08-Appendix B - Roswell Park Terms and Conditions.docx

APPENDIX B

ROSWELL PARK STANDARD TERMS AND CONDITIONS

This Appendix B is attached to and made a part of the contract, quote, terms and conditions, purchase order, or other ordering document, including all exhibits, appendices, and other attachments thereto (collectively, the “Agreement”) between Roswell Park Cancer Institute Corporation d/b/a Roswell Park Comprehensive Cancer Center (“Roswell Park”) and the vendor identified in the Agreement (“Vendor”). Capitalized terms used but not defined in this Appendix B shall have the meanings assigned to them in the Agreement.

1. DEFINITIONS.

1.1 “System” means the Vendor’s contract lifecycle management software, platform, application, tools, modules, and related components (including any associated Documentation, updates, upgrades, enhancements, APIs, integrations, data migration tools, reporting capabilities, and professional services) provided to Roswell Park under the Agreement, regardless of the deployment model (including, without limitation, software-as-a-service (SaaS), cloud-hosted, on-premises, hybrid, or any combination thereof). The specific configuration, hosting environment, and delivery method shall be as described in the Agreement.

1.2 “Documentation” means the then-current user manuals, technical specifications, help files, release notes, and other materials provided by Vendor describing the functionality, use, and operation of the System.

1.3 “Services” means the implementation, configuration, training, support, maintenance, hosting (if applicable), data migration, integration, and other professional or managed services related to the System as set forth in the Agreement.

2. ASSIGNMENT. Vendor may not assign, transfer, convey, sublet, or otherwise dispose of the Agreement, or Vendor’s right, title, or interest therein, without the prior written consent of Roswell Park. Any attempt by Vendor to assign the Agreement, or Vendor’s right, title, or interest therein, without Roswell Park’s prior written consent, shall be null and void. Notwithstanding the foregoing, such prior written consent to assignment may be waived at the discretion of Roswell Park where the assignment is due to a reorganization, merger, or consolidation of Vendor. Roswell Park reserves the right to require that any proposed assignee demonstrate its financial viability and its ability to fulfill its obligations under the Agreement. Vendor may, however, assign its right to receive payments without Roswell Park’s prior written consent unless the Agreement concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. The Agreement shall be binding upon and inure to the benefit of the parties and their permitted assigns.

3. COMPENSATION.

3.1 Expense Reimbursement. To the extent that the Agreement provides for reimbursement of travel expenses, such reimbursement shall be in accordance with this Section. Only those expenses that are reasonably and directly incurred in Vendor’s performance of the Agreement shall be considered for reimbursement under this Section. Travel events must be approved in advance by Roswell Park. Reimbursement for lodging, meals and incidental expenses shall not exceed the per diem federal rates set by the General Services Administration for Buffalo, New York. Reimbursement for air travel shall be limited to coach air fare and shall not include charges for seat upgrades or seat preferences. Expense reimbursement for personal vehicle use shall be at then current IRS mileage rates. Original receipts (or legible copies thereof) for travel-related expenses must be submitted to Roswell Park within thirty (30) days after the last day of the travel event. Roswell Park is not obligated to reimburse Vendor for expenses that: (i) are not documented in accordance with this Section; (ii) exceed any specific amount or limit set forth in the Agreement; or (iii) are submitted for reimbursement more than sixty (60) days after the date they were incurred. Comment by Hineman, Kathryn: Drafting Note: Remove if no reimbursable expenses are contemplated. Where travel is deemed to be included in the fee, add the following sentence (tailor as necessary) to the end of 3.1:

"Vendor shall not be entitled to any travel or other expense reimbursement under the Agreement."

3.2 Invoicing. Invoices shall be submitted in accordance with the instructions set forth in the Roswell Park-issued purchase order (“PO”) and shall reference the PO by number and date. Notwithstanding any language to the contrary, terms and conditions stated or referenced in Vendor’s invoices are null and void. Invoices shall be accompanied by any MWBE and/or EEO reporting required under Appendix A-1 (if applicable).

3.3 Payment. Payment shall be remitted to Vendor within thirty (30) days following receipt of an undisputed invoice. Interest charges for late payment shall be calculated in accordance with Section 2880 of the New York Public Authorities Law (“PAL”) and Roswell Park’s Prompt Payment Policy adopted pursuant thereto. Roswell Park retains all of its common law, equitable, and statutory rights of set-off, including the option to withhold, for the purposes of set-off, any monies due to Vendor under the Agreement up to any amounts owed to Roswell Park by Vendor that are past due.

3.4 Tax Exemption. Vendor acknowledges that Roswell Park is a tax-exempt governmental entity and agrees that Vendor’s invoices shall not include any state or federal use, sales, excise, or similar taxes or duties. Roswell Park shall provide documentation of its tax-exempt status upon Vendor’s request.

3.5 Price Protection. Unless otherwise expressly agreed to in the Agreement, the fees, costs, and expenses set forth in the Agreement shall be fixed for the initial term of the Agreement. Thereafter, Vendor shall be entitled to increase the fees, costs, and expenses set forth in the Agreement one (1) time per calendar year upon sixty (60) days’ prior written notice to Roswell Park by an amount not to exceed the lesser of: (i) two percent (2%); or (ii) the percentage rate of increase for the immediately preceding twelve (12)-month period in the Consumer Price Index, All Urban Consumers, United States, All Items (1982 - 1984 = 100), as published by the Bureau of Labor Statistics of the United States Department of Labor or, if such index is not available, such other index as the parties may agree most closely resembles such index.

4. USE OF SUBCONTRACTORS. To the extent that Vendor utilizes any subcontractor, consultant, or agent to perform any of Vendor’s obligations under the Agreement, whether a third party or an affiliate of Vendor (each a “Subcontractor”), Vendor shall ensure that each Subcontractor complies with all terms and conditions of the Agreement as they apply to Vendor. Use of Subcontractors shall not relieve Vendor of any liability or obligation under the Agreement, and Vendor shall be fully liable and responsible for the performance, non-performance or any other acts or omissions of its Subcontractors.

5. INDEMNIFICATION.

5.1 Vendor Indemnification. Vendor, on behalf of itself, its Subcontractors, and their respective employees and agents, shall indemnify, defend, and hold harmless Roswell Park, its affiliates, and their respective officers, directors, employees, agents, and representatives (collectively, “Roswell Park Indemnitees”), from and against any damages, losses, expenses, costs, obligations and liabilities (including reasonable attorneys’ fees and costs) (“Losses”), to the extent arising out of: (i) negligence, fraud, or willful misconduct of Vendor; (ii) property damage, bodily injury, or death caused by Vendor; (iii) violation of Applicable Law by Vendor in its performance of the Agreement; (iv) claims alleging that Vendor’s products or services infringe upon infringe upon or misappropriate any third party’s intellectual property rights. Notwithstanding the foregoing, Vendor shall have no obligation to indemnify Roswell Park Indemnitees to the extent a Loss arises out of Roswell Park’s negligence, willful misconduct, or fraud.

5.2 Roswell Park Indemnification. Subject to the availability of lawful appropriations, and consistent with the Section 8 of the New York State Court of Claims Act, Roswell Park shall hold Vendor harmless from, and indemnify Vendor for, any final judgment of a court of competent jurisdiction only to the extent attributable to the negligence of Roswell Park or of its officers or employees when acting within the course and scope of their employment and within the scope of the Agreement.

6. INSURANCE. Vendor shall maintain at its expense, and shall ensure that any Subcontractors maintain at their expense, the minimum insurance coverages described below with insurers licensed to do business in New York State and having an A.M. Best rating of A- or greater.

6.1 Commercial General Liability Insurance. Commercial general liability insurance written on an occurrence basis, including bodily injury, property damage, personal injury, products and completed operations, and contractual liability in amounts not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.

6.2 Workers’ Compensation. If Vendor personnel will be present on Roswell Park premises, statutory workers’ compensation insurance in accordance with all state and local statutory requirements on an occurrence basis.

6.3 Umbrella/Excess Liability Insurance. Umbrella/Excess liability insurance written on an occurrence basis, providing coverage in excess of Vendor’s underlying Commercial General Liability, Employer’s Liability, and Commercial Automobile Liability insurance, on terms at least as broad as the underlying coverage, with limits of not less than $10,000,000 per occurrence and in the annual aggregate. The insurance requirements of this Section can be provided by any combination of Vendor’s primary and excess liability policies.

6.4 Cyber Liability Insurance. Cyber liability insurance for network security and privacy risks, with limits of at least $5,000,000 per occurrence and $5,000,000 aggregate, including coverage for: (i) any unlawful or unauthorized use, disclosure, creation, receipt, hosting, storage/maintenance, transmittal, or other access of or to Roswell Park Data (as defined in Appendix C to the Agreement); (ii) financial loss resulting or arising from acts, errors, or omissions in rendering technology and professional services; (iii) first and third party business interruption loss resulting from network security failure; (iv) privacy and security liability, covering liabilities for the violation or infringement of any right of privacy, and coverage for investigations, remediations, notifications, fraud prevention, and other mitigation and remediation activities related thereto; and (v) damages and remediation caused by the introduction of a Disabling Device.

6.5 Policy Requirements. Vendor’s insurance shall apply on a primary and non-contributory basis. Vendor shall name Roswell Park as an additional insured on its Commercial General Liability, and Umbrella/Excess Liability policies, as applicable, and except as otherwise prohibited by law, Vendor and its insurers hereby waive all rights of subrogation against Roswell Park for recovery of damages to the extent such damages are covered by Vendor’s insurance. The parties agree that the limits of Vendor’s insurance shall not be construed as a limitation on Vendor’s liability, including with respect to Vendor’s indemnification obligations under the Agreement.

6.6 Proof of Coverage. Vendor, for itself and any Subcontractors, will provide Roswell Park with certificates of insurance evidencing required coverage upon request by Roswell Park. Neither Vendor’s failure to provide, nor Roswell Park’s failure to request or obtain, proof of coverage shall act as a waiver of any required coverage. Roswell Park reserves the right to require complete, certified copies of all required insurance policies, including endorsements required under this Section, at any time. Vendor shall provide Roswell Park with at least thirty (30) days’ written notice prior to any cancellation, non-renewal, or material change to any policy.

7. CONFIDENTIALITY.

7.1 Confidential Information Defined. “Confidential Information” means all non-public, trade secret, confidential, and/or proprietary information that is disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”), or that the Receiving Party otherwise has access to in connection with the Agreement, which is marked as confidential or of the nature that a reasonable person knowledgeable in the field would recognize it to be confidential, including, but not limited to, information regarding the Disclosing Party’s methods of operation, strategic planning, budgets and finances, network and computer systems, marketing plans and strategies, patients and customers, inventions and other intellectual property, reimbursement rates and methods, research, development, or business activities and strategies.

7.2 Exceptions. Confidential Information shall not include information that: (i) is or becomes available to the general public through no fault of the Receiving Party; (ii) is already in the possession of Receiving Party prior to disclosure by Disclosing Party and was not subject to an obligation of confidentiality owed to Disclosing Party at the time such information came into the possession of Receiving Party; (iii) becomes available to Receiving Party on a non-confidential basis from a third party who has a right to make such disclosure and is not in violation of confidentiality obligations owed to Disclosing Party; or (iv) is independently developed by Receiving Party without use of, access to, or reference to Confidential Information.

7.3 Use and Disclosure. Receiving Party shall hold in confidence and protect all Confidential Information to the same degree of care that it uses to protect its own confidential information, but in all events shall use at least a reasonable degree of care no less restrictive than the requirements set forth in this Section. Receiving Party may use Confidential Information solely as necessary and required to perform its required duties under the Agreement and may only disclose Confidential Information to: (i) employees of Receiving Party who have a need to know such Confidential Information solely to perform their required duties under the Agreement, provided that Receiving Party shall take appropriate measures by instruction or written agreement prior to disclosure of Confidential Information to its employees to prevent unauthorized uses or disclosures by such individuals; and (ii) Subcontractors of Receiving Party who have a need to know such Confidential Information, provided that each Subcontractor is subject to contractual obl

7.4 Compelled Disclosures. Receiving Party may disclose Confidential Information to the extent required by law, court, or other governmental order, rule, or regulation, provided that Receiving Party: (i) gives Roswell Park prompt written notice of the compelled disclosure (to the extent legally permitted); (ii) gives Roswell Park reasonable assistance, if Roswell Park wishes to contest the disclosure; and (iii) only discloses the portions of the applicable Confidential Information that are necessary in order to comply with such request.

7.5 Ownership. Confidential Information (including all rights therein and related thereto) is, and shall remain, the sole property of Roswell Park. The disclosure of Confidential Information by Roswell Park shall not be construed as granting any license to Vendor to the Confidential Information, including to any intellectual or proprietary rights therein or associated therewith.

7.6 Return or Destruction. At any time, upon Roswell Park’s written request, Vendor shall, at the sole discretion of Roswell Park, promptly return or destroy all Confidential Information that Vendor maintains or possess in any form. In the event that Vendor determines that returning or destroying all or a portion of the Confidential Information is infeasible, Vendor shall provide to Roswell Park notification specifying the circumstances and conditions that make return or destruction infeasible, and upon mutual agreement of the parties, Vendor shall continue to extend the protections of this Section to such Confidential Information. Vendor shall maintain documented evidence of all Confidential Information destruction which shall be provided to Roswell Park upon request. Notwithstanding the foregoing, Receiving Party shall not be required to return or destroy Confidential Information that is automatically stored in its routine archiving and back-up procedures provided that Receiving Party protects the Confidential Information in acc

7.7 Irreparable Harm. The parties acknowledge that the disclosure or use of Confidential Information contrary to the provisions of this Section is likely to cause irreparable harm to Roswell Park, for which damages at law may not be an adequate remedy, and the parties agree that Roswell Park shall be entitled to seek injunctive relief to enjoin the breach of any provisions of this Section by Vendor or to specifically enforce any of Vendor’s obligations under this Section, in addition to any and all other remedies available to Roswell Park at law or in equity.

7.8 Exclusion from Limitation of Liability. Notwithstanding any language in the Agreement to the contrary, damages resulting from a breach of this Section shall not be subject to any limitation of liability or disclaimer of damages set forth in the Agreement.

8. TERMINATION. In addition to any termination rights set forth in the Agreement:

8.1 Termination for Cause. In addition to any termination right set forth in the Agreement, either party may terminate the Agreement in the event the other party breaches the Agreement and fails to cure such breach within thirty (30) days after its receipt of notice setting forth the nature of the breach.

8.2 Termination for Convenience. Roswell Park may terminate the Agreement upon thirty (30) days’ prior written notice to Vendor.

8.3 Effects of Termination. Upon termination: (i) Roswell Park shall pay Vendor in accordance with the terms of the Agreement for services or products accepted by Roswell Park through the termination date; and (ii) Vendor shall provide a pro-rated refund of any prepaid fees for Services not performed or Products not delivered prior to the termination date.

8.4 Survival. Provisions of the Agreement (including, for avoidance of doubt, all Appendices) that remain to be performed, or by their nature are intended to be applicable, following any expiration or termination of the Agreement, shall survive such expiration/termination, including specifically sections pertaining to confidentiality, liability, and indemnification.

9. ACCEPTANCE.

9.1 Acceptance Period. Roswell Park shall have a reasonable period of time (the “Acceptance Period”) to inspect, test, and/or verify that the products are free from material defects or errors and otherwise conform to the terms of the Agreement, the user manual, published specifications, or other user documentation (collectively, the “Documentation”). Unless a longer period is stated in the Agreement, the Acceptance Period shall be at thirty (30) calendar days from the date of first use in a live production environment.

9.2 Rejection of Products. If the product has a material defect or error, or the product, or installation thereof by Vendor, otherwise does not conform to the Documentation, Roswell Park shall, prior to the end of the Acceptance Period, notify Vendor in writing (by mail or email) of all known non-conformities with reasonable specificity. Upon receipt of such notice, and notwithstanding anything to the contrary set forth in Vendor’s return policies, Vendor shall promptly: (i) use commercially reasonable efforts to remediate/resolve such defects, errors and/or non-conformities, and promptly resubmit such product for Roswell Park’s acceptance, or (ii) if remediation is not possible, promptly issue Roswell Park a full refund of all fees paid for the product and any related Services.

9.3 Acceptance Date. Unless Roswell Park provides notice of rejection during the Acceptance Period, Roswell Park shall be deemed to have accepted the Products as of the end of the Acceptance Period. “Acceptance” shall mean the date on which a Product is accepted or deemed accepted.

10. WARRANTIES. Vendor represents, warrants, and covenants to Roswell Park that, during the Term of the Agreement (unless another warranty period is otherwise noted):

10.1 Performance and Conformity. The System and Services will perform materially in accordance with the Documentation and the Agreement, and will conform in all material respects to the requirements and functionality described therein.

10.4 Intellectual Property. To Vendor’s knowledge after reasonable due diligence, there is no claim pending against Vendor or a customer of Vendor alleging that a Product or any component thereof infringes any third party’s patent, copyright, trademark, trade secret or other intellectual property or proprietary right. he System and Services do not and will not infringe, misappropriate, or violate any third party’s intellectual property rights.

10.5 Professional Services. Any professional services (e.g., implementation, configuration, training) will be performed in a timely, efficient, and professional manner consistent with generally accepted industry standards and practices and in compliance with the Documentation and the Agreement. If any professional services are defective or otherwise do not conform to the Agreement or Documentation, Roswell Park shall notify Vendor in writing (by mail or email) within ninety (90) days from completion. Upon receipt of such notice, Vendor shall promptly: (a) reperform the Services such that the Services comply with the Agreement and the Documentation; or (b) if Vendor is unable to promptly reperform, Vendor shall issue Roswell Park a refund of fees paid for the Services and any related fees for System components that are impacted by the non-conforming Services.

11. DATA OWNERSHIP. Roswell Park’s data, records, lists, and other information that Vendor receives, has access to, or that is transmitted to, by, or through any Vendor system, shall: (i) be and remain the sole and exclusive property of Roswell Park; (ii) be used by Vendor to the minimum extent necessary to fulfill its obligations under the Agreement; and (iii) except as specifically provided for in the Agreement, not be: (a) used for Vendor’s own business or commercial purposes; or (b) disclosed, sold, assigned, leased, or otherwise disposed of to any third party by Vendor.

12. THIRD PARTY LICENSE TERMS. To the extent that a product contains third party components or software (“Third Party Products”), and Roswell Park’s use of such Product is subject to third party end user license or usage terms (“Third Party Terms”), Vendor has disclosed such Third Party Terms to Roswell Park in writing, and will promptly disclose Third Party Terms that become effective after the effective date of the Agreement.

13. SEPARATE SOFTWARE TERMS. With the exception of Third Party Terms that are properly disclosed to Roswell Park, the Agreement supersedes and replaces any click-wrap, click-through, shrink-wrap, website terms or other terms, conditions or agreements (or other similar or standard form agreements) that Roswell Park has or may be required to accept as a part of downloading, accessing, installing or using a Product or any updates, upgrades or enhancements to a Product.

14. SOFTWARE UPDATES. Vendor shall promptly make available to Roswell Park software updates (e.g., bug fixes, patches) that are made commercially available, including specifically those updates released by Vendor to address security issues and errors. Vendor shall provide Roswell Park at least fourteen (14) days’ advance written notice of any updates that materially impact Roswell Park’s use of the software. Notwithstanding the foregoing, in no event shall any updates degrade the core functionality of the current version of the software or any component thereof. For updates that will occur during business hours (8:00am to 5:00pm EST), Vendor will provide Roswell Park at least five (5) calendar days’ prior written notice of any update and one (1) business day advance written notice for unscheduled, emergency updates.

15. TRANSITION OBLIGATIONS.

15.1 Transition Services. Upon expiration or termination of the Agreement for any reason, Roswell Park shall have the option to continue any Services (including use of software Products), and/or procure additional services (collectively the “Transition Services”), as needed in order to facilitate business continuity and transition to an alternate vendor, for a period of up to twelve (12) months (the “Transition Period”). In addition to the continuation of Services set forth in the Agreement, the Transition Services may include, but are not limited to: (a) converting data; (b) providing parallel services until transition to a new system; (c) providing technical support; (d) cooperating with Roswell Park or its designated vendor in developing required interfaces; and (e) such other services as shall be necessary or appropriate to facilitate, without interruption to the Products, the orderly transition of the Products and all applicable Roswell Park data to Roswell Park or its new provider of services in accordance with industry standard practices. Fees for Transition Services shall be invoiced monthly at the rates in effect as of the termination or expiration of the Agreement, or at the hourly rate of $_____ if no fees are set forth in the Agreement.

15.2 Data Export. Upon the termination or expiration of the Agreement, or any subscription or hosting Services, or the use of any software Product, Vendor will make available to Roswell Park, at no additional charge, data files containing all information entered or input by Roswell Park or by Vendor for or on behalf of Roswell Park, into the software Product or Service. Such export data file shall be in a standard, readable file format (e.g. Microsoft Excel) reasonably acceptable to Roswell Park.

16. USE OF ROSWELL PARK NAME. It is the policy of Roswell Park that no endorsement of any vendor products or services by Roswell Park be stated or implied by any vendor. Vendor agrees that it will not use Roswell Park’s name, brand, logos, likeness, or other intellectual property, disclose the fact that Vendor has a contract with Roswell Park, or quote the opinion of any of any Roswell Park employee or representative, in any press release, advertising or promotional materials, or public announcement, including posting to Vendor’s website and social media platforms, without the prior review and express written consent of an executive officer of Roswell Park, which may be withheld, conditioned, delayed or withdrawn at Roswell Park’s discretion.

17. FORCE MAJEURE. Neither party shall be responsible for delayed performance or non-performance under the Agreement where such delay or non-performance is the direct result of unforeseeable events beyond the non-performing party’s reasonable control, including acts of God, war, riots, flood, fire, epidemic, pandemic, or other circumstances of a similar nature (each a “Force Majeure Event”), provided that the party whose delayed performance or nonperformance is excused takes commercially reasonable steps to circumvent such events and resumes performance as soon as reasonably possible to do so. A Force Majeure Event shall not include events that are reasonably foreseeable or circumstances where a party’s acts or omissions contributed to the delay or non-performance. If a party’s performance is rendered permanently impossible or impracticable due to a Force Majeure Event, either party may terminate the Agreement upon written notice to the other party.