250000001315.pdf

Revised 2/2019

CONTRACT CHANGE NOTICE

Change Notice Number 1 .

to Contract Number 250000001315.

C O

N

TR

A C

TO

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McKesson Medical-Surgical Government Solutions LLC

ST

A

TE

Pr og ra m

M an ag er

MVHGR- Paula Bixler, DON BixlerP@michigan.gov 616-204-4770

MVHCT- Adrienne Schultz, DON Schultza11@michigan.gov

MVHDJJ- Courtney Tweedale, DON TweedaleC@michigan.gov 906-458-9088

DMVA-MVH

Grand Rapids

Chesterfield Township

Marquette

9954 Mayland Drive, Suite 5176

Henrico, VA 23233-1464

Carmin Gideon

C on tra ct

Ad m in is tra to r Kerri Bielski DTMB

Carmin.Gideon@mckesson.com BielskiK@michigan.gov

Vendor# CV0004052

STATE OF MICHIGAN PROCUREMENT

Department of Military and Veteran Affairs – Michigan Veteran Homes Michigan Veteran Homes at Chesterfield Twp, Grand Rapids & DJ Jacobetti

CONTRACT SUMMARY

DESCRIPTION: Wound Care, skin care, and manufacturer medical items for the Michigan Veteran Homes

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

10/1/2025 9/30/2030 Five 1-year 9/30/2030

PAYMENT TERMS DELIVERY TIMEFRAME

Net45

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☒ P-card ☒ Payment Request (PRC) ☐ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

Schedule A

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION LENGTH OF

EXTENSION REVISED EXP. DATE

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

$5,000,000.00 $0.00 $5,000,000.00 DESCRIPTION: Effective immediately, the Contractor Contract Administrator has been updated to Carmin Gideon.

The MVHCT DON has been updated to Adrienne Schultz, and the MVHDJJ DON has been updated to Courtney Tweedale. All other terms and conditions remain the same.

mailto:BixlerP@michigan.gov mailto:Schultza11@michigan.gov mailto:TweedaleC@michigan.gov

Revised 2/2019

CHANGE NOTICE NO. 1 TO CONTRACT NO. 250000001315

FOR THE CONTRACTOR:

McKesson Medical-Surgical Government Solutions LLC

Company Name

Authorized Agent Signature

David McDade, Vice President, General Manager, Government Solutions

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Jordan Sherlock, Procurement Manager

Name & Title

Dept. of Technology, Management & Budget

Agency

STATE OF MICHIGAN PROCUREMENT

Department of Military and Veteran Affairs-Michigan Veteran Homes

MVHGR, MVHCT, MVHDJJ

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 250000001315

between

THE STATE OF MICHIGAN

and

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A C

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McKesson Medical-Surgical Government Solutions LLC

9954 Mayland Drive, Suite 5176 Henrico, VA 23233-1464

ST

A

TE

Pr og ra m

M an ag er

MVHGR- Guendolyn Williamson, MBA, BSN, RN, WOCN

WilliamsonG@michigan.gov 616-365-3844

MVHCT- Courtney Tweedale, DON TweedalC@michigan.gov 906-458-9088

MVHDJJ- Samantha Knuttila, RN 13 KnuttilaS@michigan.gov 906-226-3576

DMVA-MVH

Grand Rapids

Chesterfield Township

Marquette

Dawn Tarantelli on tra ct

Ad m in is tra to r

Kerri Bielski, Buyer DTMB

Dawn.Tarantelli@McKesson.com

BielskiK@michigan.gov

Vendor# CV0004052

CONTRACT SUMMARY

DESCRIPTION: Wound care, skin care, and manufacturer medical items

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

10/1/2025 9/30/2030 Five 1-year

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☒ P-card ☒ Payment Request (PRC) ☐ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

Schedule A

MISCELLANEOUS INFORMATION

NA

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $5,000,000.00

mailto:WilliamsonG@michigan.gov mailto:TweedalC@michigan.gov mailto:KnuttilaS@michigan.gov mailto:Dawn.Tarantelli@McKesson.com mailto:BielskiK@michigan.gov

CONTRACT NO. 250000001315

McKesson Medical-Surgical Government Solutions LLC

Company Name

David McDade, Vice President, General Manager, Government Solutions

Authorized Agent (Print or Type)

FOR THE STATE:

Jordan Sherlock, Procurement Manager

Name & Title

Dept. of Technology, Management & Budget

Agency

Revised 5/03/2016

Michigan. gov/ MiProcurement

Version 2022-1 Page 1 of 25

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and McKesson Medical-Surgical Government Solutions LLC.

(“Contractor”), Henrico, VA. This Contract is effective on October 1, 2025 (“Effective Date”), and unless terminated, expires on September 30, 2030, with five 1-year extension options.

This Contract may be renewed for up to five one-year options. Renewal is at the sole discretion of the State and will automatically extend the Term of this Contract. The State will document its exercise of renewal options via Contract Change Notice.

The parties agree as follows:

Duties of Contractor. Contractor must perform the services and provide the deliverables described in Schedule A – Statement of Work (the “Contract Activities”). An obligation to provide delivery of any commodity is considered a service and is a Contract Activity.

Contractor must furnish all labor, equipment, materials, and supplies necessary for the performance of the Contract Activities unless otherwise specified in Schedule A.

Contractor must: (a) perform the Contract Activities in a timely, professional, safe, and workmanlike manner consistent with standards in the trade, profession, or industry; (b) meet or exceed the performance and operational standards, and specifications of the Contract; (c) provide all Contract Activities in good quality, with no material defects; (d) not interfere with the State’s operations; (e) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (f) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract;

(g) return to the State any State-furnished equipment or other resources in the same condition as when provided when no longer required for the Contract; and( (i) comply with all applicable State physical and IT security policies and standards ;that were made available to the Contractor. Any breach under this paragraph is considered a material breach.

Contractor must also be clearly identifiable while on State property by wearing identification issued by the State, and clearly identify themselves whenever making contact with the State.

Notices. All notices and other communications required or permitted under this Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail

Michigan. gov/ MiProcure m e nt

Version 2022-1 Page 4 of 25 without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

If to State: If to Contractor:

See Contract Administrator information shown below.

See Contractor information shown below.

Contract Administrator. The Contract Administrator, or the individual duly authorized for each party, is the only person authorized to modify any terms of this Contract, and approve and execute any change under this Contract (each a “Contract Administrator”):

State: Contractor:

Kerri Bielski, Buyer DTMB/MVH BielskiK@michigan.gov

Dawn Tarantelli Dawn.Tarantelli@McKesson.com

Program Manager. The Program Manager for each party will monitor and coordinate the day-to-day activities of the Contract (each a “Program Manager”):

State: Contractor:

MVHGR- Guendolyn Williamson, MBA, BSN, RN, WOCN WilliamsonG@michigan.gov 616-365-3844

MVHCT- Courtney Tweedale, DON TweedalC@michigan.gov 906-458-9088

MVHDJJ- Samantha Knuttila, RN 13 KnuttilaS@michigan.gov 906-226-3576

Michael Greentree Michael.Greentree@McKesson.com

Performance Guarantee. Contractor must at all times have financial resources sufficient, in the opinion of the State, to ensure performance of the Contract and must provide proof upon request.

6. Insurance Requirements. Contractor, at its sole expense, must maintain the insurance coverage identified below. All required insurance must: (a) protect the State from claims that may arise out of, are alleged to arise out of, or otherwise result from Contractor's or a subcontractor's performance; (b) be primary and non- contributing to any comparable liability insurance (including self-insurance) carried by the State except to the extent a loss or damages is proximately caused by the negligent acts or mailto:BielskiK@michigan.gov mailto:Dawn.Tarantelli@McKesson.com mailto:WilliamsonG@michigan.gov mailto:TweedalC@michigan.gov mailto:KnuttilaS@michigan.gov mailto:Michael.Greentree@McKesson.com

Version 2022-1 Page 5 of 25 omissions of the State; and (c) be provided by a company with an A.M. Best rating of "A-" or better, and a financial size of VII or better.

TABLE 6.1

Required Limits Additional Requirements Commercial General Liability Insurance

Minimum Limits:

$1,000,000 Each Occurrence $1,000,000 Personal & Advertising Injury $2,000,000 Products/Completed Operations $2,000,000 General Aggregate

Contractor shall include “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” .

Umbrella or Excess Liability Insurance Minimum Limits:

$5,000,000 General Aggregate

Contractor must have their policy follow form.

Workers' Compensation Insurance Minimum Limits:

Coverage according to applicable laws governing work activities.

Employers Liability Insurance Minimum Limits:

$500,000 Each Accident $500,000 Each Employee by Disease $500,000 Aggregate Disease

If any of the required policies provide claims-made coverage, the Contractor must:

(a) provide coverage with a retroactive date before the Effective Date of the Contract or the beginning of Contract Activities; (b) maintain coverage and provide evidence of coverage for at least 3 years after completion of the Contract Activities; and (c) if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Contract Effective Date, Contractor must purchase extended reporting coverage for a minimum of 3 years after completion of work.

Contractor must: (a) provide insurance certificates to the Contract Administrator, containing the agreement or delivery order number, at Contract formation and within 20 calendar days of the expiration date of the applicable policies or upon renewal;

(b) require that subcontractors maintain the required insurance contained in this Section; (c) notify the Contract Administrator within 5 business days if any insurance is cancelled.

This Section is not intended to and is not to be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold

Version 2022-1 Page 6 of 25 harmless the State).

Reserved Reserved Relationship of the Parties. The relationship between the parties is that of independent contractors. Contractor, its employees, and agents will not be considered employees of the State. No partnership or joint venture relationship is created by virtue of this Contract. Contractor, and not the State, is responsible for the payment of wages, benefits and taxes of Contractor’s employees and any subcontractors. Prior performance does not modify Contractor’s status as an independent contractor. Neither party has authority to contract for nor bind the other party in any manner whatsoever.

Reserved

11. Subcontracting. Contractor may not delegate any of its obligations under the Contract without the prior written approval of the State. Contractor must notify the State at least 90 calendar days before the proposed delegation and provide the State any information it requests to determine whether the delegation is in its best interest. If approved, Contractor must: (a) be the sole point of contact regarding all contractual matters, including payment and charges for all Contract Activities; (b) make all payments to the subcontractor; and (c) incorporate the terms and conditions contained in this Contract in any subcontract with a subcontractor. Contractor remains responsible for the completion of the Contract Activities, compliance with the terms of this Contract, and the acts and omissions of the subcontractor.

The State, in its sole discretion, may require the replacement of any subcontractor. The State recognizes that Contractor is a distributor and does not consider its manufacturers or third-party carriers to be subcontractors. However, notwithstanding the preceding sentence, Contractor will be liable for any and all acts, inaction, or damage caused by said manufacturers or third-party carriers.

12. Reserved.

Background Checks. Pursuant to Michigan law, all agencies subject to IRS Pub. 1075 are required to ask the Michigan State Police to perform fingerprint background checks on all employees, including Contractor and Subcontractor employees, who may have access to any database of information maintained by the federal government that contains confidential or personal information, including, but not limited to, federal tax information. Further, pursuant to Michigan law, any agency described above is prohibited from providing Contractors or Subcontractors with the result of such background check. For more information, please see Michigan Public Act 427 of 2018. Upon request, or as may be specified in a Statement of Work, Contractor must perform background checks on all employees and subcontractors and its employees prior to their assignment. The scope is at the discretion of the State and documentation must be provided as requested. Contractor is responsible for all costs associated with the requested background checks. The State, in its sole discretion, may also perform background checks. The State recognizes that federal tax information, subject to IRS Pub. 1075 is not expected to be in possession of the Contractor by virtue of this Contract.

Assignment. Contractor may not assign this Contract to any other party without the

Version 2022-1 Page 7 of 25 prior approval of the State. Upon notice to Contractor, the State, in its sole discretion, may assign in whole or in part, its rights or responsibilities under this Contract to any other party. If the State determines that a novation of the Contract to a third party is necessary, Contractor will agree to the novation and provide all necessary documentation and signatures.

Change of Control. Contractor will notify the State, within 30 days of any public announcement or otherwise once legally permitted to do so, of a change in Contractor’s organizational structure or ownership. For purposes of this Contract, a change in control means any of the following: (a) a sale of more than 50% of Contractor’s stock; (b) a sale of substantially all of Contractor’s assets; (c) a change in a majority of Contractor’s board members; (d) consummation of a merger or consolidation of Contractor with any other entity; (e) a change in ownership through a transaction or series of transactions; (f) or the board (or the stockholders) approves a plan of complete liquidation. A change of control does not include any consolidation or merger effected exclusively to change the domicile of Contractor, or any transaction or series of transactions principally for bona fide equity financing purposes.

In the event of a change of control, Contractor must require the successor to assume this Contract and all of its obligations under this Contract.

Ordering. Contractor is not authorized to begin performance until receipt of authorization as identified in Schedule A.

Acceptance. Unless as otherwise set forth in a Statement of Work, Contract Activities are subject to inspection and testing by the State within 30 calendar days of the State’s receipt of them (“State Review Period”).If the Contract Activities are not fully accepted by the State, the State will notify Contractor by the end of the State Review Period that either: (a) the Contract Activities are accepted but noted deficiencies must be corrected; or (b) the Contract Activities are rejected. If the State finds material deficiencies, it may: (i) reject the Contract Activities without performing any further inspections; (ii) demand performance at no additional cost; or (iii) terminate this Contract in accordance with Section 24, Termination for Cause. The State’s ability to return products are subject to time timeframes set forth in Contractor’s Return Goods Policy, which is attached as Schedule C.

Within 10 business days from the date of Contractor’s receipt of notification of acceptance with deficiencies or rejection of any Contract Activities, Contractor must cure, at no additional cost, the deficiency and deliver unequivocally acceptable Contract Activities to the State. If acceptance with deficiencies or rejection of the Contract Activities impacts the content or delivery of other non-completed Contract Activities, the parties’ respective Program Managers must determine an agreed to number of days for re-submission that minimizes the overall impact to the Contract.

However, nothing herein affects, alters, or relieves Contractor of its obligations to correct deficiencies in accordance with the time response standards set forth in this Contract.

If Contractor is unable or refuses to correct the deficiency within the time response standards set forth in this Contract, the State may cancel the order in whole or in part. The State, or a third party identified by the State, may perform the Contract

Version 2022-1 Page 8 of 25

Activities.

Delivery. Contractor must deliver all Contract Activities F.O.B. destination, within the State premises with transportation and handling charges paid by Contractor, unless otherwise specified in Schedule A. All containers and packaging become the State’s exclusive property upon acceptance.

Risk of Loss and Title. Until final acceptance, title and risk of loss or damage to Contract Activities remains with Contractor. Contractor is responsible for filing, processing, and collecting all damage claims. The State will record and report to Contractor any evidence of visible damage. If the State rejects the Contract Activities, Contractor must remove them from the premises within 10 calendar days after notification of rejection. The risk of loss of rejected or non-conforming Contract Activities remains with Contractor. Rejected Contract Activities not removed by Contractor within 10 calendar days will be deemed abandoned by Contractor, and the State will have the right to dispose of it as its own property. Contractor must reimburse the State for costs and expenses incurred in storing or effecting removal or disposition of rejected Contract Activities.

Warranty Period. The warranty period, if applicable, for Contract Activities is a fixed period commencing on the date specified in Schedule A..

Invoices and Payment. Invoices must conform to the requirements communicated from time-to-time by the State. All undisputed amounts are payable within 45 days of the State’s receipt. Contractor may only charge for Contract Activities provided as specified in Schedule A. Invoices must include an itemized statement of all charges.

The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. Notwithstanding the foregoing, all fees are exclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

The State has the right to withhold payment of any disputed amounts until the parties agree as to the validity of the disputed amount. The State will notify Contractor of any dispute within a reasonable time. Payment by the State will not constitute a waiver of any rights as to Contractor’s continuing obligations, including claims for deficiencies or substandard Contract Activities. Contractor’s acceptance of final payment by the State constitutes a waiver of all claims by Contractor against the State for payment under this Contract, other than those claims previously filed in writing on a timely basis and still disputed.

The State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment.

Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount then due and owing to it by Contractor against any amount payable by the State to Contractor under this Contract.

Liquidated Damages. Liquidated damages, if applicable, will be assessed as described in a Statement of Work. The parties understand and agree that any liquidated damages (which http://www.michigan.gov/SIGMAVSS

Version 2022-1 Page 9 of 25 includes but is not limited to applicable credits) set forth in this Contract are reasonable estimates of the State’s damages in accordance with applicable law. The parties acknowledge and agree that Contractor could incur liquidated damages for more than 1 event. The assessment of liquidated damages will not constitute a waiver or release of any other remedy the State may have under this Contract for Contractor’s breach of this Contract, including without limitation, the State’s right to terminate this Contract for cause under Section 24 and the State will be entitled in its discretion to recover actual damages caused by Contractor’s failure to perform its obligations under this Contract. However, the State will reduce such actual damages by the amounts of liquidated damages received for the same events causing the actual damages. Amounts due the State as liquidated damages may be set off against any fees payable to Contractor under this Contract, or the State may bill Contractor as a separate item and Contractor will promptly make payments on such bills.

Stop Work Order. The State may suspend any or all activities under the Contract at any time. The State will provide Contractor a written stop work order detailing the suspension. Contractor must comply with the stop work order upon receipt. Within 90 calendar days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate the Contract or delivery order. The State will not pay for Contract Activities, Contractor’s lost profits, or any additional compensation during a stop work period.

Termination for Cause. The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (a) endangers the value, integrity, or security of any location, data, or personnel; (b) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (c) engages in any conduct that may expose the State to liability; (d) breaches any of its material duties or obligations; or (e) fails to cure a breach within the time stated in a notice of breach. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (a) cease performance immediately, or (b) continue to perform for a specified period. If it is later determined that Contractor was not in breach of the Contract, the termination will be deemed to have been a Termination for Convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 25, Termination for Convenience.

The State will only pay for amounts due to Contractor for Contract Activities accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. The Contractor must pay all reasonable and direct costs incurred by the State in terminating this Contract for cause, including, attorneys’ fees and court costs.

In the event of State’s material breach of this Supply Agreement, Contractor shall notify the State in writing of the specific nature of the breach and shall request that it be cured. If the State does not cure the breach within 60 days of such notice, Contractor may immediately terminate this Contract on written notice to the State, Version 2022-1 Page 10 of 25 and such termination shall not preclude Contractor from pursuing any and all remedies available to it at law or at equity.

25. Termination for Convenience. The State may immediately terminate this Contract in whole or in part without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify whether Contractor must: (a) cease performance of the Contract Activities immediately, or (b) continue to perform the Contract Activities in accordance with Section 26, Transition Responsibilities. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities.

In the event of Termination for Convenience and to the extent that there are funds available the State will be obligated to pay Contractor for Contractor’s entire inventory of any custom items (including, but not limited to, Medline-brand and non-Medline-brand kits and trays) manufactured or acquired to satisfy State’s orders and/or forecasts.

Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), incurred by the State as a result of a third-party claim of bodily injury or death, occurring wholly or in party due to the Contractor’s gross negligence or willful misconduct .

The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations.

The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense, at its own cost and expense, if the State deems necessary. Contractor will not, without the State’s prior written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding.

Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

The State is constitutionally prohibited from indemnifying Contractor or any third parties.

Notwithstanding anything to the contrary herein, an indemnified party shall not be entitled to indemnification to the extent the injury or damage is caused by (i) the negligent acts or omissions of any indemnified party; (ii) use of a product or service

Version 2022-1 Page 11 of 25 supplied by Contractor in any manner outside the scope of the specifications or in a manner for which the Product was not reasonably intended, or (iii) the use of any product or service supplied that has been altered without Contractor’s written approval.

Infringement Remedies. If, in either party’s opinion, any piece of equipment, software, commodity, or service supplied by Contractor or its subcontractors, or its operation, use or reproduction, is likely to become the subject of a copyright, patent, trademark, or trade secret infringement claim, Contractor must, at its expense: (a) procure for the State the right to continue using the equipment, software, commodity, or service, or if this option is not reasonably available to Contractor, (b) replace or modify the same so that it becomes non-infringing; or (c) accept its return by the State with appropriate credits to the State against Contractor’s charges and reimburse the State for any direct losses or costs incurred as a consequence of the State ceasing its use and returning it.

Limitation of Liability and Disclaimer of Damages. IN NO EVENT WILL THE

STATE’S AGGREGATE LIABILITY TO CONTRACTOR UNDER THIS CONTRACT,

REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,

NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY

CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT, EXCEED THE

MAXIMUM AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT. Neither party is liable to the other for consequential, incidental, indirect, or special damages, regardless of the nature of the action.

Disclosure of Litigation, or Other Proceeding. Contractor must notify the State within 14 calendar days of receiving notice of any litigation, investigation, arbitration, or other proceeding (collectively, “Proceeding”) involving Contractor, a subcontractor, or an officer or director of Contractor or subcontractor, that arises during the term of the Contract, including: (a) a criminal Proceeding; (b) a parole or probation Proceeding; (c) a Proceeding under the Sarbanes-Oxley Act; (d) a civil Proceeding involving: (1) a claim that might reasonably be expected to materially and adversely affect Contractor’s viability or financial stability; or (2) a governmental or public entity’s claim or written allegation of fraud; or (e) a Proceeding involving any license that Contractor is required to possess in order to perform under this Contract.

State Data. All data and information provided to Contractor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”); this definition is to be construed as broadly as possible. Upon request, Contractor must provide to the State, or a third party designated by the State, all State Data within 10 calendar days of the request and in the format requested by the State. Contractor will assume all costs incurred in compiling and supplying State Data. Contractor may use, repurpose, copy, modify, distribute, display and/or publish “Transaction Data” for Contractor’s own use and for commercial purposes. Transaction Data means information regarding the party’s names, billing, and shipping addresses, product purchased, quantity of the purchase, and the date of the purchase by the State. The State acknowledges that Contractor may provide Transaction Data to group purchasing organizations, suppliers, and other third parties relating to the State’s purchases from Contractor. The State hereby waives any rights of confidentiality with respect to Transaction Data to the

Version 2022-1 Page 12 of 25 extent necessary to allow Contractor to provide such information to group purchasing organizations, suppliers, and other third parties.

31. Reserved

Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.

a. Meaning of Confidential Information. For the purposes of this Contract, the term “Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was or is: (a) subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (c) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (d) obtained from a source other than the disclosing party without an obligation of confidentiality; or,

(e) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Contract, in all cases and for all matters, State Data is deemed to be Confidential Information.

b. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Disclosure to a subcontractor is permissible where: (a) use of a subcontractor is authorized under this Contract; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the subcontractor's responsibilities; and (c) Contractor obligates the subcontractor in a written contract to maintain the State's Confidential Information in confidence. At the State's request, any employee of Contractor or any subcontractor may be required to execute a separate agreement to be bound by the provisions of this Section.

c. Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party promptly in the event either party learns or has reason to believe that any person who has had access to

Version 2022-1 Page 13 of 25

Confidential Information has violated or intends to violate the terms of this Contract and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

d. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.

e. Surrender of Confidential Information upon Termination. Upon termination of this Contract or a Statement of Work, in whole or in part, each party must, within 30 calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Contractor must return State Data to the State following the timeframe and procedure described further in this Contract. Should Contractor or the State determine that the return of any Confidential Information is not feasible, such party must destroy the Confidential Information and must certify the same in writing within 30 calendar days from the date of termination to the other party. However, the State’s and the Contractor’s ability to destroy State or Contractor data, respectively, may be restricted by the respective party’s retention and disposal schedule, in which case the other party’s Confidential Information will be destroyed after the retention period expires.

Reserved Reserved Reserved Records Maintenance, Inspection, Examination, and Audit. Pursuant to MCL 18.1470, the State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain and provide to the State or its designee and the auditor general upon request, all records related to the Contract through the term of the Contract and for 3 years after the latter of termination, expiration, or final payment under this Contract or any extension (“Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Audit Period, Contractor must retain the records until all issues are resolved.

Within 10 calendar days of providing notice, the State and its authorized representatives or designees have the right to enter and inspect Contractor's premises or any other places where Contract Activities are being performed, and examine, copy, and audit all records related to this Contract. Contractor must cooperate and provide reasonable assistance. If financial errors are revealed, the amount in error must be reflected as a credit or debit on subsequent invoices until the amount is paid or refunded. Any remaining balance at the end of the Contract must be paid or refunded within 45 calendar days.

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This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

Representations and Warranties. Contractor represents and warrants: (a) Contractor is the owner or licensee of any Contract Activities that it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (b) all Contract Activities are delivered free from any security interest, lien, or encumbrance and will continue in that respect; (c) the Contract Activities will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (d) Contractor must assign or otherwise transfer to the State or its designee any manufacturer's warranty to the extent possible for the Contract Activities; (e) the Contract Activities are merchantable and fit for the specific purposes identified in the Contract; (f) the Contract signatory has the authority to enter into this Contract; (g) all information furnished by Contractor in connection with the Contract fairly and accurately represents Contractor's business, properties, finances, and operations as of the dates covered by the information, and Contractor will inform the State of any material adverse changes;(h) all information furnished and representations made in connection with the award of this Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading; and that (i) Contractor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606. A breach of this Section is considered a material breach of this Contract, which entitles the State to terminate this Contract under Section 24, Termination for Cause.

Conflicts and Ethics. Contractor will uphold high ethical standards and is prohibited from: (a) holding or acquiring an interest that would conflict with this Contract; (b) doing anything that creates an appearance of impropriety with respect to the award or performance of the Contract; (c) attempting to influence or appearing to influence any State employee by the direct or indirect offer of anything of value; or (d) paying or agreeing to pay any person, other than employees and consultants working for Contractor, any consideration contingent upon the award of the Contract. Contractor must promptly notify the State of any violation or potential violation of these standards. This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

Compliance with Laws. Contractor must comply with all federal, state and local laws, rules and regulations.

Reserved Reserved Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., and Executive Directive 2019-09. Contractor and its subcontractors https://www.michigan.gov/whitmer/0%2C9309%2C7-387-90499_90704-486781--%2C00.html

Version 2022-1 Page 15 of 25 agree not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex (as defined in Executive Directive 2019-09), height, weight, marital status, partisan considerations, any mental or physical disability, or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position. Breach of this covenant is a material breach of this Contract.

Unfair Labor Practice. Under MCL 423.324, the State may void any Contract with a Contractor or subcontractor who appears on the Unfair Labor Practice register compiled under MCL 423.322.

Governing Law. This Contract is governed, construed, and enforced in accordance with Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of this Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from this Contract must be resolved in the Michigan Court of Claims. Complaints against the State must be initiated in Ingham County, Michigan. Contractor waives any objections, such as lack of personal jurisdiction or forum non conveniens. Contractor must appoint an agent in Michigan to receive service of process.

Non-Exclusivity. Nothing contained in this Contract is intended nor is to be construed as creating any requirements contract with Contractor, nor does it provide Contractor with a right of first refusal for any future work. This Contract does not restrict the State or its agencies from acquiring similar, equal, or like Contract Activities from other sources.

Force Majeure. Neither party will be in breach of this Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence. Each party will use commercially reasonable efforts to resume performance. Contractor will not be relieved of a breach or delay caused by its subcontractors. If immediate performance is necessary to ensure public health and safety, the State may immediately contract with a third party.

Dispute Resolution. The parties will endeavor to resolve any Contract dispute in accordance with this provision. The dispute will be referred to the parties' respective Contract Administrators or Program Managers. Such referral must include a description of the issues and all supporting documentation. The parties must submit the dispute to a senior executive if unable to resolve the dispute within 15 business days. The parties will continue performing while a dispute is being resolved, unless the dispute precludes performance. A dispute involving payment does not preclude performance.

Litigation to resolve the dispute will not be instituted until after the dispute has been elevated to the parties’ senior executive and either concludes that resolution is unlikely or fails to respond within 15 business days. The parties are not prohibited from instituting formal proceedings: (a) to avoid the expiration of statute of limitations period; (b) to preserve a superior position with respect to creditors; or (c) where a party makes a determination that a temporary restraining order or other injunctive

Version 2022-1 Page 16 of 25 relief is the only adequate remedy. This Section does not limit the State’s right to terminate the Contract.

Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without the prior written approval of the State, and then only in accordance with the explicit written instructions of the State.

Schedules. All Schedules and Exhibits that are referenced herein and attached hereto are hereby incorporated by reference. The following Schedules are attached hereto and incorporated herein:

Entire Agreement and Order of Precedence. This Contract, which includes Schedule A – Statement of Work, and schedules and exhibits, is the entire agreement of the parties related to the Contract Activities. This Contract supersedes and replaces all previous understandings and agreements between the parties for the Contract Activities. If there is a conflict between documents, the order of precedence is: (a) first, this Contract, excluding its schedules, exhibits, and Schedule A – Statement of Work; (b) second, Schedule A – Statement of Work as of the Effective Date; and (c) third, schedules expressly incorporated into this Contract as of the Effective Date; and (d) fourth, Schedule C – Return and Refund Policy. NO

TERMS ON CONTRACTOR’S INVOICES, ORDERING DOCUMENTS, WEBSITE,

BROWSE-WRAP, SHRINK-WRAP, CLICK-WRAP, CLICK-THROUGH OR OTHER

NON-NEGOTIATED TERMS AND CONDITIONS PROVIDED WITH ANY OF THE

CONTRACT ACTIVITIES, OR DOCUMENTATION HEREUNDER, EVEN IF

ATTACHED TO THE STATE’S DELIVERY OR PURCHASE ORDER, WILL

CONSTITUTE A PART OR AMENDMENT OF THIS CONTRACT OR IS BINDING

ON THE STATE OR ANY AUTHORIZED USER FOR ANY PURPOSE. ALL SUCH

OTHER TERMS AND CONDITIONS HAVE NO FORCE AND EFFECT AND ARE

DEEMED REJECTED BY THE STATE AND THE AUTHORIZED USER, EVEN IF

ACCESS TO OR USE OF THE CONTRACT ACTIVITIES REQUIRES

AFFIRMATIVE ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

Severability. If any part of this Contract is held invalid or unenforceable, by any court of competent jurisdiction, that part will be deemed deleted from this Contract and the severed part will be replaced by agreed upon language that achieves the same or similar objectives. The remaining Contract will continue in full force and effect.

Waiver. Failure to enforce any provision of this Contract will not constitute a waiver.

Survival. Any right, obligation, or condition that, by its express terms or nature and context is intended to survive, will survive the termination or expiration of this Contract; such rights, obligations, or conditions include, but are not limited to, those related to transition responsibilities; indemnification; disclaimer of damages and limitations of liability; State Data; non-disclosure of Confidential Information;

representations and warranties; insurance and bankruptcy.

Contract Modification. This Contract may not be amended except by signed agreement between the parties (a “Contract Change Notice”). Notwithstanding the foregoing, no subsequent Statement of Work or Contract Change Notice executed after the Effective Date will be construed to amend this Contract unless it specifically states its intent to do so and cites the section or sections amended.

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FEDERAL PROVISIONS ADDENDUM

This addendum applies to purchases that will be paid for in whole or in part with funds obtained from the federal government. The provisions below are required, to the extent applicable, and the language is not negotiable. If any applicable provision below conflicts with the State’s terms and conditions, including any attachments, schedules, or exhibits to the State’s Contract, the provisions below take priority to the extent a provision is required by federal law; otherwise, the order of precedence set forth in the Contract applies. Hyperlinks are provided for convenience only; broken hyperlinks will not relieve Contractor from compliance with the law.

Equal Employment Opportunity If this Contract is a “federally assisted construction contract” as defined in 41 CFR Part 60-1.3, and except as otherwise may be provided under 41 CFR Part 60, then during performance of this Contract, the Contractor agrees as follows:

a. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

b. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without…