3 ITB Attachment 1_NEATO DRAFT AGREEMENT.doc

Attachment 1

SPECIAL SUPPLEMENTAL NUTRITION PROGRAM

FOR WOMEN, INFANTS, AND CHILDREN (WIC PROGRAM)

NEW ENGLAND AND TRIBAL ORGANIZATIONS (NEATO)

Cherokee Nation

Connecticut

Maine

Massachusetts

New Hampshire

Rhode Island Vermont

WIC RETAIL INFANT FORMULA REBATE DRAFT AGREEMENT

WITH XXXX

Effective: October 1, 2021 This AGREEMENT is made effective this 1st day of October 2021 and shall be interpreted pursuant to the respective laws of each state and the tribe as hereinafter detailed, by and between the Cherokee Nation, the State of Connecticut, the State of Maine, the Commonwealth of Massachusetts, the State of New Hampshire, the State of Rhode Island, and the State of Vermont, (hereinafter NEATO) and XXXX (hereinafter MANUFACTURER).

WHEREAS, NEATO desires to implement a WIC infant formula rebate system intended to decrease the cost of infant formula and improve program operations and services through increased participation in the Special Supplemental Nutrition Program for Women, Infants, and Children (hereinafter WIC Program) by eligible participants.

WHEREAS, the MANUFACTURER, through its sealed bid submitted on March 10, 2021, which is specifically incorporated herein by reference as part of this agreement, agrees to provide to NEATO a rebate on infant formula manufactured by the MANUFACTURER and provided to WIC participants through Electronic Benefits Transfer (EBT) that specify infant formula products and that are redeemed by WIC participants in accordance with state, tribe, and federal rules.

WHEREAS, the following terms shall have the following meanings for purposes of this Agreement:

“New England and Tribal Organizations” or “NEATO” refers to the six (6) states and one (1) tribe acting as a single entity.

“WIC vendor” refers to authorized WIC retail grocery stores and pharmaceutical stores.

“Infant formula” means a food that meets the definition of an infant formula in section 201(z) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(z)) and that meets the requirements for an infant formula under section 412 of the Federal, Food, Drug, and Cosmetic Act (21 U.S.C. 350a) and the regulations at 21 CFR parts 106 and 107.

“Contract brand infant formula” means all infant formulas (except exempt infant formulas) produced by the MANUFACTURER awarded the infant formula contract. If the MANUFACTURER subcontracts for soy-based infant formula, then all soy-based infant formulas covered by the subcontract are considered contract brand infant formulas. Contract brand infant formulas also include all infant formulas (except exempt infant formulas) introduced by the MANUFACTURER after the award.

“Primary contract infant formula” means the specific infant formula for which the MANUFACTURER submits a bid to NEATO in response to a rebate solicitation and for which a contract is awarded by NEATO as a result of that bid.

“Non-contract infant formula” means all infant formula (including exempt infant formula) that is not covered by the infant formula contract awarded by NEATO.

“Exempt Formula” means an infant formula that meets the requirements for an exempt infant formula under section 412(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 350a(h)) and the regulations at 21 CFR parts 106 and 107.

NOW, THEREFORE, for and in consideration of mutual promises and covenants herein set forth, the parties agree as follows:

1.) Restrictions to Manufacturer’s Products NEATO agrees to restrict all infant formula products issued to WIC participants to products manufactured by the MANUFACTURER unless otherwise indicated through medical documentation as outlined in 7 CFR § 246.10(d)(1)-(2), or if the MANUFACTURER is unable to make enough formula available for purchase by WIC vendors.

NEATO shall implement this restriction through the EBT system. All issued infant formula products are restricted to the Formula Category and separated into subcategories defined by each infant formula’s unique Universal Product Code (UPC).

2.) Manufacturer’s Rebate Subject to provisions below, the MANUFACTURER shall make available for purchase by all WIC vendors specified infant formula products in sufficient supply to serve one hundred percent (100%) of WIC caseload, and meet WIC’s growth needs, and the MANUFACTURER shall reimburse NEATO for part of the price paid by NEATO to WIC vendors for purchase under the WIC Program of commercially sold infant formula in powder, liquid concentrate, and ready-to-feed forms. The amount the MANUFACTURER shall reimburse NEATO, effective October 1, 2021 or implementation of the AGREEMENT, whichever is later, shall be determined as follows:

a. The rebate amount per unit for the MANUFACTURER’S primary contract brand of infant formula (XXXX), beginning October 1, 2021 shall be:

1.

$ 0.000 per X-ounce unit of iron-fortified liquid concentrate milk formula

(Representing a 000.0% percentage discount on liquid concentrate formulas) 2.

$ 0.000 per X-ounce unit of iron-fortified powder milk formula

(Representing a 000.0% percentage discount on powdered formula)

3.

$ 0.000 per X-ounce unit of iron-fortified liquid ready-to-feed milk formula

(Representing a 000.0% percentage discount on ready-to-feed formulas)

Such rebate shall be paid on any infant formula in the MANUFACTURER’S infant formula product line (with the exception of exempt infant formula) that NEATO chooses to approve for issuance under this AGREEMENT, in addition to the primary contract brand specified in the bid received.

b. A percentage discount shall be calculated for each physical form (powder, liquid concentrate, ready-to-feed) by dividing the rebate by the MANUFACTURER’S lowest national wholesale price per unit for a full truckload as of the date of the bid opening. These percentage discounts shall be used to determine the rebate for all other contract brand infant formulas approved for issuance by NEATO. Rebates shall be paid at the same percentage discount for the same physical form of formula being provided. The percentage discount must remain the same throughout the contract period except for adjustments to rebate amounts per section 3, below.

c. If the MANUFACTURER replaces the primary contract brand infant formula with a new product, the MANUFACTURER shall supply the replacement product(s) to NEATO at the same net cost per ounce for the alternative formula, which shall be considered the new primary contract brand infant formula. The MANUFACTURER shall notify NEATO of any replacement infant formula products introduced by the MANUFACTURER subsequent to the signing of this AGREEMENT.

d. Advance notification is required by the MANUFACTURER to NEATO of at least 90 days for any changes in labels, unit size, reformulation, UPC, and product discontinuation.

e. The MANUFACTURER shall make new products, excluding exempt formulas, available for rebate under this AGREEMENT. However, NEATO is not obligated to negotiate or add products to the rebate list. If NEATO (or any state/tribe) does approve any such new or existing products for issuance during the term of this AGREEMENT, the MANUFACTURER shall pay a rebate that yields the same percentage discount as the corresponding physical form of formula. Any such rebate shall be calculated by multiplying the percentage discount by the lowest national wholesale price per unit for a full truckload of this new formula at the time the new formula is approved for issuance by NEATO or any state/tribe. The percentage discount must remain the same throughout the contract period except for adjustments to rebate amounts per section 3, below.

f. The MANUFACTURER cannot be required to provide gratis items, such as sample units of infant formula, and/or educational material, such as brochures and flyers.

g. Neither party in either NEATO (any state/tribe) or the MANUFACTURER shall be liable for delays or performance failures resulting from and caused by acts beyond the control of such party. Such acts shall include, but not be limited to, acts of God, acts of war, epidemics, communication line failures, power failures, shortage of supplies, earthquakes or other disasters or events, but in every case the delays must be beyond the control, and without the fault or negligence of, the non-performing party. Notwithstanding the above, the MANUFACTURER shall use its best efforts to prevent and/or minimize delays or performance failures. If the MANUFACTURER fails to deliver or make available the specific formula products as designated herein, then the state/tribe may procure the usage of other formula products through the same or another and/or may cancel this AGREEMENT.

h. Any increase in the projected level of formula type to be delivered into a disaster / emergency area shall not be cause for increased pricing by the MANUFACTURER. At the request of NEATO or any state/tribe, the MANUFACTURER shall work cooperatively with NEATO or any state/tribe to provide adequate formula supplies by type, form, container size, and UPC to retailers in the disaster / emergency area within a reasonable response time, given the severity of the situation.

i. If there is a temporary supply problem of a particular contract brand infant formula issued to WIC participants [i.e., the product is not available for order or has a factory back-order or delivery failure of three (3) days or more], and the MANUFACTURER has made its best efforts to alleviate the shortage, NEATO shall first substitute alternate forms (i.e., powder, concentrate, ready-to-feed) of the primary contract brand, or, shall first provide an alternate brand of the MANUFACTURER’s formula to relieve any temporary supply problems, before resorting to the use of non-contract brand formula. If this is not possible, the MANUFACTURER shall rebate each state/tribe the current rebate amount for another company’s (ies’) comparable infant formula product. Furthermore, if the MANUFACTURER can only supply one form of formula (i.e., powder, concentrate, or ready-to-feed) to WIC participants, the MANUFACTURER must rebate the available formula form at the highest discount rate. For example, if the MANUFACTURER only has liquid concentrate available, and the rebate discount is higher for powder, the MANUFACTURER would be obligated to provide the liquid concentrate at the powder percentage discount. Medical documentation regulations per 7 CFR § 246.10(d)(1)-(2) will be followed.

3.) Adjustment of Rebate Amount national wholesale price level adjustments (increases or decreases) shall result in an automatic rebate adjustment on a cent-for-cent basis. The MANUFACTURER’S rebate amount (subject to the provisions of section 2, above) shall be adjusted during the term of this AGREEMENT, between March 10, 2021 (which was the bid opening date) and the ending date as noted in section 8 of this AGREEMENT. For purposes of this section 3, the national wholesale price shall be the lowest national wholesale price for a full truckload of infant formula. Any such adjustment to the MANUFACTURER’S rebate amount under this section 3 shall be effective for formula benefits redeemed under this AGREEMENT, in accordance with state, tribe, and federal rules, on or after the first day of the month following such adjustment in the MANUFACTURER’S per-unit national wholesale price, or the first day of the term that this AGREEMENT is effective. Any adjustments in the national wholesale price subsequent to completion of the bid shall be reflected in a cent-for-cent adjustment. The MANUFACTURER shall notify NEATO concurrently with its notification to any trade customers of such commercial wholesale price adjustment.

4.) Invoicing, Billing, and Remitting

a. Each state/tribe shall prepare an invoice for the MANUFACTURER’S monthly rebate payment; the invoice shall contain the methodology and data used to calculate the monthly rebate payment. The invoices shall be submitted electronically by each state/ tribe, to the MANUFACTURER.

b. The number of units for each physical form, type, and size of infant formula product included in this AGREEMENT and issued on EBT cards and redeemed by WIC participants shall be calculated monthly using the eWIC billing method.

c. The eWIC billing method is based on the actual total number of formula units redeemed.

For each issued and redeemed formula eligible for rebate, the state/ tribe shall identify the number of units by type, size, and form that were redeemed in the appropriate billing month. The eWIC transactions included in the billing month are based on the date purchases were made, also known as the Redeemed Date. Adjustments are made for any voided units in the billing month. The redeemed quantities are multiplied by the rebate rates in effect when the eligible formula was redeemed. Monthly supporting data will be provided that shows the infant formula eligible for rebate, that has been redeemed, for a given date range, by each formula type (category/subcategory).

For Cherokee Nation, this report will include the Issue Month, Redeemed Month, Formula Description (Product Name), UPC Category and Subcategory, Total Units Redeemed and Rebate per Unit.

For Connecticut, this report will include: Product Name (item description), UPC Code, UPC Category Code, UPC Subcategory Code, Redeemed Date, Redeemed Amount, Redeemed Quantity, and Rebate Per Unit.

For Maine, this report may include: Product Description, Product ID (the internal MIS product number), First Use Date, Redeemed Date, Redeemed Dollar Amount, Redeemed Quantity, Vendor Number, and Peer Group. Be advised, Maine began the transition to EBT in June 2020, the eWIC invoicing report is still in development.

For Massachusetts, this report will include: WIC Host Generated Trace Number (a unique Transaction number), the Subcategory Product Name (item description), First Use Date, Redeemed Date, Redeemed Amount, and Redeemed Quantity.

For New Hampshire, this report will include: period covered, payment due date, contract number, rebate summary for report month and grand total remittance due. The invoice is broken down into two parts, the Summary of Month Issued and the Summary of Totals for Paid Month. The Summary of Month Issued includes the size and type of formula, units issued, units redeemed, rebate per unit, and the total rebate by formula. A subtotal for all formulas during each month issued follows each section. The Summary of Totals for Paid Month combines the totals by formula type for each month of issuance. This section also includes a subtotal for all formulas listed above.

For Rhode Island, this report will include: Period Covered, Product, Issue Month, Peer Group, Food Distribution Item, Product Average Price, Dollars Redeemed, Possible Unit on Food Instrument, Calculated Units Purchased, Rebate Per Unit Amount, Rebate Dollars, Total Supplier Rebate Due.

For Vermont, this report will include: Redemption Month, Subcategory Product Name, Redeemed Quantity, Rebate Amount, and Total Infants Served During Redemption Month.

d. Each state/tribe shall submit its invoice by mid-month. The MANUFACTURER shall forward reimbursement of the MANUFACTURER’S monthly rebate payment as indicated on the state/ tribe’s invoice within thirty (30) days of receipt of the invoice. The MANUFACTURER shall make payments to each state/ tribe in the manner prescribed in this section 4.e. below. If payment is not forwarded to the state/ tribe within 30 days of the receipt of the invoice, the MANUFACTURER shall pay the state/tribe, in addition to the amount due, interest at a rate of three-quarters of one percent (.75%) per month or portion thereof, on the unpaid balance from the expiration of such 30 days period until such time as payment is received by the state/ tribe.

e. The MANUFACTURER shall make such rebate payment by check/wire transfer/electronic funds transfer, payable to each state/tribe, at the determination and request of each state/ tribe, which is a party to this AGREEMENT as follows:

Cherokee Nation (Wire Transfer)

Treasurer, State of Connecticut (EFT)

Treasurer, State of Maine (Wire Transfer)

Commonwealth of Massachusetts, Department of Public Health (Wire Transfer)

Treasurer, State of New Hampshire (Wire Transfer)

General Treasurer, State of Rhode Island (Wire Transfer)

Vermont (Wire Transfer) 5.) Rebate Calculations

a. In the event that any state/tribe experiences a delay in obtaining the data to calculate the monthly rebate payment, and is unable to calculate the monthly rebate payment, the MANUFACTURER shall reimburse the state/ tribe an estimated amount to equal the lower amount of the two most recent months for which data is available. As requested by the MANUFACTURER, the state/tribe shall provide any current data it has available to substantiate the estimated amount.

b. When rebate calculation data for any month for which an estimated rebate was billed becomes available, the state/tribe shall bill the MANUFACTURER for any difference due, or shall deduct from its next invoice any amount of overpayment, or shall reimburse the MANUFACTURER for any overpayment if there are not further invoices due to equal the amount of overpayment.

6.) Disputes and Dispute Resolution

The MANUFACTURER shall provide written notice to the state/tribe of any dispute regarding a rebate invoice within ninety (90) days of receipt of the invoice. If the MANUFACTURER misses the deadline, any requirement to return funds to the MANUFACTURER as a result of a dispute is waived. All disputes must be resolved by closeout of the federal fiscal year during which the dispute occurred. The process for such dispute resolution shall be determined by each respective state/tribe as may be noted in the applicable Appendix provided in section 16 of this AGREEMENT.

a. The MANUFACTURER may not withhold any rebate payment or interest to a state/tribe.

b. If a dispute is resolved in favor of the MANUFACTURER and it is determined that, in addition to payment of the full amount of the invoice, the MANUFACTURER had paid interest at the rate of three-quarters of one percent (.75%) per month, reimbursement or adjustment shall include interest payments on that portion of the disputed amount found to have been incorrectly charged to the MANUFACTURER. No reimbursement or adjustment shall be made for the portion of interest paid on that part of the disputed amount found to have been correctly charged to the MANUFACTURER.

c. Any reimbursement owed to the MANUFACTURER due to overpayment of a rebate amount and/or interest payment, if any, or other adjustment, shall, at the option of the state/ tribe, be either deducted from the next rebate invoice or paid promptly through direct payment.

7.)

NEATO is entitled to a rebate payment for all units of infant formula, pursuant to section 4 above, issued with a “first valid date of use” during the term of this AGREEMENT, to WIC participants for infant formula products manufactured by the MANUFACTURER during the term of this AGREEMENT, and redeemed according to state, tribe, and federal rules, regardless of the expiration and/or termination date of this AGREEMENT.

8.)

Term of Agreement and Extension of Agreement

a. This AGREEMENT shall be effective on October 1, 2021 and shall remain in effect until September 30, 2024 unless terminated sooner or extended in accordance with the terms in this section 8.

b. This AGREEMENT may be extended by NEATO for one (1), two (2) year period, or any portion thereof, under the same terms, conditions and rebate structure. Notice of such intention to extend must be provided by the NEATO ITB Representative to the MANUFACTURER by January 31, 2024. NEATO reserves the unilateral right to order changes and/or to delay initiation of the AGREEMENT if NEATO deems necessary and if such changes or delays do not alter the scope of the AGREEMENT. When a public exigency is determined to exist by any state/tribe under this AGREEMENT, which exigent situation necessitates continuation of the AGREEMENT, this AGREEMENT shall be continued for successive one (1) month periods, not to exceed three (3) periods, under the same terms, conditions and rebate structure.

9.)

Cancellation of Agreement by Manufacturer

a. The MANUFACTURER may cancel the AGREEMENT with any state/ tribe in material breach of the AGREEMENT or with NEATO with cause for breach, as defined in section 9.c. below, upon three hundred and sixty-five (365) days advance written notification to any affected state/tribe. Any such cancellation may take effect only on the last day of a calendar month.

b. In the event of cancellation by any state/tribe under section 10 below, the MANUFACTURER shall have the option to continue the AGREEMENT for the specified term with the remaining states/tribe or to cancel the AGREEMENT with NEATO, upon providing three hundred and sixty-five (365) days advance written notice.

c. For the purposes of this AGREEMENT, “breach” shall be defined as a party’s substantial failure to carry out one or more of the provisions, responsibilities, duties or obligations of the contract.

10.)

Cancellation of Agreement by NEATO This AGREEMENT may be canceled by NEATO or any state/tribe at any time, with or without cause; upon two hundred and ten (210) days advance written notice to the MANUFACTURER. Cancellation under this section 10 by any state/tribe shall apply only to the individual state/tribe and shall not apply to any other state/tribe.

11.)

Correspondence among Parties The MANUFACTURER shall address correspondence and communications to each state/tribe designee or their successor as follows:

Cherokee Nation:

Brenda Carter, Director Cherokee Nation WIC Program

If by regular mail:

P.O. Box 948

Tahlequah, OK 74465

If through delivery service:

22361 Bald Hill Road

Tahlequah, OK 74464

Phone:

(918) 453-5291 brenda-carter@cherokee.org Connecticut: Marjorie Chambers, Director Connecticut State WIC

State of Connecticut, Department of Public Health

PO Box 340308

410 Capitol Avenue, MS #11WIC

Hartford, CT 06134-0308

Phone: 860.509.8101 Marjorie.chambers@ct.gov

Maine:

Ginger Roberts-Scott, Director Department of Health & Human Services

Maine WIC Nutrition Program

286 Water Street, Key Plaza, 4th Floor Augusta, ME 04333

Phone:

207. 287.5342 Ginger.roberts-scott@maine.gov

Massachusetts

Rachel Colchamiro, Director

Massachusetts WIC Program Director

Massachusetts Department of Public Health

250 Washington Street, 6th Floor

Boston, MA 02108-4618

Phone:

617. 624.6145 Rachel.colchamiro@mass.gov New Hampshire:

Lissa Sirois, Administrator Nutrition Services Section

Department of Health & Human Services

29 Hazen Drive

Concord, NH 03301-6527

Phone:

603.271.0571 lissa.sirois@dhhs.nh.gov Rhode Island:

Ann Barone, Chief, WIC Program

Division of Community, Health and Equity Rhode Island Department of Health

3 Capitol Hill, Room 302

Providence, RI 02909-5097

Phone:

401. 222.4604

Ann.barone@health.ri.gov

Vermont:

Karen Flynn, Director Vermont Department of Health

Vermont WIC Program

108 Cherry Street, PO Box 70 Burlington, VT 05402 Phone:

802-652-4171 Karen.Flynn@vermont.gov Deborah LaRose, Purchasing Agent Vermont Department of Building and General Services

109 State Street

Montpelier, VT 05609-3001

Phone: 802-828-4635

Deborah.LaRose@Vermont.gov

12.)

Amendment to Agreement

a. All amendments to this AGREEMENT shall be in writing.

b. Amendments that affect NEATO shall be executed by the same parties who executed the original AGREEMENT, or their successors in office.

c. Any amendment to state/ tribe-specific clauses shall apply only to the respective state/tribe and shall be executed by the MANUFACTURER and the affected state/tribe.

13.)

No Assignment or Transfer or Subcontracts The MANUFACTURER shall neither assign nor transfer any rights or obligations under this AGREEMENT without the prior written consent of NEATO. The MANUFACTURER shall not enter into any subcontracts for its performance of this AGREEMENT without express written approval of NEATO.

14.)

Indemnification

a. The MANUFACTURER agrees to indemnify and hold harmless NEATO, as well as the officers, agents, and employees of the state/tribe from all claims, losses or suits accruing or resulting from personal injury allegedly caused by use of MANUFACTURER’S formula furnished pursuant to this AGREEMENT, except claims, losses or suits arising from any negligence by NEATO, its officers, agents and employees or if applicable, subcontractors under this AGREEMENT.

b. NEATO shall give the MANUFACTURER prompt written notice of each claim or suit and full right and opportunity to conduct the defense of such claims or suits thereof, together with full information and all reasonable cooperation, except the MANUFACTURER need not assume the defense of any claims in which the state/tribe was negligent. The state/ tribe shall have full authority to conduct their own respective defense, negotiations and settlements and in such event, such state/tribe shall assume the costs thereof.

15.)

Execution of Agreement; Applicable Laws; Conflict of Terms

a. This AGREEMENT shall be deemed to have been executed and entered into separately in the Cherokee Nation, the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and shall be construed, performed, and enforced in all respects in the respective jurisdictions in accordance with the respective laws of the Cherokee Nation, the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

b. In the Cherokee Nation, Cherokee Nation law shall apply.

c. In Connecticut, Connecticut law shall apply.

d. In Maine, Maine law shall apply.

e. In Massachusetts, Massachusetts law shall apply.

f. In New Hampshire, New Hampshire law shall apply.

g. In Rhode Island, Rhode Island law shall apply.

h. In Vermont, Vermont law shall apply.

i. Each party shall perform its obligations hereunder in accordance with the terms and conditions of this AGREEMENT.

j. In the event of a conflict between the terms of this AGREEMENT and the terms of the state/tribe-specific clauses in the Appendices, the Appendices applicable to the respective state/tribe shall control.

16.)

Appendices

a. Appendix A, comprises federal requirements for Infant Formula Rebate Agreements and is incorporated herein by reference.

b. Appendix B, standard clauses for the Cherokee Nation contracts, is attached hereto and is hereby made part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and the Cherokee Nation.

c. Appendix C, standard clauses for Connecticut contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and Connecticut.

d. Appendix D, standard clauses for Maine contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and Maine.

e. Appendix E, standard clauses for Massachusetts contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and Massachusetts.

f. Appendix F, standard clauses for New Hampshire contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and New Hampshire.

g. Appendix G, standard clauses for Rhode Island contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and Rhode Island.

h. Appendix H, standard clauses for Vermont contracts, is attached hereto and is hereby made a part of this AGREEMENT as is set forth fully herein in reference to the AGREEMENT between the MANUFACTURER and Vermont.

17.)

Audit

a. Each state/ tribe shall allow the MANUFACTURER to audit such records or documents necessary to verify the accuracy of monthly invoices during normal business hours subject to time, place and manner requirements established by the state/tribe. Any claim arising from such an audit shall not be based on statistical inference. In the event that a claim submitted by the MANUFACTURER for billing errors is disputed by a state/tribe, the MANUFACTUER and the state/ tribe shall agree upon an independent auditor to review the claim and determine its validity. The MANUFACTURER shall be responsible for costs associated with any audit or claim.

b. Due to confidentiality requirements of state, tribe and federal law, the MANUFACTURER shall not have access to actual or archived documents or other confidential records that identify WIC applicants, participants, and/or household members in any way per 7 CFR §246.26(d)(1)(i). Also due to confidentiality requirements, the MANUFACTURER shall not have access to any information about a vendor that individually identifies the vendor, except for the vendor’s name, address, phone number, website, email, store type, and authorization status per 7 CFR § 246.26(e).

c. For records audited for any fiscal year, the MANUFACTURER shall provide the state/tribe a complete report and any management letter related to any audit within one hundred and twenty (120) days following the end of a fiscal year.

d. The MANUFACTURER shall provide the state/ tribe with its audit standards, guides and audit plan for conducting the audit thirty (30) days prior to conducting the audit.

18.)

Costs for Special Reports Should the MANUFACTURER request any special reports, data or information from any state/tribe, beyond that provided in the monthly invoice or as described below in section 19, the state/tribe reserves the right to charge the MANUFACTURER for all costs associated with providing such special reports, data or information. Any charges shall be agreed upon in writing by the state/tribe and the MANUFACTURER prior to the execution of the requests for such reports.

19.)

Supporting Data Each state/ tribe shall provide the MANUFACTURER with a monthly report specifying the number of units of infant formula issued and redeemed during the month, as well as mutually agreed upon supporting documentation to verify the accuracy of the monthly invoice. Only those records which are directly related to monthly billing and which are for current federal fiscal year at the time of the request shall be provided; client confidentiality must be maintained. If requested, NEATO shall supply the MANUFACTURER with a list of approved vendors prior to the effective date of the AGREEMENT.

20.)

Maintenance of Books and Records In addition to the provisions of any state/tribe’s individual, specific or particular requirements, the MANUFACTURER shall maintain all books and records pertaining to performance under this AGREEMENT until final audit of state/tribe records of the funding of this AGREEMENT, or until such time as federal provisions permit the records to be discarded.

21.)

Americans with Disabilities Act The MANUFACTURER shall comply with the Americans with Disabilities Act, Public Law 101-336, as applicable.

22.)

Review of Progress and Performance Any state/tribe and the MANUFACTURER shall meet, as requested by either party, to review progress and performance of the AGREEMENT; this may include any concerns regarding billing procedures. Any request for meeting more than once in a three (3) month period must be agreed to by the state/tribe. Phone and email contact for routine business, by either party, is allowed.

23.) Use Of WIC Acronym and Logo MANUFACTURER acknowledges that the WIC Acronym and the WIC Logo are service marks owned by the Department of Agriculture (USDA), and that all rights therein and goodwill pertaining thereto belong exclusively to USDA.

MANUFACTURER shall not use these service marks in any manner on its goods or their containers or packaging or on tags or labels affixed thereto. MANUFACTURER also shall not use the WIC Logo in advertising or other promotional materials (collectively: “advertising”).

MANUFACTURER shall not use the WIC Acronym in advertising in any manner that is likely to cause confusion, mistake, or deception as to the affiliation, connection, or association of MANUFACTURER with the WIC program, or as to the sponsorship or approval of MANUFACTURER’S goods, services, advertising, or commercial activities, including nutritional message(s), by the WIC Program, USDA, or the State agency.

MANUFACTURER shall include the following statement with any use of the WIC Acronym in advertising: “WIC is a registered service mark of the U.S. Department of Agriculture for USDA’s Special Supplemental Nutrition Program for Women, Infants, and Children.”

24.) Execution of the Agreement in Parts

a. The Commonwealth of Massachusetts shall assume responsibility for the limited purpose of preparing this AGREEMENT for execution by signature of each party.

b. This AGREEEMENT shall be executed in parts, as follows:

1. Eight (8) original contracts shall be prepared, one for each party.

2. Each such original shall contain eight (8) identical signature pages, containing areas for all eight (8) parties to execute by signature of an authorized person or duly authorized designee.

3. Each party shall execute its respective section in each of the eight (8) signature pages.

4. This AGREEMENT shall be executed by each signatory using BLUE INK in all cases.

5. Each party shall return all originals of the contract, including all signature pages, to the Commonwealth of Massachusetts, which shall collate the executed contracts and distribute a fully executed original to each party. The Massachusetts contact for this limited purpose shall be:

Beth Wilson-Lampro Massachusetts Department of Public Health WIC Nutrition Program, 6th floor 250 Washington Street Boston, MA 02108

Telephone: 617.624.6107

Beth.wilson@mass.gov

c. The Commonwealth of Massachusetts shall distribute one (1) complete original AGREEMENT containing all provisions and appendices, together with a complete set of original execution pages from all eight (8) parties, to each party, upon receipt of all such signature documentation from each party.

d.

Each such executed original AGREEMENT shall have the same authority as the other seven (7) original AGREEMENTs.

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IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be duly executed by an individual with legal authority to obligate the party:

CHEROKEE NATION

BY: Cherokee Nation

Chuck Hoskin Jr., Principal Chief

DATE: ________________________________

CONNECTICUT

BY: Connecticut Department of Public Health

Deidre S. Gifford, MD, MPH, Acting Commissioner

DATE: _________________________________

MAINE

BY: Maine Department of Health and Human Services

Benjamin Mann, Deputy Commissioner of Finance

DATE: _________________________________

MASSACHUSETTS

BY: Massachusetts Department of Public Health

Eileen Sullivan, Chief Operating Officer

NEW HAMPSHIRE

BY: New Hampshire Department of Health & Human Services

Lisa Morris, Director, Division of Public Health Services

RHODE ISLAND

BY: Rhode Island Department of Health

Dr. Nicole Alexander-Scott, Director of Health

VERMONT

BY: Vermont Department of Buildings and General Services

Jennifer Fitch, Acting Commissioner

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MANUFACTURER

BY: XXXX.

{Name}, {Title}

STATE OF: ________________

COUNTY OF: ________________

The foregoing instrument was acknowledged before me this ______ day of _______, 2021 by

Notary Public Signature

Notary Public/Justice of the Peace

My Commission Expires:

NEATO INFANT FORMULA REBATE DRAFT AGREEMENT