Medical Products & Services (MMCAP – Gro...

Amendment No. 1 to Contract for PADD19200399 and STATE OF IDAHO Parties: STATE OF IDAHO By and Through the Division of Purchasing and Mckesson Medical — Surgical Minnesota Supply Inc. “Contractor” A. The Parties entered into a Contract for Purchase of (“Contract”), effective Contract Start Date March 27, 2019. Based on the above recitals, and good and valuable consideration, the receipt of which is hereby acknowledged, the Contract is amended as follows: 1. Extend contract and add funds. 2. $250,000.00 3. Except as expressly modified in this Amendment, all other terms and conditions of the Contract remain in full force and effect. 4. This Amendment is effective on 3/1/2020 12:00 AM. In no event will this Amendment be effective until executed by DOP. STATE OF IDAHO I Digitally signed byChelseae sea D k 11 ,.I Date: 2020.02.26 t4:55:09 0 LI -0700 Chelsea Robillard Date: DocuSign Envelope ID: A251 ED83-3F05-49B9-A697-71328954E57C MMS18000 Amendment #25 Tendered: January 3, 2Q21)

AMENDMENT NO.25 TO MMCAP INFUSE CONTRACT NO. MMSI 8000 THIS AMENDMENT NO. 25 (“Amendment”) is entered into on the date all required signatures are obtained for this document by and between the State of Minnesota acting through its Commissioner of Administration (‘Minnesota”) on behalf of the MMCAP Infuse (“MMCAP Infuse”) and Mckesson Medical-Surgical Inc., a corporation located at 9954 Mayland Drive, Suite 4000, Richmond, VA 23233; McKesson Medical-Surgical Minnesota Supply Inc., a corporation located at 12755 Highway 55 #R200, Plymouth, MN 55441; and McKesson Medical-Surgical Government Solutions LLC, a limited liability company located at 9954 Mayland Drive, Suite 5176 Henrico, VA 23233 (collectively “Vendor). RECITALS WHEREAS, MMCAP Infuse and Vendor entered into MMS1 8000 on March 1, 2018 (Original Contract”); WHEREAS, MMCAP Infuse and Vendor amended certain terms and conditions of the Original Contract by the way of the MMS18000 Amendment 1 on May 21, 2018; Amendment 16 on December 21, 2018; Amendment 17 on November 28, 2018; Amendment 20 on March 25, 2019; Amendment 21 on April 18, 2019; Amendment 22 on June 5, 2019; Amendment 23 on July 1, 2019; and Amendment 24 on September 11, 2019; together, Original Contract and Amendments 1, 16, 17, and 20-24 will be referred to as “Agreement”; WHEREAS, MMCAP Infuse and Vendor have agreed to certain changes in the terms and conditions set forth in the Agreement and have agreed to amend the Agreement to reflect said changes; WHEREAS, besides the terms and conditions of the Agreement amended in this Amendment, the Agreement remains in full force and effect; and NOW, THEREFORE, the parties acknowledge and hereby agree that the Agreement shall be amended as follows; Capitalized Terms; Definitions; Conditions. The Agreement and Amendment shall be read together as one document. Any capitalized terms used in Amendment that are defined in the Agreement will have the same meaning(s) when used herein, unless the context clearly requires otherwise. To the extent there shall exist a conflict between the Agreement and this Amendment, the terms of this Amendment will control. Unless otherwise clearly altered, modified, deleted, or amended otherwise, the terms of the Agreement will continue in their entirety and govern the contractual relationship between Vendor and MMCAP Infuse. In this Amendment, changes to pre-existing Agreement language will use €4ike4h4o4Ig for deletions and underlinino for insertions. Clause Modifications: Revision 1: When fully executed, ARTICLE 4: CONTRACT TERMS AND CONDITIONS, clause 2. Contract Expiration Date in the Agreement will be amended as follows; 2. Contract ExpIration Date March 1,-02O the Contract may be extended for execution of a written amendment and acceptance of both parties4o otal4erct-44otto exceod-fPe.{ê) Except as herein amended, the provisions of the Agreement between the parties are hereby expressly reaffirmed and remain in full force and effect. [End of Amendment; Signature Page Follows] Page 1 of 2 DocuSign Envelope ID. A251 ED83-3F05-49B9-A697-71 328954E51C VENDOR: Mckesson Medical-Surgical Inc. Mckesson Medical-Surgical Minnesota Supply Inc. Mckesson Medical —Surgical Government Solutions LLC The Vendor certified that the appropriate person(s) have executed this Amendment on behalf of the Vendor as required and by applicable articles, bylaws, resolutions, or ordinances. Name: ,j4apbeII Signature: t:EE’;i1:_ Titte: YMPIênt, Government Sales Date 1/27/2020 MMSI 8000 Amendment #25 Tendered: January 3, 2020 STATE OF MINNESOTA FOR MMCAP INFUSE In accordance with Minn. Stat. § 16C.03, subd. 3 Name: SignaturQ— Date: 717d COMMISSIONER OF ADMINISTRATION In accordance wiçh Minn. S § 16C.05/subd. 2 Name: ‘.JJ)f’) I42/?’/’7 qc€ Signature: .,L—’--L-%_. Date: J/Z7/2i)? [Signature Page] Page 2 of 2 WebProcure: Request And Workflow https://webprocure.perfect.com/WebDriver?ACT=RptPOSuppAct... IDAHO State of Idaho Participating Addendum Account Number: Purchase Order Date: Service Start Date: Service End Date: Payment Method: Payment Terms: Currency FOB Instruction: AC-i March 27, 2019 March 27, 2019 March 1, 2020 Invoice NET3O USD Destination Rachel Gandsey McKesson Medical 12755 Highway 55 Plymouth, MN 5544i Phone: 8003288i11- Fax: 8002379766 Supplier - Surgical Minnes Attachment(s): Contract Number: 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-i 600 208-327-7320 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. MMSi 8000. 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 8000. Contact the Division of Purchasing for information regarding becoming a member. PADD Title: Medical Products and Services PADD Usage Type: Mandatory Use Purchase Order Summary Purchase Order Number: PADD1 9200399 Email: government.sales@mckesson.com I of 3 3/27/2019. 11:54 AM WebProcure: Request And Workflow https://webprocure.perfect.comlWebDriver?ACT=RptPOSuppAct... Public Agency Clause: Yes PADD Administrator: Chelsea Robillard Phone Number: 208-332-1607 Fax Number: 208-327-7320 Email: Chelsea.Robillard@adm.idaho.gov Contractors Primary Contacts: Amanda Johnson Email: Government.Bids@McKesson.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 the 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 Quantity Back Order Unit Unit Price TotalPart Number 1.00 0 EA 250,000.00$250,000.00 Item Description #1 MMCAP MMS1 8000 Medical Products and Service Delivery Date: March 28, 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 4. next to an item’s unit price, that indicates that the price has been discounted. 2of3 3/27/2019, 11:54AM WebProcure: Request And Workflow https://webprocure.perfect.comfWebDriver?ACT=RptPOSuppAct... Signed By: Chelsea Robillard ‘V27/2019. 11:54AM 0ocuSgn Envelope ID: 7CD1 EOAI-082E-49C3-99CB-2E280020A433 Vendor Contract MMSIS000 State of Idaho March 14, 2019 Member-Requested Participation Addendum (MPA) This Addendum (“MPA”) is entered into by State of Idaho (“Member”) and Mckesson Medical-Surgical Inc., located at 9954 Mayland Drive, Suite 4000, Richmond, VA 23233, Mckesson Medical-Surgical Minnesota Supply Inc., located at 12755 Highway 55, R200, Plymouth, MN 55441, and Moore Medical LLC, located at 1690 New Britain Ave., Farmington, CT 06032 (collectively, “Vendor” or “Contractor”) and incorporates the Minnesota Multistate Contracting Alliance for Pharmacy, an agency of the State of Minnesota (“MMCAP”) vendor contract MM518000 (4Vendor Contract”). WHEREAS, MMCAP and Vendor executed the Vendor Contract on March 1,2018. 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, and 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: 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. EFFECTIVE 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: 1. 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. Ill. SCOPE A. ExhIbIt A: Which is attached and incorporated herein, identifies the Vendor Contract and all other previous agreements and amendments to be incorporated into the contractual relationship 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 MMCAP MPA - Page 1 oil DocuSign Envelope ID: 7CDIEOAI.052E49C3-99C8-2E280020M33 Vendor Contract MMSI8000 State of tdaho March 14,2019 the event of any conflict between the terms of the Vendor Contract and Exhibit C of this MPA the terms of gxftlbIt will supersede as between Member and Vendor. MMCAP, the State of Minnesota, nor any otherparty of the Membership (except for Facilities) are bound bythe 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 obtigauons 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 limitation, 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 transferable records or control of electronic transferable records and regardless of whether this MPA is an electronic record or transferable record. Member and 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 FOLLOWSJ MMCAP MPA Page 2 ci? DocuSign Env&ope ID: 7CO1EOAI-0B2E49C3-99C8-2E28CC20A433 Vendor Contract MMSI8000 State of Idaho March 14. 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: MCKESSON MEDICAL-SURGICAL INC. STATE ObhO MCKESSON MEDICAL-SURGICAL MINNESOTA SUPPLY INC. FOR THE MEMER VENDOR: MOORE Signatuv: __________________ By: •Ø Signatu’ — ______________________________ E31E8F347 3e By; John .ampbe Title: ______________________ Date: Title: Vice President Government Sales Date: 3/21/2019 IN AN APPROVAL CAPACITY ONLY: State of Minnesota for MMCAP In accordance with Minn. Stat § 16C.03, subd. 3 SignatureJ7t— /4t44rInted:. ‘Ui 14(41ZI/.c Date: ____________ Minnesota Commissioner of Administration In accordance with Minn. Stat § 16C.05, subd. 2 Printed: ‘1trt11 Date:_ (SIGNATURE PAGEJ MMCAP MPA Page 3 ofT DocuSign Envelope ID: ?CD1EOAI-082E49C3-99C6-2E280020M33 Vendor Contract MMSIS000 State of Idaho March 14,2019 EXHIBIT A 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 MMSI8000 MMCAP MPA Page 4 of? DocuSign Envelope ID: 7COIEOAI-OB2E-49C3.99C6-2E28CC20A433 Vendor Contract MMSI8000 State of Idaho March 14, 2019 EXHIBIT B Approved Facilities Scoiie: 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 of 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 racility (“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, and 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. Al! purchase orders issued by Purchasing Entities within the jurisdiction of this MPA shall include the following price agreement number: MMCAP Vendor Contract #MMS1 8000 and MPA #PADDI 9200399 MMCAP MPA Page 6 of 7 DocuSign Envelope PD: 7CD1EOA1-OB2E-49C3-9OCB-2E28CC20A433 Vendor Contract MMSI8000 State of Idaho March 14,2019 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 MMCAP1 the State of Minnesota, nor the Membership, except for the Member (and Facilities on Exhibit B), are bound by the terms within this Exhibit. Modification of Terms: This has been Intentionally been left blank. Additional Terms: Idaho Fee and Quarterly Usage ReDort. 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: 1 Quarter July 1 — September 30 2 Quarter October 1 — December 31 3’ Quarter: January 1 — March 31 4th Quarter: April 1 — June 30 Reoort of Contract Purchases: 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: purchasingadrnJdaho.gov. 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. Restrictions. 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 Aareement that Do Not ADDIV to Idaho. A. Waive the sovereign immunity of the State of Idaho; MMCAP MPA Page Sot? DocuSign Envetope ID: 7CD1EOAI.082E49C3-99CB-2E28CC20A433 Vendor Contract MMSI8000 State of Idaho March 14,2019 B. 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 87-9213, Idaho Code, and Section 59-1016, Idaho Code). 0. Hold employees or officers of the State of Idaho and of pohtical subdivisions of the State of Idaho personally liable. 4. PrImary Contacts: The primary contact Individuals for this MPA are as follows (or their named successors): Name: Lcd Lumpkin, Government Sales Specialist Address: 9954 Mayland Drive, Suite 4000, Richmond VA 23233 Telephone: (800)328-5111 Fax (800) 237-9766 Email: - MCK.MMCAP@McKesson.com içjting Entity Name: Chelsea Robillard Address: State of Idaho, DMsion of Purchasing 304 N. 8°’ Street, Room 403 Boise, ID 83709 - Telephone: 208-332-1607 Fax: 208-327-7320 Email: Chelsea.Robillard(aadm.idaho.çlov 5. Orders: Any Order placed by a Purchasing Entity for a product andlor 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 Page? ofT DocuSgn Ecv&ope ID: 50393642-6204-400F-A228-7325FF79EAE7 McKesson MedicalSurgica1 Contract M MCAP M MS 18000 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 1. GPO Representation Page 7 2. Federal Health Care Program Exclusion Page 8 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 Fffective Date Page 9 2. Contract Expiration Date Page 9 3. Contract Termination Page 9 4. Vendor’s Duties Page 10 5. Non-Exclusive Agreement Page 10 6. Eligible Purchasers Page 10 7. Separate Agreements Page 10 8. Products and Services Page 1 I 9. Products and Services Pricing Page Il 10. Discounts Page 12 Ii. Risk of Loss, Damage, and Shipping Terms Page 12 12. Compliance Page 12 13. Failure to Supply MMCAP Core Products Page 12 14. Purchase Orders and Payment Page 12 15. Vendor Fees Page 14 16. Authorized Representatives Page 15 17. Notices Page 15 18. Indemnification Page 15 19. Liability Limitations Page 16 20. Audits Page 16 21. Government Data Practices Page 16 22. Intellectual Property and Data Page 17 23. Worker’s CompenSation and Other insurance Page 1 8 24. Publicity and Endorsement Page 20 25. Direct Marketing, Advertising, and Oilers with Participating Facilities Page 20 26. Governing Law, Jurisdiction and Venue Page 20 27. Data Disclosure Page 20 28. Payment to Sub-Contractors (If Applicable) Page 21 29. Minnesota Statute § 1 $1 .59, Discrimination on Account of Race, Creed or Color Prohibited in Contract Page 21 30. 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 Page 21 3 I. Certification of Nondiscrimination (In Accordance with Minn. Stat. § I 6C.053) Page 22 32. Contingency Fees Prohibited Page 22 I of72 DocuSign Envelope ID: 5D39364262O4-4D0FA228-7325FF79EAE/ McKesson Medical-Surgical Contract MMCAP MMS 18000 33. Force Majeure Page 22 34. Severability Page 23 35. Escalation Procedures Page 23 36. Required Licenses, Permits and Registration Page 25 37. DEA License/IIIN Page 25 38. Assignment, Amendments, Waiver, and Entire Contract Page 26 39. Survival of Terms Page 26 40. E-Verif Certification (In Accordance with Mimi. Stat. §16C.075) Page 26 Attachment A: Products and Pricing Page 28 Attachment B: Statement of Work and ‘endor Performance Requirements Page 29 1. Operational Requirements Page 29 1. Vendor Service Area Page 29 2. Required Vendor Personnel Page 29 3. Customer Service to MMCAP Office Page 29 II. Contract Transition, Implementation and Management Page 33 1. MMCAP Contract Transition and implementation Page 33 2. MMCAP Contract Management Page 35 Ill. Key Contract Performance Metrics Page 46 1. Vendor Performance Req uiremerits Page 46 2. Products and Pricing Accessibility Page 46 3. Vendor’s Response to Price Inquiries Page 47 4. Reporting Requirements Page 47 Attachment C: MMCAP Member Participation Agreements Page 52 Attachment D: Service Area Page 53 Attachment E: Vendor’s Contract Implementation and Transition Plan Page 54 Attachnient F: MMCAP Contracted Manufacturers List (If Applicable to this Contract) Page 55 Attachment C: Vendor’s Shipping Policy Page $6 Attachment H: Vendor’s Stock Outage and Backorder Policy Page 57 Attachment 1: Vendor’s Product Return Policy Page 58 Attachment J: Vendor’s Product Recall Procedures/Policies Page 60 Attachment K: Vendor’s Busincss Interruption Plan Page 62 Attachment L: Vendor’s Escalation Procedure Page 66 Attachment M: Vendor’s Discount Structure Page 67 Attachment N: List of Vendor’s Suppliers Page 68 State of Minnesota Affirmative Action Certification Information Page 69 State of Minnesota Resident Vendor Form Page 72 2 of 72 DocuSign Envelope ID: 50393642-6204-4DOF-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract M1 CAP MMS 18000 KEY DEFINI1’JONS Throughout this Contract, the following key terms are defined below. Aiitonatk Product Substitution - 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. contmencemeuut Date - The date the Vendor is folly operational and ready to accept and ship orders from MMCAP Members as applicable to the service area designated in the Contract. confiriuwtioui Priniback/Order confirmation - 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 Private Label (‘ore Products tabs. Drop Shipment) - 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. EDt (‘Ekctrouic Data Intercliauig — Inter-process (computer to computer application) communication of business information, in a standardized electronic form. LJjecth’e Date - ‘[he date the Contract is fully executed. Emergency Product Deliver - 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 sufticient Product to remain operational until the next-scheduled delivery day. Fiscal I’ear - The State of Minnesota’s Fiscal Year period of July 1-June 30 of each calendar year. List Price - Vendor’s internal (non-published) Government List Price which is a price for commercial items that are sold in substantial quantities to various Federal, state and local Government entities. Importantly, Vendor’s Internal Government List Price reflects market an(l Manufacturer price adjustments (increases or decreases) for items sold to both Government and Commercial Customers so the list price provided to MMCAP will reflect changes in the marketplace. Manufacturer: Any supplier, of medical Products (including Medical Equipment), who has a contract to supply the Vendor with Products, purchased by MMCA P Members. Manufacturer Backorder(s) (MBQ - 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 — The following definition, as provided by the Association for the Advancement of Medical Instrumentation, expands on the FDA definition, and clarifies what “Medical Equipment” is in the United States, and in this Agreement. This definition applies to instruments and software as supplied by industry Manufacturers, once such products have been cleared by the FDA. “ifedical devices that have been cleared by the FDA, that are intended to be usedfor diagnostic, therapeutic, or monitoring care, provided to a patient by a health care organization. 3 of 72 DocuSign Envelope ID: 5D393642-6204-4DOF-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCA1 MMS 18000 J\rOlE 11 — Medical equipment includes devices such as monitoring equipment, life support eqinpment, imaging equipment, lahoralomy equipment, ,nechanical eqlnpmnent, transport eqUipment, as 1LeIl US any oilier equipment supporting the care 01(1 patient, whether or not ills in the nnnzediale vicinity ofa patient. In addition, this equipment category includes oilier devices, such as computers, i/ia! support the care ofa patient when in a lieu/liz care organization, bitt are generally not specifically mnanuJiicturedfor use iii a health care organization. As used in this standard, the term “equipment” ref ?IS to medical equipment. NOTE 22 - Embedded software is covered by the medical device Alanufticturer; standalone software is covered by AA’SJ’AAAI!/IEC 80001-1:2010, Application ofrisk managementfor IT networks incorporating medical devices—Part I: Roles, responsibilities, and activities. MMCAP comitract/Agreemnent - 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. MMC4P 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. MMCAP Members - These are eligible purchasers that are deemed by the MMCAP Office, to have completed, and met the requirements of the membership application process. MMCAP Ptirticipatimig Fucilltr(ks,1 - 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. MfILAP Products — Refers to all Products, covered in Attachment A, Products and Pricing. These products cover the entire Product catalog of the awarded Vendor, including Services (referred to in AttachmmienlA as Additional Value 0fThrings), and are identified in As’tachmneiii A, under the following tabs: the Brand Label Core Products tab, the Private Label Core Products tab, the Non—Core Products3 tab, the Equipment Schedule tab, and the Additional Value OJjèrings tab. MMAP Stale Gontacts - 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://www.mmd.ad mi n .state.mn.us/MMCAP/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-Gore Products — Refers to Products not specifically covered in the Brand Label Core Products tab, the Private Label Com’e Products tab, the Equipment Schedule tab, and the Additional 1’alue OJjèrings tab. Through the categories listed in the Non-Gore 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 Allachmnent A, Products and Pricing. Vendor, in Agreement with MMCAP, may amend the iVon-Com’e Product categories, as new additions or deletions take place, in the Vendor’s catalog. I Reference: Takenfivin liie AcsockrlionJor the Advancement ofkdical In.ctrwnentarion (,IAMI). 2 I?efrrence: Takenfrom The Association for the /htranceinent of Medical Instrumentation (AA.tIj. 3 The listed categories in the Nois-Coic l’roducis tab, are intended to cover the Vendor’s most cwrent, published catalog ofProducts, ihich are not tistL’d in the remaining tabs. 4 of 72 DocuSign Envelope ID: 5D393642-62O4-4DOFA228 7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 Non-Recurrmg Prothicts - Products ordered less than once a month by MMCAP Members. Order - Means, any purchase order used to order Products or Services under this Contract. An Order amended, consistent with the requirements 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 Origi,iator - The MMCAP Member, who laces the order with the Vendor. Prodxtct(s,) - Products offered by the Vendor and awarded by MMCAP. 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 SubstituWs - 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. Sen’ices - Any related offering provided by the Vendor related to the Products covered by this Contract, and which can he provided by the Vendor for a fee or at no cost to MMCAP Members. Services may include but are 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 - Jf 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 or disposable coolers with appropriate packaging, to maintain the required temperature range. Special Products requiring refrigeration will be clearly marked as such. Temperature monitors vill 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 contract 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. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 5 of 72 DocuSign Envelope ID: 5D393642-6204-4DOF-A22B-7325FF19EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MINNESOTA MULTISTATE CONTRACTING ALLIANCE FOR PHARMACY This 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 McKesson Medical- Surgical Inc., located at 9954 Mayland Drive, Suite 4000, Richmond, VA 23233, McKesson Medical Surgical Minnesota Supply Inc., located at 8121 10th Avenue North, Golden \‘alley, MN 55427, and Moore Medical, l.LC, located at 1690 New Britain Ave., Fannington, CT 06032 (collectively, “Vendor’ or “Contractor”). ARTICLE 1: RECITALS I. 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 districls. 3. The Vendor wishes to contract with MMCAP to supply Medical Products and Services to the national MMCAP Participating Facilities. ARTICLE 2: JNCORPORATION I. The parties agree that the recitals are true and correct, and are hereby incorporated into this Contract. 2. Attachments, Exhibits, anti Order of Precedent 2.1. ilie following attachments and Exhibits are attached and incorporated into this Contract, In the event olconflict, the fbllowing order of precedence applies. • Attachment A: Products and Pricing a Attachment 1?: Statement of Work • Attachment C: it IMCAP Member Participation Agreements • Attachment D: Service Area • Attachment E: Vendor c Contract hnpiernentation anl Transition Plan • Attachment F: MMAP Contracted AfanuJi:cturem’ List • Attachment G: Vendor ‘s Shipping Policy • Attachment H: Vendor ‘s Stock Outage and Backorder Policy • Attachment 1: Vendor s Product Return Policy • Attachment .1: Vendor ‘s Product Recall Policies/Procedures • Attachment K. Vendor ‘s Business !n!erruption Plan • Attachment L: Vendor’ Escalation Procedure • Altachnzeni it!: Vendor f)Lwount Structure 2.2. Member 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 modifying or “attaching to” MMCAP contracts is authorized. The MPA, which vill 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 6 of 72 DocuSign Envelope ID; 5D393642.6204-400r-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCA P MMS 18000 terms; however, by not agreeing to the MPA Vendor may be precluded from doing business with that Member, 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-contracted pricing. Vendor may not absorb the fee. Vendor must not pay a Member levied fee without first collecting the fee through increased Product costs. The fees vill 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 vill 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: I11f(’AP Member ParticipatIon Agreements. 2.2.1. Should any of the terms set forth in any attachment 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: Mi1C4P 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 Attachment 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-specific 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 State of Minnesota. 2.3.4. 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 imist 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 promptly 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 (cmi 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 100 1.952. MMCAP is an entity authorized to act as a purchasing agent for a group of entities who are furnishing Services for which payment may be made in svhole 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 do and will continue to fully comply with the safe harbor described therein. For the purpose of this clause the State of Minnesota shall not be deemed a parent corporation nor shall any state agency or public entity be deemed a subsidiary. 7 of 72 DocuSign Envelope ID: 5D39364262O4••4DOF-A228.7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 2. Federal Health Care Program Exclusion Vendor represents that it, its directors, officers and employees (1) 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 health care programs as defined in 42 U.S.C. Sec. 1320a-7b(O (the “Federal hcalthcare programs”); (ii) have not been convicted of a criminal offense related to the provision of healthcare 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 enter into a subcontract with any individuals or companies that have been sanctioned, debarred or excluded from participation in any federally funded health care programs, to the extent required by 48 CFR 52.209-6, 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 stiffer as a result of Vendor’s breach of this Section 2. 3. Debarment by State, its Departments, Commissions, Agencies or Political Subdivisions \‘endor 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 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 temm of this Contract, with the exceptIon of the fbllowi rig paragraphs. EXCEPT WITH RESPECT TO PRIVATE LAI3E[. PRODUCTS, VENDOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE MERCIIANTABILITY OF ANY PRODUCTS OR THEiR FITNESS FOR ANY PARTICULAR USE OR PURPOSE MM( AP AND EACH MMCAP PAR1 l( IPA1 1N6 FACI1 ITY SHAI I LOOK TO THF 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 LiSP COMMERCIALLY REASONABLE EFFORTS TO PASS ON, ON A NON- EXCLUSIVE BASIS, FROM ANY MANUFACTURERS OR SUPPLIERS OF PRODUCTS, THE PRODUC I VVARRAN lIES PROViDED BY I HE MANUFAC’I URER OR SUPP1 IER 10 1 HF FX1 FN I SUCH WARRANTIES ARE TRANSFERABLE. MMCAP ANt) EACH MMCAP PARTICIPATING FACILITY ACKNOWLEDGE THAT AT ALL TIMES VENDOR SHALL RE ABLE TO RELY FOR ITS OWN BENEFIT ON SUCH WARRANTIES AND VENDOR SI IALL NOT BE OBLIGATED TO PASS ON SUC H WARRANTIFS IF SUC H AC1 ION SHALL RESULT IN VENDOR BEING UNABI F 10 RELY ON THE WARRANTIES FOR ITS OWN BENEFIT. VENDOR REPRESENTS AND WARRANTS TO CUSTOMER THAT PRIVATE LABEL PRODUCTS SHALL BE FREF. FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF 8 of 72 DocuSign Envelope ID: 5D393642-6204-400F-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 NINETY (90) CALENDAR DAYS FROM THE DATE OF SHIPMENT. VENDOR’S OBLIGATION UNDER TFIIS WARRANTY IS LIMITED TO TIlE REPAIR OR REPLACEMENT OF TIlE AFFECTED PRODUCT, AT VENDOR’S OPTION. THIS WARRANTY WILL NOT APPLY (1) IF MMCAP OR MMCAP PARTICIPATING MEMBER MISUSES TIlE PRiVATE LABEL PRODUCT, (2) ALTERS OR MODiFIES THE PRIVATE LABEL PRODUCT IN ANY WAY, OR (3) RESELLS THE PRIVATE LABEL PRODUCT OR DOES NOT OTHERWISE USE OR ADMINISTER THE PRIVATE LABEL PRODUCT THROUGH [[S EMPLOYEES OR AUTHORIZED AGENTS. NEITHER MMCAP NOR AN MMCAP PARTICIPATING FACILITY SHALL HOLD VENDOR LJABI.F. FOR ANY DEFECT iN PRODUCTS OR SERVICES. REGARDLESS OF KIND. CUSTOMER AND A FACILITY AGREE TO FILE SOLELY WITH MANUFACTURER OF THE 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 TI-IF USE, SALE, DISTRIBUTION, OR POSSESSION OF PRODUCTS OR SERVICES. ARTICLE 4: CONTRACT TERMS AND CONDITIONS 1. Contract Effective Date March 1, 2018 or the date the Slate obtains all required signatures under Minnesota Statutes Section 16C.05, subdivision 2, whichever is later. The Vendor must not begin work tinder this contract, nor make its pricing, Products, Services, or any benefit available until this contract is fully executed and the Vendor has been notified by the State’s Authorized Representative to begin the work. Vendor viI1 offer fixed pricing for Core Products in Attachment A for one (1) year with annual agreed-upon price adjustments. The Commencement Date will be ninety (90) days after the Contract Effective Date, unless an earlier mutually agreeable Commencement Date is determined. Moore Medical, LLC, a McKesson Medical-Surgical Company, tinder the authority of McKesson Medical- Surgical’s signature, will have a Commencement Date of January 1, 2019, for all Products and Services corresponding to the Moore Medical, LLC’s portion of this Agreement. 2. Contract Expiration Date March 1, 2020 the Contract may be extended for up to three (3) additional one (1) year periods upon 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 5y MMCAP Without Cause Either party may cancel this Contract at any time (luring 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, 9 of 72 DocuSign Envelope ID: 5D393642-6204-4DOF-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 determined on a pro rata basis, for Services performed to the extent that funds are available. The State will not be assessed any penalty 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, will provide Products and Services, in accordance with the terms and conditions of this Contract, and as set forth in Attachment B: Statement of Work, 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. 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 www.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 access to Contract pricing, once Vendor has received from MMCAP the new Member notification and confirmed the new MMCAP Membership ID. 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 an MMCAP Participating Facility of MMCAP, Vendor agrees entity will no longer access contract pricing related to the MMCAP 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 purchasing arrangement set forth in this Contract. MMCAP reserves the right to add 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 vw.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 will 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. Vendor is not prohibited from responding to a request for proposals issued by a Participating Facility that may include some Products covered by this Agreement. 10 of 72 DocuSign Envelope ID: 50393642-6204-4DOF-A228-7325FF79FAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 8. Products and Services The Vendor shall provide Products and Services to MMCAP Participating Facilities listed on Auachment 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 Auachment 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 effbrts 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. The sample Agreements included under the “Additional Value Offerings” tab at Attachment A (the “templates”) are samples provided for informational purposes only and are not meant to be final versions. Other terms and conditions may apply or be separately negotiated depending on the service requested and MMCAP Member type or size, among other possible factors. Templates also may be periodically updated or revised. The templates attached hereto are confidential and proprietary and neither Mtv1CAP nor any MMCAP Member may save, copy, download or forward a template to any party with the express written consent of Vendor. All Products acquired by MMCAP under this Contract, are to be purchased for medical use only, and all uses shalT 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, ordinances, rules and regulations, including registration requirements of the Office of the applicable Secretary 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 oIMMCAP Participating Facilities’ purchases and competitive pricing data supplied by MM CAP to Vendor. Subject to Vendor’s confidentiality obligations with other GPOs, the pricing reviews will compare the MMCAP Contract Products and Services pricing to other (3POs or government-owned buying groups whose Members are a similar class of trade and size to MMCAP’s Participating Facilities. 9.2. Vendor’s Published Catalog Price Vendor shall provide a percentage discount tbr 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 from the Vendor’s catalog price of the Product within a specific category, and be submitted on the Non-Core P,’oclucts tab of Attachment 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 01) Attachineni 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 39.2, 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. 11 of72 DocuSign Envelope tD: 50393642-6204-400F-A228-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 9.4. No Additional Fees Unless otherwise stated in this Contract no fee, percentage, or other price may be added to the Products purchased under this Contract unless the fee, percentage, or piice is defined, and a formal amendment to the Contract is executed by both parties reflecting the agreed upon fee, percentage, or price. 10. Discounts If applicable to this Contract, the parties understand that the pricing ftr 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 42 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 MMCAP Participating Facility, Vendor will 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 Facilities(as “Purchasers”) shall disclose the discounts at the invoice level, 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 (lock 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 forth 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 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 tJnless 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 Minim urn 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 under 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. It will be the responsibility of MMCAP Participating Facilities to determine an “authorized individual” who is approved to make 12 of 72 DocuSign Envelope ID: 5D393642-6204-400F-A22R-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 purchases and submit orders Lander this Contract. Vendor will not be liable for determining “authorized individuals” making purchases on behalf of MMCAP Participating Facility under this Contract. MMCAP Participating Facilities may use their own forms fr 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 form or other form provided by an MMCAP Member, any orders placed by MMCAP Members with Vendor vill he priced and offered by Vendor per the terms and conditions of this Contract only, and no oilier terms and conditions provided by the Member shall apply to such orders. ‘[he purchase order number will appear on the packing list and invoice when it is applied during the order entry process. 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 form, EDJ, internet e-commerce, facsimile, 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 under the terms of this Contract. Vendor shall rely on the MMCAP membership Listing electronic file which will be sent to Vendor as such list is updated daily, during the term of this Contract. 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 he 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 ftmnding source; or • 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. Termination 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 he 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 13 of 72 DocuSgn Envetope ID: 5D393642.6204-4DOF-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 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 vil1 be responsible fbr 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 for all Products shipped. Vendor vill accept payment of purchase 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 determined by the federal agency or federal program administering the payments. Vendor shall comply with all applicable federal requirements imposed on these finds 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 be 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 .952j) The 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 to MMCAI within ten (10) business 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. 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. Vendor’s payment to the MMCAP Office of the three percent (3%) Administrative Fee will not include the increased Products costs associated with Member levied fees. Vendor will pay an Administrative Fee only on those Services that incur fees. Vendor shall not pay Administrative fees on Products purchased from Vendor, where (i) Vendor has an exclusive Agreement with a Supplier and (ii) Vendor retains only a management fee for each sale. The Suppliers with this Product offering are listed in Attachment N, List of Vendor *s Suppliers. Vendor reserves the right to add/update the supplier or supplier offering as necessary upon mutual agreement with MIvICAP. The parties shall comply with the requirements of 42 U.S.C. §1320a-7b(b)(3)(A) and the “Safe Harbor” regulations regarding discounts or other reductions in price set Ibrth at 42 C.F.R. § 1001 .952(h) and GPOs set forth at 42 C.F.R. §1001.952(j). In this regard, the parties acknowledge that Vendor will 14 of 72 DocuSign Env&ope ID: 5D393642-6204-4DOF-A22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCA1 MMS 18000 satisfy any and 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. • Upon notification from the MMCAP Member that they wish to purchase from Vendor via the MMCAP Contract, Vendor shall have ten (10) business days from the date of notice to qualify said new Facility’s status and eligibility for inclusion of the purchases by said Facility in the calculation of the 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. 16. Authorized Representatives MMCAP’s Authorized Representative is Alan Dahlgren, MMCAP Managing Director, or his/her successor, and has the responsibility to monitor the Vendor’s performance. The Vendor’s Authorized Representative is John Campbell, Vice President of Government Sales, or his/her successor. If the Vendor’s Authorized Representative changes at any time during this Contract, the Vendor must promptly notify MMCAP in writing via e-mail addressed to Emilio 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 upon receipt and shall be sent by any of the following methods (i) facsimile or e—mail with return facsimile or e-mail acknowledging receipt; (ii) United States Postal Service certified or registered mail with 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: MMCAP Healthcare Products & Services Program Coordinator 50 Sherburne Avenue, Suite 112 St. Paul, MN 55155 Email: MMCAPContracts@state.rnn.us Fax: 651.297.3996 To the Vendor: McKesson Medical-Surgical Minnesota Supply Inc., McKesson Medical-Surgical Inc. Amanda Johnson 9954 Mayland Drive, Suite 4000 lienrico, VA 23233 Email: Government.Bids@McKesson.com 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. In the event that a claim or cause of action arises in part out of the action or inaction of 15 of 72 DocuSign Envelope ID: 5D39364262O4-4DOFA22B-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 the indemnified party, Vendor’s obligation to indemnify the State shall be proportionate to the exten.t (he claim or cause olaction arose from the acts of the Vendor, Vendors agents, or Vendor’s employees. This clause will not be construed to bar any legal remedies the Vendor ma’ have for the State’s failure to fulfill its obligation tinder this Contract. Pursuant to the Minnesota Constitution Article Xl Section 1, MMCAP cannot indemnify the Vendor. 19. Liability Limitations IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY OThER PARTY FOR ANY SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES INCURRED BY THE OTHER PARTY, HOWEVER CAUSED ON ANY THEORY OF liABILITY, AND WHETHER OR NOT THEY 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 SHALL BE CONSIDERED DIRECT DAMAGES. 19.1. Warranty Vendor makes no representation or warranty of any kind, express or implied, as to the merchantability of 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. NC) 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 Manufliciurers 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 lbr its own benefit. With the exception of Private Label Products, neither MMCAP nor any MMCAP participating fiicihity shall hold Vendor liable for any defect in Products or Services, regardless of kind. MMCAI and MMCAP participating facilities agree to tile solely with Manutlicturer 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 and/or 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. 21. Govern m eu t Data Practices The Vendor and MMCAP must comply with the Minnesota Government Data Practices Act, Mimi. Stat. Ch. 13 as it applies to all data provided by MMCAP under this contract, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor tinder this contract. The civil remedies of Minn. Stat. § 13.08 apply to the release of the data governed by the Minnesota Government Practices Act, Minn. Stat. Ch. 13. by either the Vendor or MMCAP. 16 of 72 DocuSign Envelope ID: 5D393642-6204-4DOF.A22B-7325FF/9EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 If the Vendor receives a request to release the data referred to in this clause, the Vendor must immediately notify MMCAP. MMCAI’ will give the Vendor instructions 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 anti employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation by Vendor of’any prevision 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, DEA/HIN 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, noniransferable, fully paid license, for the terni of this Contract, to (i) release state specitic 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 efforts 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 GPOs of which the MMCAP Participating Facility is also a Member, provided such data will not include MMCA P-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 Minn. Stat. Ch. 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 be provided to third party aggregators. Vendor owns all rights, title, and interest to any aggregated data identifiable as not arising from this Contract and any other intellectual property 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 Indemnification 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 third 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 will pay costs and damages finally awarded against a Customer Indemnified Party as a result thereof; provided, that a Customer Indemnified Party (1) notifies Vendor of the claim within ten (10) business days, (ii) 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 viIl have no obligations under this Seciwn 22.2 with respect to claims arising from: (1) modifications to Private Label Products that were not performed by Vendor; (2) misuse of the Private 17 of 72 DocuSrgn Envelope ID; 50393642 6204-400F A228 7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 Label 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 hut for the particular combination. THE FOREGOING ARE VENDOR’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMF,R INDEMNIFIED PARFIFS’ SOLE AND EXCLUSIVE REMEDIES, WITI I RESPECT TO OR ARISING OUT OF THE INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO PRIVATE LABEL PRODUCTS. (ii) Injunctions ha Customer Indemnified Party’s use of any PrIvate Label Products delivered under this Contract is, or in Vendors 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: (I) 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 Indernnilìed Party the purchase price of the affected Private Label Product net any discounts, rebates or other adjustments. 23. Statutory Workers’ Conipensation and Other Insurance Vendor shall comply with all insurance requirements specified in the 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 shall be in compliance with Minn. Stat. § I 76.181, 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 tinder 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 provide certificates of insurance, and to maintain the following insurance policies: 23.1. Statutory Workers’ Compensation Insurance Except as provided below, Vendor must provide Statutory Workers’ Compensation insurance for all its employees including Coverage B, Employer’s Liability. Insurance limits are as follows: $500,000 — Bodily lnj ury by Disease per employee $500,000 - Bodily Injury by Disease aggregate $500,000 — 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. 18 of 72 DocuSlgn Envelope ID: 5D393642-6204-400r-A228-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 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 commercial general liability insurance with coverage for bodily injury, including sickness or disease, death, as well as propelly damage, which may arise from operations under the Contract. Insurance limits are as follows: $5,000,000 — per occurrence $5,000,000 — annual aggregate $5,000,000 — amiual aggregate — Products/Completed Operations The following coverages shall be included: Premises and Operations Bodily Injury and Property Damage Personal and Advertising lnjuiy Contractual Liability 23.3. Business Automobile Liability Insurance Vendor is required to maintain insurance as follows: S2,000,000 — each accident 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 Errors and Omissions Liability Insurance This policy will provide coverage for negligent act, error, or omtsston related to Vendor’s professional Services required under the contract. Vendor is required to carry the following limits: $2,000,000 — per claim or event $2,000,000 — annual aggregate Any deductible will be the sole responsibility of the Vendor. The retroactive or prior acts date of such coverage shall not be after the Effective Date of this Contract and Vendor shall maintain such insurance for a period of three (3) years, following completion of the work. If such insurance is discontinued, extended reporting period coverage for a period of three (3) years must he obtained by Vendor to fulfill this requirement. 23.5. Additional Insurance Conditions • Vendor’s Commercial General Liability and Business 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 endeavor to 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 19 of 72 DocuSign Envelope ID: 5D393642-6204--400F-A228-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 • 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. • Vendor and its affiliates’ use of self-insurance and captive insurance, is deemed to satisfy all insurance requirements set forth under this enlire Agreement. 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. 23.7. The Vendor is required to submit Certificates of Insurance acceptable to MMCAP as evidence of insurance coverage requirements prior to commencing work tinder the contract. 24. Pubticiti’ 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 vritten 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 orjointly with others, or any subcontractors, with respect to the program, publications, or Services provided resulting from this Coniract. 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 N4MCAP Office. 26. Governing Law, Jurisdiction and Venue Minnesota law, without regard to its choice—of—law 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. 1’o the extent this Contract entails delivery or performance of Services, such Services will be deemed ‘goods” within the meaning of the UCC except when to do so is unreasonable. 27. Data Disclosure Under Minnesota Statute § 270C.65, Subdivision 3 and other applicable law, the Vendor consents to disclosure of its federal employer tax identification number, and/or Minnesota tax identification number, already provided 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 file state tax returns, pay delinquent state tax liabilities, if any, or pay other state liabilities. 20 of 72 DocuSign Envelope ID: 5D393642-6204-4DOr-A228-7325FF79EAE7 McKesson Medical-Surgical Contract MMCAP MMS 18000 28. Payment to Sub-Contractors (If Applicable) As required by Mirmesota Statute § 16A.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-hall 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). 29. Minnesota Statute § 181.59, Discrimination on Account of Race, Creed or Color Prohibited in Contract 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, towi, 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 any manner, discriminate against, or intimidate, or prevent the employment of any person or persons identified in clause (I) 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 (his contract may be canceled or terminated by the state, county, city, town, school board, or any other person authorized to grant the contracts for employment., and all money due, or to become due tinder the contract, may be forfeited for a second or any subsequent violation of the terms or conditions of this contract. 30. 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. 30.1. 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 the state where it has its principle place of business, then the Vendor must comply with the requirements of Minn, Stat. § 363A.36 and Miun. R. Parts 5000.3400-5000.3600. A Vendor covered by Minn. Stat. § 363A.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 affirmative action requirements. 30.2. Minn. Stat. §363A.36 Minn. Stat. § 363A.36 requires the Vendor to have an affirmative 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 ofa certificate of compliance and contract consequences in that event. A contract awarded without a certificate of compliance may be voided. 30.3. Minn. R. 5000.3400-5000.3600 a. General Minn. R. 5000.3400-5000.3600 implement Minn. Stat. § 363A.36. These rules include, hut are 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 affinnative 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. 21 of 72 OocuSin Envelope ID: 5D393642-62o4-400F-A228-7325rr79rAr7 McKesson Medical-Surgical Contract M MCAP M MS 18000 b. I)isabled Vorkers 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 Vendor’s noncompliance with the requirements of this clause, actions for noncompliance may he taken in accordance with Minnesota Statutes Section 363A.36, and the rules and relevant orders of the Minnesota Department of Human 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 ofHunman 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. The 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 ternis of Minnesota Statutes Section 363A.36, of the Minnesota Human Rig