North+Dakota+WIC+Purchase+Agreement+-+signed.pdf

Rev PUR mlc_112017.4

PURCHASE AGREEMENT

This Purchase Agreement (“Agreement”) is made and entered by and between the North Dakota State Procurement Office and North Dakota WIC behalf of its locations listed in this Agreement (“Customer”), having its principal place of business at 600 East Boulevard, Dept #301, Bismarck, ND 58505 and HemoCue America, a division of Radiometer America, Inc.

(“HemoCue”) having its principal place of business at 250 South Kraemer Blvd., Mailstop: B1.SW.11, Brea, CA 92821.

1. Introduction. HemoCue is a medical device distributor specializing in analyzer systems (consisting of analyzer instruments and disposable microcuvettes) for point-of-care testing.

2. Cooperative Purchasing. This contract is a cooperative purchasing contract established pursuant to N.D.C.C § 54-44.4-

13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C § 39-04.2, and the International Peace Garden (hereafter known as “Ordering Agencies”). Participation in this open-ended contract is not mandated; therefore, the estimated volume of this contract is not known. HemoCue may contact the Procurement Officer for assistance in determining whether an entity is eligible to purchase under this contract.

3. Effective Date and Term. Unless terminated pursuant to Section 9 hereof, the term of this Agreement shall commence on the date that the last authorized signature is affixed (the “Effective Date”) and expire three (3) full years thereafter (the “Term”). The parties may extend the Term of this Agreement via an Amendment signed by both parties.

4. Pricing. Customer shall purchase the microcuvettes and/or other products (each a “Product”) set forth in the table reflected in Exhibit A attached hereto (the “Product Table”) at the price(s) set forth in the “Discount Price” column of the Product Table (the “Discount Price” per Product). Products purchased by Customer not listed in the Product Table shall be at HemoCue’s then current MSRP for such Product. Customer shall purchase the Products for its own use and not for resale or distribution.

The WIC locations that are eligible to purchase the Products listed in and pursuant to the terms and conditions of this Agreement are listed in Exhibit B hereto. Additional WIC locations may be added by and after a thirty (30) day written notice of such addition by Customer to HemoCue and has obligated itself to be bound by the terms and conditions of this Agreement without any exception or alteration.

5. Order Commitment. Customer agrees to purchase, during each year of the Term, 100% of Customer’s clinical volume of each Product set forth in the Product Table. Customer acknowledges that the Discount Price reflects Customer’s commitment to satisfy the clinical volume Commitment hereunder for each Product during each year of the Term.

6. Order Fulfillment. HemoCue shall use its commercially reasonable efforts to make shipments to Customer of Products on or before each requested shipment date. Customer’s sole and exclusive remedy for HemoCue’s failure to deliver Products shall be to cancel its purchase order. HemoCue reserves the right to change and to discontinue any of the Products by providing thirty (30) days prior written notice to Customer. Customer purchase orders shall not contain any terms or conditions that are inconsistent with this Agreement. Any inconsistent terms contained in Customer purchase orders are hereby objected to and rejected.

7. Payment Terms. Based on approved credit (which shall be determined by HemoCue in its sole discretion), Customer shall pay HemoCue invoices within 30 days of invoice date. For all invoices unpaid after thirty (30) days, a 1.5% service charge may be added each month (18% per annum) at the discretion of HemoCue. Secondly, HemoCue, within its sole discretion, may require future orders by Customer to be paid in full in advance of shipment of the order by HemoCue.

HemoCue reserves the right to withhold shipment of Products in the event Customer is in default of its payment obligations. Customer shall remit payments to Customer shall remit payments to: HemoCue America / Radiometer America, 32669 Collection Center Drive, Chicago, IL 60693-0326.

8. Shipping Terms. HemoCue will ship products in accordance with its standard shipping schedule to locations identified by Customer. All shipments are F.O.B. shipping point, Joliet, IL, USA, or such other shipping point to be designated by HemoCue. Customer will pay for shipping and handling charges, which will be added to each invoice.

Upon shipment, Customer is responsible for theft or other risk of loss of Products.

CG21.001

9. Product Returns. In the event that customer should have the need to return any item back to HemoCue, customer must contact our customer service to receive RGA#. Returns without prior HemoCue authorizations will not be accepted.

Cuvettes, controls and calibration materials are non-refundable. Any product shipped to customer in error will be accepted for return. Any items shipped to customer because of error on customer part such as, wrong item number, over ordering, discontinued use, outdated, etc. are not returnable for credit. Authorized returns of instruments will not be accepted after 30 days from invoice date. Returns will not be accepted via C.O.D./collect. All returned items must be received in resalable condition.

10. Termination.

a. Each party shall have the right to terminate this Agreement upon thirty (30) days’ written notice if the other party is in breach of any material obligation under this Agreement and the breaching party fails to remedy such breach within such notice period.

b. Each party shall have the right to terminate this Agreement immediately upon written notice in the event that the other party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of the assets, or ceases to conduct business or where an equivalent act to any of the above occurs under the laws of the jurisdiction of the affected party.

c. No termination of this Agreement shall release either party from paying any amount which may then be owed to the other party.

11. Warranty. HemoCue warrants to Customer that any Products provided hereunder shall be fit for the purposes and indications described in the operating manual/product insert when used in accordance with the directions in the operating manual/product insert, and HemoCue’s sole obligation and Customer’s exclusive remedy for breach of any warranty shall be that, at HemoCue’s sole option, HemoCue will repair or replace any Products which do not conform to such warranty, or refund the purchase price. The Analyzer is warranted for a period of two (2) years. Customer acknowledges that it is important to properly clean and maintain the Analyzer in accordance with instructions in their product package inserts and operating manuals. During the Analyzer warranty period, HemoCue will provide parts and service to repair any Analyzer without additional cost, unless such parts or service are required because of Customer’s negligence, abuse, alterations or improper maintenance or use of the Analyzer, in which case Customer shall pay HemoCue its standard prices charged to other customers for parts and service at that time. Use of unapproved parts or products will void the warranty and will not be supported under any service arrangement with HemoCue. Unless a product is used in accordance with its instructions, these warranties are void and of no effect. HEMOCUE DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS

FOR A PARTICULAR PURPOSE.

12. Warranty Service. For warranty service, Customer must obtain a Return Goods Authorization Number (“RGA number”) from HemoCue in advance, before returning any Products to HemoCue.

13. Limitation of Damages. IN NO EVENT SHALL HEMOCUE HAVE ANY LIABILITY TO CUSTOMER FOR

ANY SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER

ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, TORT, OR OTHER LEGAL THEORY, EVEN IF HEMOCUE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT. This section shall not limit any loss to Customer resulting from fraud or other intentional or willful misconduct by HemoCue, breach of confidentiality obligations by HemoCue, or loss resulting from tangible property damage by HemoCue or personal injury by HemoCue.

14. Force Majeure. Neither party shall not be liable for any failure to perform under this Agreement due to strikes, lockouts, or other labor disturbances (legal or illegal), fires, floods or water damage, earthquake, riots, embargoes, governmental acts or orders, interruption of transportation, governmental actions, discontinuance of products, inability to obtain materials upon reasonable price or terms or any other cause beyond its control. In the event that an event of force majeure extends beyond ninety (90) days, Customer may terminate this Agreement by providing written notice to HemoCue.

15. Prevalence. This Agreement and its attached Exhibit(s) shall govern any purchases by Customer under this Agreement, and any conflicting or additional terms and conditions in Customer’s purchase orders (other than description and quantity of the product ordered) are hereby rejected.

16. Compliance with Laws. Each party agrees that it will comply with all applicable laws, rules and regulations that relate to the conduct of its businesses and the performance of its obligations under this Agreement.

17. Discounts. Any discount or other form of price reduction received by Customer under this Agreement is a discount or price reduction within the meaning of 42 U.S.C. Section 1320a-7b(b)(3)(A) of the Social Security Act. Customer may have an obligation to report or pass on such discount or price reduction to any state or federal program which provides cost or charge-based reimbursement to Customer for the items to which the discount or price reduction applies.

18. Excluded Provider. Each party represents and warrants that it has not been convicted of a crime related to health care and is not currently listed by a federal agency as debarred, excluded or otherwise ineligible for participation in federally funded programs (“Excluded Provider”). Each party shall notify the other within five days after it receives notice that the notifying party is an Excluded Provider. The party receiving the notice shall have the right to terminate this Agreement immediately upon receipt of such notice.

19. Confidentiality. HemoCue shall not use or disclose any information it receives from Customer under this agreement that Customer has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this agreement or as authorized in advance by Customer. Customer shall not disclose any information it receives from HemoCue that HemoCue has previously identified as confidential and that Customer determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of Customer and HemoCue to maintain confidentiality of information under this section continues beyond the Term of this Contract.

20. Complete Agreement. This Agreement contains the final and entire agreement between the parties, and they shall not be bound by any terms, statements, conditions or representations, oral or written, express or implied not contained herein.

This Agreement may not be amended except in a writing signed by Customer and HemoCue, and no right or obligation hereunder may be waived except in a writing signed by the waiving party. Any waiver of any default shall not constitute a waiver of any continuing or other default, whether similar or dissimilar.

21. Governing Law. This Agreement shall be governed by the internal laws of the state in which Customer resides By entering into this Contract, Customer does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. Customer does not waive any right to a jury trial. Each party shall bear its own fees and expenses, including attorneys' fees.

22. Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by electronic signature, facsimile transmission or by e-mail delivery of a ".pdf" format file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such electronic signature, facsimile or ".pdf" signature page were manually signed.

23. Publicity. Neither party shall use the name or logo of the other party or originate any publicity, news release, or other public announcement, whether written or oral, relating to this Agreement, to any amendment hereto or to any performance hereunder, without the prior written approval of the other party.

24. Notices. Any notices or communications required or permitted to be given to Customer hereunder shall be given in writing via first class mail or courier to Customer’s address set forth hereinabove, or via email or such other physical address of which Customer may inform HemoCue during the Term. Any notices or communications required or permitted to be given to HemoCue hereunder shall be sent in writing to HemoCue America, Attn: Contracts Department, 250 South Kraemer Blvd., Mailstop: B1.SW.11, Brea, CA 92821.

ACKNOWLEDGEMENT AND ACCEPTANCE:

The foregoing Agreement is hereby accepted as of the date hereof.

NORTH DAKOTA STATE PROCUREMENT OFFICE,

Authorized Representative NORTH DAKOTA WIC, Authorized Representative

Signature Signature

Print Print

Title Title

Date Date

HEMOCUE AMERICA, Authorized Representative

Signature

Print

Title

Date

Abigail Dschaak

Procurement Officer

1/30/2023

Dirk D. Wilke

Executive Director, Public Health

2/1/2023

Murray Masterson (Mar 5, 2023 14:14 PST) Murray Masterson

Murray Masterson

Mar 5, 2023

Sales Operations Director

EXHIBIT A

PRODUCT FEE SCHEDULE

Item # Description MSRP Discount

Price 121827 HemoCue® Hb 301 Analyzer (g/dL) $900.00 $500.00

111807 HemoCue® Hb 301 Microcuvettes (300/box) $447.00 $282.00

EXHIBIT B

North Dakota WIC Program Directory – July 2022

AGENCY ADDRESS CITY, ST, ZIP

ADAMS COUNTY

West River Health Services

1000 Highway 12 Hettinger, ND 58639

BARNES COUNTY - see City-County Health Department

BENSON COUNTY - see Lake Region District Health Unit

BILLINGS COUNTY - see Southwestern

BOTTINEAU COUNTY - see First District Health Unit

BOWMAN COUNTY - see Southwestern

BURKE COUNTY - see First District

BURLEIGH) CUSTER BISMARCK WIC

(Burleigh, Kidder) Custer Health WIC

1600 E Interstate Avenue, Suite 105

Bismarck, ND 58501

CASS COUNTY

Fargo/Cass WIC

1240 25th Street South Fargo, ND 58103

CENTRAL VALLEY HEALTH UNIT

(Stutsman and Logan Counties) Central Valley Health WIC

122 2nd ST NW Jamestown, ND 58402-

Dickey and LaMoure Counties Contact CVHU WIC, Jamestown

CITY-COUNTY HEALTH DISTRICT 415 2nd Ave NE, Ste 101 Valley City, ND 58072

CUSTER HEALTH WIC UNIT

(Morton, Grant, Mercer, Oliver, and Sioux Counties)

403 Burlington St SE Mandan, ND 58554

DIVIDE COUNTY - see Upper Missouri

DUNN COUNTY - see Southwestern

EDDY COUNTY - see Lake Region

EMMONS COUNTY

Emmons County Public Health WIC

118 Spruce Ave, PO Box

Linton, ND 58552

FIRST DISTRICT HEALTH UNIT

(Bottineau, Burke, McHenry, McLean, Renville, Sheridan, & Ward Counties)

Minot Air Force Base Kenmare and Burke County Bottineau County McHenry County

801 11th Avenue SW, P.O. Box 1268

194 Missile Ave 113 1st Ave NW,P.O. Box 836 314 5th Street West 112 Main St S

Minot, ND 58702

Minot AFB, ND 58705 Kenmare, ND 58746 Bottineau, ND 58318 Towner, ND 58788

McLean County Renville County Sheridan County

712 5th Ave , P.O. Box 1108 205 Main Street E, P.O. Box 68 215 East 2nd Street, P.O. Box 410

Washburn, ND 58577 Mohall, ND 58761 McClusky, ND 58463-0405

GOLDEN VALLEY COUNTY - see Southwestern District Health Unit

GRAND FORKS COUNTY

Grand Forks County WIC Program

Grand Forks Air Force Base

1726 S. Washington St.

Suite 57&58

575 Holzapple, Building 207

Grand Forks, ND 58201

Grand Forks AFB, ND 58204

GRANT COUNTY - see Custer District

GRIGGS AND NELSON COUNTIES

Cooperstown Medical Center

Nelson County

1200 Roberts Ave

210 B Avenue West, Suite 304

Cooperstown, ND 58425-7101

Lakota, ND 58344-7410

HETTINGER COUNTY - see Southwestern District Health Unit

KIDDER COUNTY - see Burleigh County

LAKE REGION DISTRICT HEALTH

UNIT

(Ramsey, Benson, Eddy, Pierce, Wells, Foster and Towner Counties)

524 4th Avenue NE #8 Devils Lake, ND 58301

LAMOURE COUNTY - see Dickey/LaMoure Counties

LOGAN COUNTY - see Central Valley

MCHENRY COUNTY - see First District

MCINTOSH COUNTY

Ashley Medical Center

612 Center Avenue North PO Box 450

Ashley, ND 58413-0450

MCKENZIE COUNTY - see Upper Missouri District Health Unit

MCLEAN COUNTY - see First District

MERCER COUNTY - see Custer District

MORTON COUNTY - see Custer District

MOUNTRIAL COUNTY - see Upper

NELSON COUNTY - see Griggs and Nelson Counties

OLIVER COUNTY - see Custer District

PIERCE COUNTY - see Lake Region

RAMSEY COUNTY - see Lake Region

RANSOM COUNTY

(Ransom and Sargent Counties) Ransom County Public Health

Sargent: 316 Main St, Forman ND 58032 Oakes (no mail), clinic at 115 S 5th St, Oakes

404 Forest Street, P.O.

Box 89

Lisbon, ND 58054

RENVILLE COUNTY - see First District

RICHLAND COUNTY

Richland County Public Health WIC

413 3rd Avenue North Wahpeton, ND 58075

ROLETTE COUNTY

(Rolla and Rolette) Rolette County Public Health WIC

211 1st Ave NE P.O. Box 1032

Rolla ND 58367

SHERIDAN COUNTY - see First District

SIOUX COUNTY - see Custer District

SLOPE COUNTY - see Southwestern

SOUTHWESTERN DISTRICT HEALTH

UNIT

(Stark, Billings, Bowman, Dunn, Golden Valley, Hettinger, and Slope Counties)

528 21st St. W Dickinson, ND 58601

SPIRIT LAKE SIOUX NATION

WIC Program

816 3rd Ave N P.O. Box 217

Fort Totten, ND 58335

STARK COUNTY – see Southwestern

STEELE COUNTY – see Traill County STUTSMAN COUNTY – see Central Valley Health Unit

TOWNER COUNTY – see Lake Region

TRAILL COUNTY

Sanford Medical Center Mayville

42 6th Avenue SE Mayville, ND 58257

TURTLE MOUNTAIN BAND OF

CHIPPEWA

(Turtle Mountain Indian Reservation)

Rolette County (Dunseith) 117 Main Street NE, Dunseith, ND 58329

Quentin Burdick Hospital 1300 Hospital Loop

Belcourt, ND 58316

UPPER MISSOURI DISTRICT HEALTH

UNIT

(Williams, Divide, McKenzie, and Mountrail Counties)

110 W. Broadway, Suite

Williston, N.D. 58801

WALSH COUNTY

Walsh County Public Health WIC

Pembina County

638 Cooper Ave, Ste 3 Grafton, ND 58237

Pembina County WIC 301 Dakota Street West #12 Cavalier, ND 58220

WARD COUNTY - see First District

WELLS COUNTY – see Lake Region

WILLIAMS COUNTY - see Upper

WIC Program Department of Health and Human Services Family Health and Nutrition Unit

600 E Boulevard Ave Dept 301

Bismarck ND 58505-

Accounting Office ND Department of Health

600 E Boulevard Ave Dept 301

Bismarck ND 58505-

Standing Rock Sioux Tribe Standing Rock Sioux Tribe WIC Program

139 Proposal Ave P.O. Box 437

Fort Yates, ND 58538

Three Affiliated Tribes 404 Frontage Rd New Town, ND 58763

North Dakota WIC Purchase Agreement PE Final Audit Report 2023-03-05

Created: 2023-03-03

By: Sara Dayton (sara.x.dayton@hemocue.com)

Status: Signed

Transaction ID: CBJCHBCAABAA4cT8SfBQ392kjJySQmRs9wufl7YcFkG4

"North Dakota WIC Purchase Agreement PE" History Document created by Sara Dayton (sara.x.dayton@hemocue.com) 2023-03-03 - 10:24:23 PM GMT- IP address: 136.226.66.246

Document emailed to Murray Masterson (murray.a.masterson@hemocue.com) for signature

2023-03-03 - 10:26:16 PM GMT

Email viewed by Murray Masterson (murray.a.masterson@hemocue.com) 2023-03-05 - 10:13:34 PM GMT- IP address: 104.47.58.126

Document e-signed by Murray Masterson (murray.a.masterson@hemocue.com) Signature Date: 2023-03-05 - 10:14:06 PM GMT - Time Source: server- IP address: 136.226.67.18

Agreement completed.

2023-03-05 - 10:14:06 PM GMT