUPPLIER TO THE EXTENT SUCH WARRANTIES ARE TRANSFERABLE. ?vIMCAP AND EACH MMCAP PARTICiPATiNG FACILITY ACKNOWLEDGE ‘[HAT AT ALL TIMES VENDOR SHAll. BE ABi.E TO REE..Y FOR ITS OWN BENEFIT ON SUCK WARRANTIES AND VENDOR SHALL NOT BE OBLIGATED TO PASS ON SUCH WARRANTIES IF SUCh ACTION ShALL RESULT IN VENDOR BEING UNABLE ‘10 RELY ON i’HE WARRANTIES FOR ITS OWN BENEFIT. VENDOR REPRESENIS AND WARRANTS TO CUSToMER THAT PRIVATE LABEL PRODUCTS SHALL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF NINETY (90) CALENDAR DAYS FROM THE DA1 E OF SHIPMEN I VENDOR S O13LRA I ION UNDER THIS WARRANTY IS I l’VIII FD TO THE REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT, AT VENDOR’S OPTION. THIS WARRANTY WILL NOT APPLY (I) IF MMCAP OR MMCAP PARTICIPA’[ING MEMBER MISuSES THE PRIVATE LABEL PRODUCT, (2) ALTERS OR MODIFIES THE PRIVATE LABEL PRODUCT IN ANY WAY, OR (3) RESELLS TIlL PRIVATE LABEL PRODUCT OR DOES NOT O1’HERWISE USE OR ADMINISTER THE PRIVATE LABEL PRODUCT THROUGH ITS EMPLOYEES OR AUTHORIZED AGENTS. NEITHER MMCAP NOR AN MMCAP PARTICIPATING FACILITY SHALT. lIOIJ) VENDOR LIABLE FOR ANY 8 Medical Solutions, Inc. MMCAP Contract No. MMSISOI3 DEFECT EN PRODUCTS OR SERVICES, REGARDLESS OF KIND. CUSTOMER AND A FACILiTY AGREE TO FILE SOLELY WITh MANUFACIURER OF ‘IHE PRODUCTS OR PROVIDER OF SERVICES (IF OTHER THAN VENDOR) ANY CLAIM OR LAWSUIT ALLEGING LOSS, INJURY, DAMAGE, OR DEATH ARISING OUT OF OR CAUSED BY TIlE USE, SALE, DISTRIBUTION, OR POSSESSION OF PRODUCTS OR SERVICES. ARTICLE 4: CONTRACT TERMS AND CONDitIONS 1. Contract Effective Date May 31, 2018, or the dale the State obtains all required signatures under Minnesota Statutes Section 16C.05, subdivision 2, whichever is later. The Commencement Date will be September 29, 2018 after the Contract Effective Date, unless a different, mutually agreeable Commencement Date is agreed upon between the Vendor and MMCAP. 2. Contract Expiration Date On May 31, 2020, the Contract may be extended for up to three (3) additional one (1)year periods UOfl execution of a written amendment and acceptance of both parties, for a total term not to exceed five (5) years. 3. Contract Termination 3.1. Termination without Cause Either party may cancel this Contract at any time during the term of the Contract, without cause, upon no less than one hundred eighty (180) days’ written notice to the other party. Upon termination, Vendor will be entitled to pro rata payment for Services performed in accordance with the terms and conditions of this Contract. 3.2. Termination with Cause Except as set forth in Article 3, Section 2, either party may cancel this Contract at any time, with cause, upon no less than 30 days’ written notice to the other party, and shall provide for a 30 day period beginning upon notice for the breaching party to cure all alleged defects. 3.3. Termination for Insufficient Funding MMCAP may immediately terminate this Contract if it does not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at a level sufficient to allow for the payment of the Services covered here. Termination must be by written or fax notice to the Vendor. MMCAP is not obligated to pay for any Services that are provided after receipt of notice to Vendor from MMCAP and effective date of termination. However, the Vendor will be entitled to payment, determined on a pro rata basis, for services perlbrmed to the extent that funds are available. The State will not be assessed any penally if the Contract is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. The State must provide the Vendor notice of the lack of funding within a reasonable time of the State’s receiving that notice. 3,4. Cancellation by Member States Subject to MMCAP termination rights, MMCAP Member States and MMCAP Participating Facilities may cancel their participation in this Contract with the Vendor at any time upon no less than thirty (30) days’ written notice to the other party. Vendor shall be entitled to payment of Products delivered prior to the end of the thirty (30) day notice period. 4. Vendor’s Duties The Vendor, who is not a state employee, vil1 provide Products and Services, in accordance with the terms and conditions of this Contract, and as set forth in Attachment B: Statement of iVork, as attached and incorporated herein. 5. Non-Exclusive Agreement MMCAP and Vendor acknowledge that this Contract neither creates nor implies the creation of an exclusive agreement between the parties. 9 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 6. Eligible Purchasers Starting on the Commencement Date, all MMCAP Participating Facilities located in the United States shall be eligible to purchase Products offered under this Contract. In addition, the Vendor must allow newly added MMCAP Participating Facilities, located in the MMCAP Participating Facilities List (password protected and published online at w.mmcap.org, as incorporated herein by reference, to access Contract Products and Services at the pricing set forth on Attachment A throughout the term of this Contract. Upon addition to the MMCAP Participating Facilities List, Vendor shall provide new MMCAP Participating Facilities with immediate access to Contract pricing. MMCAP will provide Vendor with monthly e-mail notices announcing that a new MMCAP Participating Facilities List has been posted online, however Vendor is expected to frequently review the posted MMCAP Participating Facilities List and also maintain its own roster of MMCAP Participating Facilities, since the listing is updated daily on the MMCAP website. In the event that an MMCAP Participating Facility ceases to be a MMCAP Participating Facility of MMCAP, Vendor agrees not to allow such entity to purchase the Vendor’s Products and Services related to this Contract. Any MMCAP Participating Facility desiring to utilize the contractual options, terms and conditions described in this Contract may, at its option, and without penalty or liability, terminate any existing contract or other arrangement with Vendor for the sole purpose of participating in the group plLrchasing arrangement set forth in this Contract. MMCAP reserves the right to acid and delete MMCAP Participating Facilities during the term of this Contract. Notwithstanding the foregoing, Vendor shall rely on the MMCAP Membership Listing electronic file available online at w.mmcap.org, which will be sent to Vendor, as such list is updated daily during the term of this Contract. To the extent that Vendor’s breach of this section is based upon incorrect information provided by MMCAP in the MMCAP Participating Facilities List, such breach shall be excused. 7. Separate Agreements During the term of this Contract, Vendor vill not solicit any MMCAP Participating Facilities or Prospective MMCAP Participating Facilities to enter into or negotiate a separate contract or agreement for the same or substantially equivalent Products offered in this Contract or any amendment, modification, or supplement to this Contract without MMCAP’s prior written consent. 8. Products an(I Services The Vendor shail provide Products and Services to MMCAP Participating Facilities listed on Attachment A. In addition, Vendor must at least offer Products under this Contract that are the same or substantially equivalent to the Products that are set forth on Attachment A. Both influenza vaccine distribution and prescription pharmaceutical distribution (including vaccines) are independent, separate service offerings. Unless Vendor is also awarded one or both of these other service offerings through separate contract award processes, it is required that reasonable efforts will be made by Vendor, to not solicit, distribute, or market prescription pharmaceuticals (including vaccines) and influenza vaccines, to MMCAP Participating Facilities under this contract. It is also required that Vendor will make reasonable efforts to direct MMCAP Participating Facilities to MMCAP, for guidance on these service offerings. All Products acquired by MMCAP under this Contract, are to be purchased for medical use only, and all uses shall be in accordance with such Products Manufacturer’s intended use as set forth on the Product’s labeling. All Products provided by Vendor under this Contract must comply with all applicable federal, state, and local laws, ord i jiances, rules and regulations, md ucling registration requirements of the Office of the app! icable Secretaiy of State. Vendor will not receive payment for Products/Services found by MMCAP or MMCAP Members to be unsatisfactory, and returned to Vendor pursuant to Vendor’s return goods policy or performed in violation of federal, state or local law. 9. Products and Services Pricing 9.1. Competitive Pricing During the term of this Contract, Vendor will perform quarterly pricing reviews of MMCAP Participating Facilities’ purchases and competitive pricing data supplied by MMCAP to Vendor. Subject to Vendor’s confidentiality 10 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 obligations with other GPOs, the pricing reviews will compare the MMCAP Contract Products and Services pricing to other GPOs or government-owned buying groups whose members are a similar class of trade and size to MMCAP’s Participating Facilities. Upon mutual consent between MMCAP and Vendor, such consent is not to be unreasonably withheld by Vendor, that the pricing is not competitive, Vendor shall provide written notice to MMCAP within tell (10) business days following any adjustments, lowering prices and/or increasing any discounts applicable to the purchase of the MMCAP Contract Products and Services by MMCAP Participating Facilities. 9.2. Vendor’s Published Catalog Price Vendor shall provide a percentage discount for each of Vendor’s Contracted Suppliers’ categories of Medical Products not listed on Attachment A. The list of the Vendor’s Contracted Suppliers’ categories of Medical Products must include the percentage discount horn tile Vendor’s published catalog price of the Product within a specific category, and be submitted on the Non-(ore Products tab ofAttachment A. The specific discount shall apply to each of the Vendor’s Contracted Suppliers’ categories of medical Products listed. 9.3. Pricing and Percentage Discounts All Product prices and percentage discounts listed on Attachment A, will be considered to be ceiling prices during the term of this Contract, and the ceiling prices and/or percentage discounts set forth on Attachment A, may not be changed unless approved in writing by MMCAP, as set forth in Section 392, Amendments. The pricing and percentage discounts listed on Attachment A, must be made available to all MMCAP Participating Facilities regardless of the size or location of the MMCAP Participating Facilities. 9.4. No Additional Fees Unless otherwise stated in this Contract no fee, percentage, or other cost may be added to the Products purchased under this Contract unless the fee, percentage, or cost is defined, and a formal amendment to the Contract is executed by both parties reflecting the agreed upon fee, percentage, or cost. 10. Discounts If applicable to this Contract, the parties understand that the pricing for Products provided as part of this Contract may be considered a “discount” within the meaning of 42 U.S.C. Section 1320a-7b(b)(3)(A) of the Social Security Act and the regulations promulgated thereunder at 42 C.F.R. §1001.952(h). In accordance with ‘12 C.F.R. §1001.952(h), Vendor will comply with any applicable obligations of Vendor as “SeLler” or “Offeror” of a discount, as applicable. If selling directly to an MvlCAP Participating Facility, Vendor vi1l fully and accurately report any discount on invoices, statements or reports submitted to MMCAP Participating Facilities. The parties will refrain from doing anything which would impede MMCAP Participating Facilities from meeting its obligations under the discount safe harbor regulations. In accordance with 42 C.F.R. §1001.952(h) MMCAP’s Participating Facilitiesfas “Purchasers”) shall disclose the discounts, or value of the Products under the state or federal program which provides cost or charge based reimbursement for the Products covered by this Contract, the net cost actually paid by the MMCAP Participating Facility. In the event a party determines that this discount program may not comply with such statutes, the parties agree to work together to establish a discount structure that meets the requirements of the discount safe harbor regulations set forth in 42 C.F.R. §1001.952(h). 11. Risk of Loss, Damage, and Shipping Terms Shipments under this contract shall be FOB Destination, freight prepaid and allowed, to the MMCAP Participating Facility’s receiving dock or if applicable, its pharmacy, unless otherwise agreed to by Vendor and Participating Facility. Title to and risk of loss of the Products covered by this Contract transfers to the MMCAP Participating Facility upon delivery to the MMCAP Participating Facility, as set fbrth above. During the term of this Contract Vendor shall not add any fuel surcharges to the purchase of any Products covered by this Contract. Notwithstanding the foregoing, emergency orders, rush orders, orders for Products not regularly stocked by Vendor’s local servicing Distribution Center, Products dropped shipped from Vendor’s Contracted Supplier, and orders not regularly scheduled are subject to an added shipping and handling charge determined by Vendor and disclosed to a MMCAP Participating Facility upon request. Vendor shall have the right to ship the Products at all times via its own vehicle or a carrier selected by Vendor 11 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 12. Compliance Vendor shall be in accordance and comply with all applIcable federal, state, and local laws, rules and regulations as applicable to each MMCAP Member State, in the performance of this Contract. 13. Failure to Supply MMCAP Core Products Unless the result of a Manufacturer Backorder, if Vendor fails to maintain sufficient inventory of Core Products set forth on Attachment A, to meet the anticipated needs of MMCAP Participating Facilities for Core Products, the ordering MMCAP Participating Facility may purchase an alternate equivalent Product on the open market for the period of time in which the Vendor is unable to provide the Core Product. 14. Purchase Orders and Payment 14.1. No Minimum Purchase Order Requirement There shall be no minimum order requirements or charges, regardless of order size or payment amount. 14.2. Eligible Purchase Orders As a condition for purchasing tinder this Contract, orders must only he accepted if made by authorized individuals from MMCAP Participating Facilities who are Eligible Purchasers under this Contact as stated in this section and defined in the Key Definitions of this Contract. MMCAP Participating Facilities may use their own fbrms for Purchase Orders. To the extent that the terms of any form differ from the terms of this Contract, the terms of this Contract supersede. Notwithstanding any terms on an MMCAP Member’s Purchase Order fbrm or other form provided by an MMCAP Member, any orders placed by MMCAP Members with Vendor will be priced and offered by Vendor per the terms and conditions of this Contract only, and no other terms and conditions provided by the Member shall apply to such orders. The Contract number and the purchase order number must appear on all documents (e.g., invoices, packing slips, etc.). The terms of this Contract shall apply to each Purchase Order issued by authorized individuals from MMCAP Participating Facilities whether such Purchase Order is communicated by the Purchase Order forrii, EDI, internet c commerce, Icsiniile, orally, or any other method, or whether reference is made to this Contract. 14.3. Verification of Authorized Purchasers Upon request by MMCAP, Vendor must verify that it provides Products and Services pursuant to this Contract only to MMCAP Participating Facilities. Only MMCAP Participating Facilities may purchase Products and Services tinder the terms of this Contract. \‘endor shall rely on the MMCAP membership listing electronic file, which MMCAP will noti’ to the Vendor on a monthly basis, as such list is updated daily, during the term of this Contract. Additionally, the membership listing is updated daily on the MMCAP website, in order for Vendor to access its latest and most updated version. If such listing is incorrect, Vendor shall not be deemed in breach of this Section. 14.4. Funds Available and Authorized/Non-Appropriation Vendor will not be compensated for Products delivered under a Purchase Order by any entity other than the MMCAP Participating Facility that issued the Purchase Order. By submitting a Purchase Order the MMCAP Participating Facility represents it has sufficient funds currently available and authorized for expenditure to finance the costs of the Purchase Order. 14.5. Termination of Individual Purchase Orders MMCAP Participating Facilities may terminate individual Purchase Orders (other than purchase orders for special orders and emergency preparedness), in whole or in part, immediately upon notice to Vendor, or at such later date as the MMCAP Participating Facility may establish in such notice, upon the occurrence of any of the following events: • The MMCAP Participating Facility fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the goods to be purchased tinder the Purchase Order; • Federal or State laws, regulations or guidelines are modified or interpreted in such a way that either the purchase of goods under the Purchase Order is prohibited or the MMCAP Participating Facility is prohibited from paying for such goods from the planned funding source; or 12 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 • Vendor commits any material breach of this Contract or a Purchase Order. Upon receipt of written notice of termination, Vendor shall stop performance under the Purchase Order as directed by the MMCAP Participating Facility. ‘I’erinination of a Purchase Order does not extinguish or prejudice the MMCAP Participating Facility’s right to enforce the Purchase Order with respect to Vendor’s breach of any warranty or any defect in or default of Vendor’s performance that has not been cured, including any right of the MMCAP Participating Facility to indemnification by Vendor or enforcement of a warranty. If a Purchase Order is terminated, the MMCAP Participating Facility must pay Vendor in accordance with the terms of this Contract for goods delivered and accepted by the MMCAP Participating Facility. 14.6. Purchase Order Default All Products furnished will be subject to inspection and acceptance by the MMCAP Participating Facility after delivery, in accordance with Vendor’s Product Return Policy as set forth in Attachment I. No Product substitutions, shipments of non-conforming goods or Products, or cancellations are permitted without prior written approval of the MMCAP Participating Facility. 14.7. Payment of Purchase Orders Each MMCAP Participating Facility will be responsible for payment of Products provided by Vendor. MMCAP will not be liable for an unpaid invoice of any MMCAP Member or MMCAP Participating Facility. Vendor agrees to invoice the MMCAP Participating Facility fbr all Products shipped. Vendor will accept payment of purcha.se orders via Electronic Funds Transfer (EFT), credit cards authorized by the ordering MMCAP Participating Facility and any other traditional means of payment. 14.8. Federal Funds Payments to the Vendor for Products ordered by MMCAP Participating Facilities under this Contract may be made from federal funds. The Vendor must agree to accept as payment in full for the Products, the amount as detennined by the federal agency or federal program administering the payments. Vendor shall comply with all applicable federal requirements imposed on these funds as may be identified by the ordering MMCAP Participating Facility. 14.9. Conditions of Payment All Services provided by the Vendor under this Contract must bc performed to MMCAP’s satisfaction (directed by the MMCAP Participating Facility or MMCAP Member), as determined at the reasonable discretion of MMCAP’s Authorized Representative, and in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations. Unless otherwise set forth in this Contract all Products provided under the terms of this Contract are subject to inspection and acceptance by the MMCAP Participating Facility in accordance with the Vendor’s Return Product Policy as set forth in Attachment I. 15. Vendor Fees 15.1. Administrative Fee In consideration for the administrative support and other services provided by MMCAP in connection to this Contract, the Vendor agrees to pay an Administrative Fee of three percent (3%) on all MMCAP Participating Facilities’ Net Purchases of Products and Services made directly with the Vendor by the MMCAP Participating Facilities. The payment of the Administrative Fees is intended to be in compliance with the Medicare and Medicaid Patient Protection Act of 1987 (Anti-Kickback Statute), as set forth at 42 USC I 320a-7b (b) (3) (C), and the “safe harbor regulation” set forth in 42 C.F. R. §1001.952(j) I’he Vendor will submit a check payable to “State of Minnesota, MMCAP Program” for an amount equal to three percent (3%) for all MMCAP Participating Facilities’ Net Purchases covered under this Contract. Vendor must provide Administrative Fee data, including amount to be paid, to MMCAP within ten (10) calendar days after the end of each month. The Administrative Fee must be paid as soon as is reasonable after the end of each month, but no later than thirty (30) calendar days after the end of the month. 13 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 Vendor shall not be required to pay administrative fees on excise tax amounts or returns or other shipments for which Vendor did not collect the purchase price. Vendor will not pay an Administrative Fee on the same purchase to more than one GPO, nor will Vendor split an Administrative Fee on any item between such groups. The parties shall comply with the requirements of 42 U.S.C. § l320a-7b(b)(3)(A) and the “Safe Harbor” regulations regarding discounts or other reductions in price set forth at 42 C.F.R. §1001.952(11) and GPOs set forth at 42 C.F.R. § 1001.952(j). In this regard, the parties acknowledge that Vendor will satisfy any arid all requirements imposed on sellers by these safe harbors; and MMCAP and each MMCAP Participating Facility will satisfy any and all requirements imposed on buyers and GPOs, respectively 15.1.1. Limitations • Vendor will not pay an Administrative Fee on the same purchase to more than one (1) GPO, nor will Vendor split an Administrative Fee on any item between such groups. • Vendor shall have ten (10) business days from tile date of notice by MMCAP that the MMCAP Participating Facility is an Eligible Purchaser under this Contract to qualify said new Facility’s status and eligibility for inclusion of tile purchases by said Facility in the calculation of tile Administrative Fee. Vendor will not pay an Administrative Fee on purchases of Products ordered, but not yet delivered, on or prior to the date the Facility joins MMCAP. All sales of Medical Equipment, and service, including repairs, parts and preventive maintenance, are exempt of administrative fees, set forth in Section 15i, Administrative Fee. Purchases of accessories and consumables for Medical Equipment are still subject to Administrative Fees, unless the accessories aild tile consumables are included in the service, repair or preventive maintenance of tile medical device. 16. Authorized Representatives MMCAP’s Authorized Representative is Alan Dahlgren, MMCAP Managing Director, or ills/her successor, and has tile responsibility to monitor the Vendor’s performance. Tile Vendor’s Authorized Representative is David Delgado, Majority Owner or his successor. If tile Vendor’s Authorized Representative changes at any time during this Contract, the Vendor must promptly notify MMCAP in writing via e-mail addressed to Enlilio Graulau, MMCAP’s Healthcare Products and Services Coordinator, at: Emilio.Graulau@state.mn.us or their designee, who will assume that responsibility for Vendor. 17. Notices Notices under this Contract shall be in writing, effective 11OIl receipt and shall be sent by any of tile following methods (i) facsimile or e-mail with return facsimile or e-mail acknowledging receipt; (ii) United States Postal Service certified or registered mail witll return receipt showing receipt; (iii) courier delivery service with proof of delivery; or (iv) personal delivery. Either party to this Contract may change the names and addresses for receipt. To MMCAP: Af1fCA P Healthcare Products & Services Program Coordinator 50 Sherburne Avenue, Suite 112 St. Patti, MN 55155 Email: MMCAPContracts@state.mn.us Fax: 651.297.3996 To the Vendor: Medical Solutions, Inc. David Delgado 10401 93rd Avenue North, Suite 100, Maple Grove, MN 55369 Email: ddelgado@medicalsolutionsinc.com Fax: 763-493-4130 14 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 18. Indemnification In the performance of this contract by Vendor, or Vendor’s agents or employees, the Vendor must indemnify, save, and hold harmless the State, MMCAP, MMCAP Participating Facilities and MMCAP Member States, their agents, and employees (“Customer Indemnified Parties”), from any claims or causes of action brought by third parties, including attorney’s fees incurred, to the extent caused by Vendor’s omissions, and negligent, intentional, or willful misconduct of Vendor in the performance of this Contract. On a comparative negligence basis, the indemnification obligations of this section do not apply in the event the claim or cause of action is the result of a Customer Indemnified Party’s sole negligence, intentional, or willful misconduct. This clause will not be construed to bar any legal remedies the Vendor may have for the State’s failure to fulfill its obligation under this Contract. Pursuant to the Minnesota Constitution Article XI Section 1, MMCAP cannot indemnify the Vendor. 19. Liability Limitations IN NO EVENT SHALL EITHER PARTY RE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL (LNCLUI)ING LOST PROFITS), PUNITIVE, INCIDENTAL OR INDiRECT DAMAGES INCURRED BY THE OTHER PARTY, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT TI 1EV HAVE BEEN ADVISED OF THE POSSIBILITY, OF SUCH DAMAGES. ANY COSTS AND EXPENSES INCURRED BY A PARTY TO MITIGATE OR LESSEN ANY DAMAGES OR HARM CAUSED BY A PARTY’S NEGLIGENCE OR ANY FAILURE OF A PARTY TO COMPLY WITH THE WARRANTiES (OTHER THAN THE GPO REPRESENTATION IN ARTICLE 3, SECTION I) REFERENCED IN THIS CONTRACT SHALL BE CONSIDERED DIRECT DAMAGES. 19.1. Warranty Vendor makes no representation or warranty of any kind, express or implied, as to the merchantability or any Products or their fitness for a particular use or purpose. MMCAP and each MMCAP participating facility shall look to the Manufacturer of Products and the provider of Services (if other than Vendor) for any warranty thereon. No agent, employee, or representative of vendor has any authority to make any affirmation, representation, or warranty concerning Products not set forth in this contract. Vendor agrees to use commercially reasonable efforts to pass on, on a non-exclusive basis, from any Manufacturers or suppliers of Products, the Product warranties provided by the Manufacturer or supplier to the extent such warranties are transferable. MMCAP and each MMCAP participating facility acknowledge that all times Vendor shall be able to rely for its own benefit on such warranties and vendor shall not be obligated to pass on such warranties if such action shall result in Vendor being unable to rely on the warranties for its own benefit. With the exception of Private Label Products, neither MMCAP nor any MMCAP participating facility shall hold vendor liable for any defect in Products or Services, regardless of kind. MMCAP and MMCAP participating facilities agree to file solely with Manufacturer of the Products or provider of the Services (if other than vendor) any claim or lawsuit alleging loss, injury, damage or death arising out of or caused by the use, sale, distribution, or possession of Products or Services. 20. Audits Under Minn. Stat. § 16C.05, subd. 5, the Vendor’s books, records, documents, and accounting procedures and practices relevant to this contract are subject to examination by the State, MMCAP, and/or the State Auditor or Legislative Auditor, as appropriate, for a minimum of six (6) years from the end of this contract. MMCAP and any MMCAP Participating Facility served by the Vendor shall have the right to audit Vendor to determine the validity of invoice pricing. Audits may be conducted by representatives of MMCAP in collaboration with other state and federal authorities. Such audits may be conducted only during ordinary business hours and upon reasonable prior notice to Vendor. The Vendor and MMCAP andlor the MMCAP Participating Facility shall each be responsible for its own costs associated with any audit, including reasonable costs related to the production of records and/or other documents requested by the other party. 15 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 21. Government Data Practices The Vendor and MMCAP must comply with the Minnesota Government Data Practices Act, Minn. Stat. Cli. 13 as it applies to all data provided by MMCAP tinder this contract, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor under this contract. The civil remedies of Minn. Stat. § 13.08 apply to the release of the data governed by the Minnesota Government Practices Act, Mmii. Stat. Cli. 13, by either the Vendor or MMCAP. If the Vendor receives a request to release the data referred to in this clause, the Vendor must immediately notif’ MMCAP. MMCAP will give the Vendor instruclions concerning the release of the data to the requesting party before the data is released. Vendor agrees to indemnify, save, and hold the State of Minnesota, its agent and employees, harmless from all claims arising out of resulting from, or in any manner attributable to any violation by Vendor of any provision of the Minnesota Government Data PractIces Act, including legal fees and disbursements paid or incurred to enforce this provision of the Contract. 22. Intellectual Property and Data MMCAP owns all rights, title, and interest in MMCAP customer data, sales transaction data, DEAIIIIN information (subject to third-party rights), contract pricing, EDI transaction data, reverse distribution data, and payment data, including copyrights and trade secrets contained therein. MMCAP grants to Vendor a revocable, nontransferable, fully paid license, for the term of this Contract, to (i) release state specific data to an MMCAP Member’s State Contact, MMCAP Participating Facilities; (ii) release any of the above data to Product Manufacturers, when necessary for the performance of this Contract or as required by Vendor’s agreements with such Product Manufacturers; (iii) to release any of the above data to other MMCAP-approved third parties, when necessary for the performance of this Contract; (iv) provide MMCAP Participating Facility purchase data to third-party aggregators, subject to Vendor’s reasonable eftrts to require such data aggregators to protect any identifiable data from discovery by another third party and subject to written approval by MMCAP; (v) provide MMCAP Participating Facility purchase data to other OPOs of which the MMCAP Participating Facility is also a member, provided such data will not include MMCAP-identifiable data; and (vi) use any of the above data for its internal purposes. Any MMCAP identifiable data provided hereunder to a third party must identify the data as MMCAP data and subject to Mimi. Stat. Cli. 13. Vendor hereby agrees that in the event that an MMCAP Member or MMCAP Participating Facility requests in writing that its purchase data be kept confidential, such data will not he provided to third party aggrcgators. Vendor owns all rights, title, and interest to any aggregated data identifiable as not arising from this Contract and any other intellectual properly created for or presented to MMCAP. Vendor grants to MMCAP an unlimited, non-revocable, non-transferable, fully paid license, for the term of this Contract, to use all intellectual property created for or presented to MMCAP under this Contract. 22.1. Pre-Existing Intellectual Property Subject to the license rights set forth above, MMCAP and Vendor shall each retain ownership of, and all right and, title and interest in and to, their respective pre-existing intellectual property. Vendor grants to State an unlimited, royalty-free, paid up, perpetual, non-exclusive, irrevocable, non-transferable license to use and modify any pre existing Vendor intellectual property, including marketing materials and materials contained in solicitation responses provided by Vendor to MMCAP, an MMCAP Member, or MMCAP Participating Facility. The aforementioned license is solely for use by MMCAP, an MMCAP Member, or MMCAP Participating Facility, and its agents related to an internal business purposes. 22.2. Private Label Products Indeni nilication Vendor will defend, indemnify and hold the Customer Indemnified Parties harmless from any action or other proceeding brought agaInst a Customer Indemnified Party by a t.hird party to the extent that it is based on a claim that the use of the Private Label Products delivered under this Contract infringes any U.S. copyright, patent or trademark. Vendor vill pay costs and damages finally awarded against a Customer Indemnified Party as a result thereof; provided, that a Customer Indemnified Party (I) notifies Vendor of the claim within ten (10) business days, (ii) 16 Medical Solutions, Inc. MMCAP Contract No. MMSI8O13 provides Vendor with all reasonably requested cooperation, informatIon and assistance, and (iii) gives Vendor sole authority to defend and settle the claim subject to applicable state law. (i) Exclusions Vendor will have no obligations under this Section 22.2 with respect to claims arising from: (I) modifications to Private Label Products that were not performed by Vendor; (2) misuse of the Private I abel Products; (3) compliance with specifications provided by a Customer Indemnified Party; or (4) the use or integration of Private Label Products delivered under this Customer in combination with other Products or other technologies not provided by Vendor, if the claim would not have arisen but for the particular combination. THE FOREGOiNG ARE VENDOR’S SOLE ANT) EXCLUSIVE OBLIGATIONS, AND CUSTOMER INDEMNIFIED PARTIES’ SOLE ANT) EXCLUSIVE REMEDIES, WITH RESPECT TO OR ARISING OUT OF THE INFRINGEMENT OR MISAPPROPRIATION OP INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO PRIVATE LABEL PRODUCTS. (ii) Injunctions If a Customer Indemnified Party’s use of any Private Label Products delivered under this Contract is, or in Vendor’s opinion is likely to be, enjoined due to a claim of infringement or misappropriation as specified in Section 23.2 above then Vendor may, at its sole option and expense: (1) obtain for a Customer Indemnified Party the right to continue using such Private Label Products under this Contract; (2) replace or modify such Private Label Products to avoid such a claim, provided that the replaced or modified Private Label Products is substantially equivalent in function to the affected Private Label Products; or (3) if options (1) and (2) above are not practical in Vendor’s reasonable opinion, then Vendor may take possession of the affected Private Label Products and terminate a Customer Indemnified Party ‘s rights and Vendor’s obligations under this Contract in respect of such Private Label Products, and upon any such termination Vendor will refund to a Customer Indemnified Party the purchase price of the affected Private Label Product net any discounts, rebates or other adjustments. 23. Workers’ Compensation and Other insurance Vendor certifies that it is in compliance with all insurance requirements specified in the solicitation document relevant to this contract. Vendor shall not commence work under the contract until they have obtained all the insurance specified in the solicitation document. Vendor shall maintain such insurance in force and effect throughout the term of the contract. Further, the Vendor certifies that it is in compliance with Mimi. Stat. § 176.Igl, subd. 2, pertaining to workers’ compensation insurance coverage. The Vendor’s employees and agents will not be considered State employees. Any claims that may arise under the Minnesota Workers’ Compensation Act on behalf of these employees or agents and any claims made by any third party as a consequence of any act or omission on the part of these employees or agents are in no way MMCAP’s obligation or responsibility. Vendor shall not commence work under the contract until they have obtained all the insurance described below and MMCAP has approved such insurance. Vendor shall maintain such insurance in force and effect throughout the term of the contract. Vendor is required to maintain and furnish satisfactory evidence of the following insurance policies: 23.1. Workers’ Compensation Insurance Except as provided below, Vendor must provide Workers’ Compensation insurance for all its employees in accordance with the statutory requirements of the State of Minnesota, including Coverage B, Employer’s Liability. Insurance minimum limits are as follows: $100,000— Bodily Injury by Disease per employee $500,000 — Bodily Injury by Disease aggregate $100,000 — Bodily Injury by Accident If Minnesota Statute 176.041 exempts Vendor from Workers’ Compensation insurance or if the Vendor has no employees in the State of Minnesota, Vendor must provide a written statement. signed by an authorized representative, indicating the qualifying exemption that excludes Vendor from the Minnesota Workers’ Compensation requirements. 17 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 If during the course of the contract the Vendor becomes eligible for Workers’ Compensation, the Vendor must comply with the Workers’ Compensation Insurance requirements herein and provide MMCAP with a certificate of insurance. 23.2. Commercial General Liability insurance Vendor will maintain insurance protecting it from claims for damages for bodily injury, including sickness or disease, death, and for care and loss of services as well as from claims for property damage, including loss of use which may arise from operations under the Contract whether the operations arc by the Vendor or by a subcontractor or by anyone directly or indirectly employed by the Vendor under the Contract. Insurance minimum limits are as follows: • $2,000,000 — per occurrence • $2,000,000 — annual aggregate • $2,000,000 — annual aggregate — Products/Completed Operations The following coverages must be included: • Premises and Operations Bodily Injury and Property Damage • Personal and Advertising Injury • Blanket Contractual Liability • Products and Completed Operations Liability • MMCAP named as an Additional Insured 23.3. Comniercial Automobile Liability Insurance Auto Liability insurance is not necessary unless the Vendor, Vendor’s employees, or subcontractors will be driving on state property or on the property of MMCAP Members or MMCAP Participating Facilities or will be using. owned, hired, or non-owned vehicles to conduct business on behalf of MMCAP. Vendor will maintain insurance protecting it from claims for damages for bodily injury as well as from claims for property daniage resulting from the ownership, operation, maintenance or use of all owned, hired, and non-owned autos which may arise from operations under this Contract, and in case any work is subcontracted the Vendor will require the subcontractor to maintain Commercial Automobile Liability insurance. Insurance minimum limits are as follows: • $2,000,000 —- per occurrence Combined Single limit for Bodily Injury and Property Damage In addition, the following coverages should be included: • Owned, Hired, and Non-owned Automobile 23.4. Professional/Technical, Errors and Omissions, and/or Miscellaneous Liability Insurance This policy will provide coverage for all claims the Vendor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Vendor’s professional services required under the contract. Vendor is required to carry the following minimum limits: S2,000,000 — per claim or event $2,000,000 annual aggregate Any deductible will be the sole responsibility of the Vendor. 18 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 The retroactive or prior ad1s date olsuch coverage shall not be after the effective date of this Contract and Vendor shall maintain such insurance for a period of at least three (3) years, following completion of the work. If such insurance is discontinued, extended reporting period coverage must be obtained by Vendor to fulfill this requirement. 23.5. Additional Insurance Conditions • Vendor’s General Liability and Automobile Liability policy(ies) shall be primary insurance to any other valid and collectible insurance available to MMCAP with respect to any claim arising out of Vendor’s performance under this Contract, except to the extent such liability is caused by MMCAP; • Vendor shall provide thirty (30) days’ advanced written notice to MMCAP in the event of policy cancellation; • Vendor is responsible for payment of Contract related insurance premiums and deductibles; • If Vendor is self-insured, a Certificate of Self-Insurance must be attached; • Vendor’s policy(ies) shall include legal defense fees; • Vendor shall obtain insurance policy(ies) from insurance company(ies) having an “AM BEST” rating of A- (minus); Financial Size Category (FSC) VII or better, and authorized to do business in the State of Minnesota (except if self-insured or via captive insurance); and • An Umbrella or Excess Liability insurance policy may be used to supplement the Vendor’s policy limits to satisfy the full policy limits required by the Contract. 23.6. MMCAP reserves the right to terminate the Contract in accordance with Article 4, Section 3.2, if the Vendor is not in compliance with the insurance requirements and retains all rights to pursue any legal remedies against the Vendor. All insurance policies must be open to inspection by MMCAP, and copies of policies must be submitted to MMCAP’s authorized representative upon written request. 23.7. The Vendor is required to submit Certificates of Insurance acceptable to MMCAP as evidence of insurance coverage requirements prior to commencing work under the contract. 24. Publicity and Endorsement 24.1. Publicity Any publicity by Vendor regarding the content of this Contract must identify MMCAP as the sponsoring agency and must not be released without prior written approval from MMCAP’s Authorized Representative. Any publicity by MMCAP regarding the subject matter of this Contract must not be released without the prior written notice of Vendor’s Authorized Representative, except that either party may publicize non-trade secret or public information in the normal course of business in order to promote its services. For purposes of this provision, publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract. 24.2. Endorsement The Vendor must not claim that MMCAP endorses its Products or Services, nor may MMCAP claim that Vendor endorses its Products or Services. 25. Direct Marketing, Advertising, and Offers with Participating Facilities Any direct advertising, marketing, or direct offers the Vendor intends to distribute in any form to MMCAP Participating Facilities for Contract Products must be approved in writing by the MMCAP Office. 26. Governing Law, Jurisdiction and Venue Minnesota law, without regard to its choice-oIlaw provisions, governs this contract. Venue for all legal proceedings out of this contract, or its breach, must be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. Except to the extent that the provisions of this Contract are clearly inconsistent therewith, this Contract will be governed by the Uniform Commercial Code (UCC) as adopted by the State of Minnesota. To the extent 19 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 this Contract entails delivery or performance of services, such services vill be deemed “goods” within the meaning of the UCC except when to do so is unreasonable. 27. Antitrust The Vendor hereby assigns to the State of Minnesota any and all claims for overcharges as to Products provided in connection with this Contract resulting from antitrust violations that arise under the antitrust laws of the United States and the antitrust laws of the State of Minnesota. 28. Data Disclosure tinder Minnesota Statute § 270C.65, Subdivision 3 and other applicable law, (lie Vendor consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number, already l)roVidCd to the State, to federal and state agencies and state personnel involved in the payment of state obligations. These identification numbers may be used in the enforcement of federal and state laws which could result in action requiring the Vendor to tile state tax returns, pay delinquent state tax liabilities, if any, or pay other state liabilities. 29. Payment to Sub-Contractors (If Applicable) As required by Minnesota Statute § I 6A. 1245, the prime Vendor must pay all subcontractors, less any retainage, within 10 calendar days of the prime Vendor’s receipt of payment from the State for undisputed services provided by the subcontractor(s) and must pay interest at the rate of one and one—half percent per month or any part of a month to the subcontractor(s) on any undisputed amount not paid on time to the subcontractor(s). 30. Minnesota Statute § 181.59 The Vendor will comply with the provisions of Minnesota Statute § 181 .59 which requires: Every contract for or on behalf of the state of Minnesota, or any county, city, town, township, school, school district, or any other district in the state, for materials, supplies, or construction shall contain provisions by which the Vendor agrees: (1) That, in the hiring of common or skilled labor for the performance of any work under any contract, or any subcontract, no Vendor, material supplier, or Vendor, shall, by reason of race, creed, or color, discriminate against the person or persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; (2) That no Vendor, material supplier, or Vendor, shall, in ally manner, discriminate against, or intimidate, or prevent the employment of any person or persons identified in clause (1) of this section, or on being hired, prevent, or conspire to prevent, the person or persons from the performance of work under any contract on account of race, creed, or color; (3) That a violation of this section is a misdemeanor; and (4) That this contract may be canceled or terminated by the state, county, city, town, school hoard, or any other person authorized to grant the contracts for employment, and all money due, or to become due under the contract, may be forfeited for a second or any subsequent violation of the terms or conditions of this contract. 31. Affirmative Action Requirements for Contracts in Excess of $100,000 and if the Vendor has More than 40 Full-Time Employees in Minnesota or its Principal Place of Business MMCAP intends to carry out its responsibility for requiring affirmative action by its Vendors. 31.1. Covered Contracts and Vendors If the Contract exceeds $100,000 and the Vendor employed more than 40 full-time employees on a single working day during the previous 12 months in Minnesota or in tile state where it has its principle place of business, then the Vendor must comply with the requirements of Minn. Stat. § 363A.36 and Minn. R. Parts 5000.3400-5000.3600. A Vendor covered by Mmmi, Stat. § 363 A.36 because it employed more than 40 full-time employees in another state and does not have a certificate of compliance, must certify that it is in compliance with federal affirmaive action requirements. 31.2. Miami. Stat. § 363A.36 Minn. Stat. § 363A.36 requires the Vendor to have an aftirmative action plan for the employment of minority persons, women, and qualified disabled individuals approved by the Minnesota Commissioner of Human Rights (“Commissioner”) as indicated by a certificate of compliance. The law addresses suspension or revocation of a 20 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 certificate of compliance and contract consequences in that event. A contract awarded without a certificate of compliance may be voided. 31.3. Minn. R. 5000.3400-5000.3600 a. General Minn. R. 5000.3’l00-5000.3600 implement Minn. Stat. § 363A.36. These rules include, hut arc not limited to, criteria for contents, approval, and implementation of affirmative action plans; procedures for issuing certificates of compliance and criteria for determining a Vendor’s compliance status; procedures for addressing deficiencies, sanctions, and notice and hearing; annual compliance reports; procedures for compliance review; and contract consequences for non-compliance. The specific criteria for approval or rejection of an aflirmative action plan are contained in various provisions of Minn. R. 5000.3400-5000.3600 including, but not limited to, parts 5000.3420- 5000.3500 and 5000.3552-5000.3559. b. Disabled Workers The Vendor must comply with the following affirmative action requirements for disabled workers. 1. The Vendor must not discriminate against any employee or applicant for employment because of physical or mental disability in regard to any position for which the employee or applicant for employment is qualified. The Vendor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled persons without discrimination based upon their physical or mental disability in all employment practices such as the following: employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 2. The Vendor agrees to comply with the rules and relevant orders of the Minnesota Department of Human Rights issued pursuant to the Minnesota Human Rights Act. 3. In the event of the Vendors noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with Minnesota Statutes Section 363A.36, and the rules and relevant orders of the Minnesota Department of 1-luman Rights issued pursuant to the Minnesota Human Rights Act. 4. The Vendor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the commissioner of the Minnesota Department of Human Rights. Such notices must state the Vendor’s obligation under the law to take affirmative action to employ and advance in employment qualified disabled employees and applicants for employment, and the rights of applicants and employees. 5. ‘[he Vendor must notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the vendor is bound by the terms of Minnesota Statutes Section 363A.36, of the Minnesota Human Rights Act and is committed to take affirmative action to employ and advance in employment physically and mentally disabled persons. a. Consequences The consequences for the Vendor’s failure to implement its affirmative action plan or make a good faith effort to do so include, hut are not limited to, suspension or revocation of a certificate of compliance by the Commissioner, refusal by the Commissioner to approve subsequent plans, and termination of all or part of this contract by the Commissioner or MMCAP. b. Certification The Vendor hereby certifies that it is in compliance with the requirements of Minn. Stat. § 363A.36 and Minn. R. 5000.3400-5000.3600 and is aware of the consequences for noncompliance. 32. Certification of Nondiscrimination (In Accordance with Minn. Stat. § 16C.053) The following term applies to any contract for which the value, including all amendments, is $50,000 or more: Vendor certifies it does not engage in and has no present plans to engage in discrimination against Israel, or against persons or entities doing business in Israel, when making decisions related to the operation of the Vendor’s business. For purposes of this section, “discrimination” includes but is not limited to engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel, when such actions are taken in a manner that in any way discriminates on the basis of nationality or national origin and is not based on a valid business reason. 21 Medical Solutions, Inc. MMCAP Contract No. MMSI8OI3 33. Contingency Fees Prohibited Pursuant to Minnesota Statutes Section 1OA.06, no person may act as or employ a lobbyist for compensation that is dependent upon the result or outcome of any legislation or administrative action. 34. Force Majeure Neither party hereto will be considered in default in the performance of its obligations hereunder to the extent that performance of any such obligations is prevented or delayed by acts of God, war, riot, tire, or raw material or transportation shortages that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default and take all necessary steps to bring about performance as soon as practicable. Except for provisions of this Contract relating to protection of Trade Secrets and the obligation of payment, neither party will be liable for non-performance caused by circumstances beyond their reasonable control, including, but not limited to (1) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; (vi) stale government shutdown; (vii) import or export regulations or embargos; (viii) defaults of subcontractors where such default is itself caused by force majeure. 35. Severability If any non-material provision of the Contract, including items incoiporated by reference, or any application of the terms thereof shall be found to be illegal, invalid, unenforceable, or void, then both MMCAP and the Vendor will be relieved of all obligations arising under such provisions. The remainder of the Contract, including all provisions and the application of such provisions, shall not be affected thereby and shall he enforced to the greatest extent permitted by law. 36. Escalation Procedures If Vendor and an MMCAP Participating Facility (the “Parties”) have disputes related to either Parties’ performance under this Contract, then the Parties will first utilize the Vendor’s Government Sales Escalation Procedure as set forth on Attachment L of this Contract. If the dIsputes cannot be resolved, the Parties vill handle resolution of the unresolved disputes using the Ibilowing procedure set forth below. 36.1. Notification The Parties shall promptly notify each other of any knovn unresolved dispute and work in good faith to resolve such dispute within five (5) business days. Absent resolution after five (5) business days, parties shall proceed to Documentation and Escalation steps described below. 36.2. Documentation The Parties will jointly develop a written summary of the unresolved dispute within five (5) business days that describes the issue(s), relevant impact, and positions of both parties. The summary must be sent by the Vendor to the MMCAP Office, the MMCAP Participating Facility, and the Vendor’s MMCAP Primary Account Representative. 36.3. Escalation of Dispute If the Parties are unable to resolve the issue in a timely manner, as specified above, either the MMCAP Participating Facility or Vendor may escalate the resolution of the issue to a higher level of management. Where escalation of the issue proves ineffective, either Party may contact the MMCAP Office and/or the Vendor’s MMCAP Representative for further resolution. When escalated to MMCAP, a teleconlèrence will be scheduled with the MMCAP Office and the Vendor’s MMCAP Primary Account Representative to review the briefing document and develop a proposed resolution and plan of action. The plan and titneline must be agreed to by all relevant parties to the dispute including; the MMCAP Office, the MMCAP Participating Facility, and Vendor. 22 Medical Solutions, Inc. MMCAP Contract No. MMS 18013 36.4. Resolution Plan Upon development of a plan and tiineline for resolution, a Party vill have a reasonable amount of time to cure the issue, but in no event longer than thirty (30) business days, except by express written agreement of the Parties. Failure to cure any defect within thirty (30) business days shall give the non-breaching Party cause to declare a material breach, subject to the termination rights set forth herein. a. Vendor Failure on Member Contract Attachment 1. Upon identifying non-attachment of MMCAP Members, to the Products and pricing of this Agreement, Vendor has ten (10) calendar days, following written notice from the MMCAP Office, in order to process credits to the MMCAP Member(s) on Products under the pricing of this Agreement, and to report such activity of sales to the MMCAP Office in the Sales Data Usage and Administrative Fee Data Report. 2. In the event the service failure remains uncured, and Vendor has not applied such credits to the MMCAP Member(s), and not reported the sales to the MMCAP Office, Vendor must pay the amount of the assessed and non-reported Administrative Fee activity to MMCAP, no later than ten (10) business days upon notification from the MMCAP Office, and a fee of $500 per business day thereafter. 3. If the Vendor does not comply with the assessed fees and amounts as specified above, MMCAP reserves the right to pursue any remedy available at law, including, without limitation, termination of the Contract and/or debarring the Vendor from receiving a Contract from the State of Minnesota. b. Vendor Failure on Reporting Requirements 1. Upon the non-receipt of reporting activity from the Vendor, and following written notice from the MMCAP, (I) Vendor has ten (10) calendar days in order to submit the required reporting activity to the MMCAP Office, (ii) and if applicable, to process any credits to the affected MMCAP Member(s). 2. In the event the material breach has not been cured, Vendor must pay any amounts assessed on non- reported activity to MMCAP, no later than ten (10) business days upon notification from the MMCAP Office, and a fee of $500 per business day thereafter. 3. If the Vendor does not comply vith the assessed fees and amounts as specified above, MMCAP reserves the right to pursue any remedy available at law, including, without limitation, termination of the Contract and/or debarring the Vendor from receiving a Contract from the State of Minnesota. c. Vendor Failure on Pricing Accuracy 1. Upon identifying pricing inaccuracy on the sales of Products under this A’eement, and following written notice from the MMCAP Office, Vendor has ten (10) business days in order to process credits to the MMCAP Member(s). 2. In the event the material breach has not been cured, and upon written notification by the MMCAP Office, (i) Vendor must pay a fee of $500 per business (lay thereafter to the MMCAP Office, and (ii) resolve applicable credits to the affected MMCAP Member(s), no later than ten (10) business days after written notification. 3. If