agreement_template_final.docx

Minnesota Department of Administration Office of State Procurement 50 Sherburne Avenue, Suite 112 Administration Building, St. Paul, MN 55155 Phone: 651.201.2420

[Vendor Name] MMCAP Infuse Agreement: xxxxxxxxxx Prepared on:

PREFIX A

Definitions and Acronyms Are attached and incorporated into the Agreement Definitions

1. Administrative Fee: Means three percent (3%) of the invoiced price for all sales to MMCAP Infuse Members.

2. Agreement, Contract, or Vendor Contract: Means the resulting agreement that is reached between MMCAP Infuse and the Vendor.

3. Contract Pricing: Means the price Vendor will provide Contracted Items to MMCAP and its Membership, generally it will be provided by MMCAP Infuse to Vendor and based on agreements MMCAP Infuse has with MMCAP Infuse Suppliers.

4. Contract(ed) Items:

A. Products: Means all products offered by the Vendor in this Agreement; generally, unless stated otherwise when referencing Products, it will mean MMCAP Infuse Direct Contract Items.

i. MMCAP Infuse Direct Contract(ed) Item(s): Any Contracted Item for which MMCAP Infuse has direct contract with and MMCAP Infuse Supplier and the Vendor is distributing the Contracted Item(s).

ii. Non-Contract Product: Any Contracted Item that neither MMCAP Infuse nor the Member has a direct contract for with the manufacturer or supplier.

B. Services: Services for Product distribution will not be itemized or charged separately.

5. Days: (Not required to be capitalized) Unless otherwise specified in this Agreement, all references to days will be calendar days.

6. Drop Shipments: Products ordered by the Members through the Vendor and shipped directly to the Members from the manufacturer/product supplier. The manufacturer/product supplier notifies and bills the Vendor, who then invoices and receives payment from the Member.

7. Facility: Means the authorized departments, facilities, and other municipalities approved by Member and MMCAP Infuse to access and use this Agreement.

8. Government Unit: Any entity as defined by Minnesota Statute 471.59, except for agencies of the United States (federal).

9. Group Purchasing Organization (GPO): Means as defined in U.S. Title 42, The Public Health and Welfare, Section 1320.

10. Influenza Vaccine: Vaccines that protect against infection by influenza viruses. New versions of the vaccines are developed annually.

11. Member: Means an approved MMCAP Infuse State or other Government Unit that has executed a membership application and Member agreement with MMCAP Infuse.

12. Membership: Means the joint power cooperative comprised of the MMCAP Infuse authorized States, Facilities, and other Government Units.

13. MMCAP Infuse Suppliers: Any manufacturer or supplier MMCAP Infuse has a direct agreement with, which provides MMCAP Infuse and its Membership access to MMCAP Infuse Direct Contracted Items.

14. Next Scheduled Delivery Day: The day agreed upon by the Vendor and the Member for delivery of Products. For some Members, the Next Scheduled Delivery Day may not necessarily denote that the delivery will be made within 24 hours.

15. Order Form: Means the document or electronic platform Facility or Member utilizes to obtain Contracted Items.

16. State: Means one of the recognized fifty (50) states of the United States of America.

17. Supplier: Means a manufacturer or supplier of products to Vendor for distribution to MMCAP Infuse Member Facilities.

18. Vendor: As identified on the cover page and opening paragraph of page 2.

AGREEMENT FOR MMCAP INFUSE NO.

THIS Agreement is entered into as of the Effective Date by and between the State of Minnesota acting through its Commissioner of Administration (“Minnesota”) on behalf of MMCAP Infuse (“MMCAP Infuse”) and [Vendor] whose designated business address is [Vendor address] (“Vendor”).

Contract Term:

1. Effective Date: September 1, 2024 or the date MMCAP Infuse obtains all required signatures as required under Minnesota Statute, whichever is later. The Vendor must not begin work under this Agreement until it has been notified by MMCAP Infuse to begin the work.

2. Expiration Date: August 31, 2026, or until all obligations have been satisfactorily fulfilled as determined by MMCAP Infuse, whichever occurs first.

3. The Contract Term may be extended upon mutual written agreement of MMCAP Infuse and Vendor.

AGREEMENT COMPONENTS

The following components are the Agreement and all referenced Prefix and Attachments, which are attached and incorporated into this Agreement.

1. Prefix A: Definitions

2. Attachment A: Additional Scope of Work

3. Attachment B: Discounts

4. Attachment C: Additional Services

5. Attachment D: Required Reporting

6. Attachment E: Returned Goods Policy

7. Attachment F: MMCAP Infuse Suppliers

8. Attachment G: Annual Influenza Vaccine Forms

9. Attachment H: MN Statutory Language

10. Exhibit A: Account Set Up Form

ARTICLE I

PRICING

1.1 Pricing. Contracted Items except for Influenza Vaccines will be charged to members at the contracted rate set forth by MMCAP Infuse and the MMCAP Infuse Supplier. Chargebacks with the MMCAP Infuse Supplier must be performed to ensure products are invoiced at the price MMCAP Infuse has agreed upon with the MMCAP Infuse Supplier for Contracted Items. No mark up or cost-plus models will be allowed under this agreement. Only when MMCAP Infuse does not have a vaccine on contract (Non-Contracted Products) and Vendor has it in its distribution center may the Vendor extend the lesser of its negotiated price or WAC to Member.

A. Should MMCAP Infuse Suppliers offer special pricing tiers to Members, Vendor will apply these tiered pricing arrangements to the Members who qualify.

B. Influenza Vaccines pricing will be negotiated, finalized and amended into this agreement on an annual basis. Unless mandated by an MMCAP Infuse Supplier, Influenza Vaccines will not be required to follow the chargeback process.

1.2 Member Fees. In the event a Member requires a fee be added to the Agreement price (e.g., member levied procurement fee or system use fee), that fee must be added on top of the Contract Pricing and Vendor may not absorb the fee. Vendor must not pay a Member levied fee without first collecting the fee through increased Contract Pricing for the applicable Member. The fees will be set aside and paid to the Member as detailed in a form provided and approved by MMCAP Infuse.

1.3 Competitive Pricing. If MMCAP Infuse is made aware and determines during the Contract Term, Vendor is offering better Contract Pricing and/or Contracted Items to another GPO or Government Unit purchasing similar volume of similar products, Vendor will have ten (10) days to work with MMCAP Infuse to amend this Agreement to provide MMCAP Infuse the same Contract Pricing and/or Contracted Items.

1.4 Product Dating. All Products except for Influenza Vaccines supplied to Members must have an expiration date/usability date of at least twelve (12) months from the date of acceptance of the Product by the Member. For Products that have an expiration dates less than twelve (12) months, Vendor will discount the Product as follows: ten percent (10%) at 4 months expiry, twenty-five percent (25%) at 90 days expiry and fifty percent (50%) at 30 days or less expiry.

A. Influenza Vaccine: Influenza vaccines should have the maximum expiration dating given from the manufacturer for the accompanying influenza season.

1.5 Product Outages. See Attachment A.

1.6 Product Discontinuation. See Attachment A.

1.7 Failure to Provide Service. See Attachment A.

1.8 Disputed Claims. If a Vendor disputes a claim from Member or MMCAP Infuse, it will be resolved in accordance with this Agreement.

ARTICLE II

PAYMENT AND DELIVERY

2.1 Conditions of Payment. All Contract Items provided by the Vendor under this Agreement must be performed to the satisfaction of MMCAP Infuse and the Member, and in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations. The Vendor will not receive payment for work found by MMCAP Infuse to be unsatisfactory or performed in violation of federal, state, or local law.

2.2 Payment Method. Vendor will accept check or Electronic Funds Transfer (EFT), P-Cards, and credit cards, as a payment method. Member will initiate the EFT process with its financial institution.

2.3 Payment Term. For all Products except for Influenza Vaccines, payment will be made within thirty (30) days from date of purchase, as shown on the invoices; for Influenza Vaccines, payment will be made within sixty (60) days from the date of purchase, as shown on the invoices.

A. If the due dates fall on a weekend or local, state, or federal holiday, payment will be made by the next business day.

B. Federal Exercise Tax is due to Vendor on all vaccines of which are required to carry this tax. This tax is not exempt for government facilities.

2.4 Federal Funds. Payments under this Agreement may be made from federal funds. The Vendor is responsible for compliance with all federal requirements imposed on these funds and accepts full financial responsibility for any requirements imposed by the Vendor’s failure to comply with federal requirements.

2.5 Shipment for Products. Vendor must distribute and deliver the Contracted Items covered under this Agreement to all Members, including the states of Alaska and Hawaii. If the Member account is in good standing, the Vendor will at no time, refuse to deliver to any Facility without the prior written approval by the Member and MMCAP Infuse. Delivery for Products under this Agreement shall be FOB Destination, freight prepaid is allowed, unless otherwise agreed to by Vendor and Member. Vendor will not add any fuel surcharges to the purchase under this Agreement. Notwithstanding the foregoing, emergency orders, rush orders, orders for products not regularly stocked by Vendor’s local servicing distribution center, products drop shipped from Vendor’s contracted supplier, and orders not regularly scheduled are subject to an added shipping and handling charge determined by Vendor and disclosed to Member before a purchase is made.

A. Delivery Schedule: All deliveries will be made next day (including Alaska and Hawaii), unless communicated otherwise. Same day delivery is not available unless the service can be available through emergency delivery. Orders received Monday through Thursday will be delivered the following day. Orders received Friday-Sunday will be delivered the next scheduled delivery day. Vendor will provide a Holiday Schedule to each Member and MMCAP Infuse throughout the Term.

i. The table below identifies the distribution center local cut-off time at each of Vendor’s facilities:

B. Hazardous Materials: Vendor will only ship hazardous materials as allowed by the appropriate government regulations.

C. Damaged Products: All damaged Products will be reported to Vendor’s customer service department and applicable credits will be issued within ten (10) days from date of notification of the damaged item.

D. Lost Products: All lost Products will be reported to Vendor’s customer service department. Vendor will issue credit within ten (10) days of notification of lost Product; alternatively, re-shipment of missing Product will occur immediately after notification.

E. No Minimum Order Requirements: During the Agreement, there will be no minimum order requirements or extra charges assessed to orders, regardless of order size or payment amount.

F. Special Conditions for Products: If applicable to the Products offered under this Agreement, Vendor will maintain appropriate temperatures and environmental conditions in accordance with manufacturer requirements for delivery of the Products to the Members. All refrigerated Products will be shipped in returnable coolers or disposable coolers with appropriate packaging to maintain the required temperature range. Products requiring refrigeration will be clearly marked as such. Temperature monitors will be used if they are required by the manufacturer. If Member refuses Products that have been inadequately packaged, the Member will notify Vendor’s customer service department to log the complaint. Any costs associated with the return of Product due to improper packaging or transport, will be at the expense of the Vendor.

G. Cancellation: Before terminating an order, Vendor will provide notice to the Member in writing and the reason for the termination.

2.6 Drop Shipments. The Vendor will act as a conduit to expedite and simplify the ordering and payment of drop shipped Products. Products requiring Drop Shipment must be easily identified in Vendor’s ordering system(s). Timelines for the delivery of Drop Shipment Products will be made per the request of the Member (e.g., expedited shipment, standard delivery, etc). Vendor will place Drop Shipment requests with manufacturers or suppliers within one (1) business day of receiving the request from the Member. In the event that Vendor is unable to fill a Member’s order for an MMCAP Infuse Direct Contract Product, Vendor will have the Product drop shipped directly from the manufacturer. Member will not be assessed a fee for this shipment.

2.7 Emergency Order, Placement and Delivery. Vendor’s procedure for placement of emergency orders during non-business hours will be made available to each Member upon startup of service. Each Member will be provided three (3) emergency orders per calendar year free of charge. Any additional emergency orders beyond three per year that are free will be assessed a fee as detailed in Attachment B. An emergency order is defined as one necessary for immediate and specific patient care which falls outside the normal order and delivery parameters. Using air and ground options, Vendor will exhaust all resources in delivering emergency Product in the most timely and efficient methods. Air services may be used at the discretion of the Vendor based on the severity of the emergency situation. Vendor will make a good faith effort to make emergency deliveries within twelve (12) hours following receipt of the order; emergency deliveries to Alaska and Hawaii will likely take longer.

2.8 Delivery for Services. Not applicable.

2.9 Invoicing. Vendor will submit an invoice after shipment of each order.

A. Invoice Fields: At a minimum, Vendor’s invoice will contain the following fields:

i. Member name and Vendor-assigned account number for the Member;

ii. Invoice line number and Member’s order number (Member must provide an order number at the time of order for this to appear on Vendor’s invoice);

iii. Bill to and ship to address;

iv. Invoice date;

v. Vendor’s SKU item number, Contracted Item name/description and packaging as associated with NDC number (if applicable to this Agreement);

vi. Unit price, quantity ordered, quantity shipped, extension (unit price multiplied by the quantity shipped), and total invoice price; and B. Invoice Rounding: Vendor agrees to round down if the third digit after the decimal is four (4) or less. Vendor agrees that any rounding will occur at the Member invoice unit price.

C. Invoice Disputes: Member will notify Vendor of any known dispute with an invoice within thirty (30) days from receipt of the invoice. If all, or a portion of the disputed invoice is found to be in error, Vendor shall issue a credit and/or adjust the original invoice to the Member appropriately and provide a corrected invoice. Where the above is prohibited by a Member state’s applicable law(s), the Vendor shall comply with requirements of that state’s law(s) related to disputed invoices. Vendor will make a good faith effort to resolve known disputes related to Agreement pricing within thirty (30) days of notice of the dispute. This clause will in no way be deemed a limitation on the parties, as it relates to the future auditing and/or correction of invoices.

i. In the event that applicable state law mandates set-off by a Member, such set-off rights shall be exercised only to the extent expressly set forth in the applicable statute.

2.10 Credits and Rebills. Vendor will process credits and rebills as notifications are received from a Member. In the case of an invoice dispute, Vendor will promptly issue credits/rebills, after the Dispute Resolution process set forth in this Agreement.

A. Vendor credits are valid until they are refunded, or the account has used payment.

B. In the event of a Facility closure, or other extreme event where the Member will not be making another purchase through Vendor, the Member may cash out its credit(s).

C. If directed by a Member, a credit can be transferred from one account to another account, provided both accounts share the same payer or (b) the credit/rebill is reversed and reissued to the secondary account.

D. The Vendor will take all commercially reasonable steps to ensure that credits that become available close to the end of the Member’s fiscal year, are activated for use by the Member no later than five (5) days before the end of the fiscal year.

E. Vendor’s credit memo will contain, but is not limited to the following information:

i original order number and invoice number;

ii itemized listing of the Contract Items affected;

iii any new invoices associated with the credit; and iv Net credit amount available to the Member.

B. Vendor’s rebill memo will contain, but not limited to the following information:

i Original purchase order ii Original Vendor invoice number iii Original invoice date iv Itemized listing of the product(s) affected v Credit memo associated with the rebill vi Reason(s) for the rebill (e.g., manufacturer chargeback denial, pricing error, etc.)

2.11 Price Audits and Corrections. In the event of a Contract Pricing error that is attributable to the Vendor, Vendor agrees to process credit/rebills for the past six (6) calendar months. When a Member or MMCAP Infuse discovers an error in pricing, they will notify Vendor.

2.12 Products Returned to the Vendor. Vendor will accept returned Products in accordance with the Return Goods Policy on Attachment E, unless applicable state land federal laws conflict, in which Vendor will comply with the applicable law.

2.13 Members’ EDI Transaction Sets. Vendor shall use best efforts to accommodate the requests of Members with respect to Vendor’s use of Electronic Data Interchange ANSI X12 Transaction Sets, including without limitation, Transaction Sets 810 (invoice), 820 (payment order/remittance advice), 832 (price/sales catalog), 850 (purchase order), 855 (purchase order acknowledgment), and 856 (advance ship notice/manifest). Requests for the same may also be made for these Transaction Sets translated into a readable format (i.e. Microsoft Excel).

2.14 Product Recalls. If any Product covered by this Agreement requires modification, is removed, or recalled by the Vendor, then Vendor will promptly notify MMCAP Infuse and the affected Members within three (3) days. Vendor agrees to comply with any process mandated by the FDA, or any other regulatory body if applicable, and will address the recall with each Member. Members will not incur costs for Product returns related to recalls. Vendor will issue credit for recalled Product.

2.15 Product Own Use Requirements. Product ordered by Members is intended to be expressly for Members’ own use and redistribution is not allowed. Should redistribution occur, Vendor reserves the right to notify MMCAP Infuse of this product redistribution and to discontinue sale of Products to such Member.

2.16 Pedigree Requirements and DSCSA. Vendor will have in place a mechanism reasonably acceptable to MMCAP Infuse and Suppliers that meets all states’ and federal pedigree legislation requirements for all Products from the point of receipt by Vendor from the Supplier until the time of shipment to Members throughout the term of this Agreement. If the Vendor is selling vaccines and pharmaceuticals to the Membership under this Agreement, Vendor will maintain DSCSA licensing standards to be classified as an Authorized Trading Partner (as defined by the FDA) and will only conduct business with other Authorized Trading Partners and will ensure all standards are met in regard to Product Verification (as defined by the FDA). If there is a licensing standard issue, the Vendor will provide written notification to MMCAP Infuse within five (5) days of becoming aware of the issue. The Vendor will not require a Global Location Number (GLN) for any Member that is only purchasing DSCSA-exempt products A. The Vendor will retain all serialized transaction information and transaction statement data per the requirements specified by the DSCSA, for a minimum of six (6) years regardless of whether the Member continues to utilize Vendor’s services. Access to the data will be provided to Members at no charge within the Ordering System or by contacting the customer service department. If the data must be received through the customer service department, Vendor will provide this information to the Member within twenty-four (24) hours of the request via unlocked electronic format. Vendor will also provide this information via EPCIS to any DSCSA data management service provider at no charge to the Member.

B. Vendor will comply with data interchange requests with respect to MMCAP Infuse’s contracted DSCSA data storage vendors.

C. NDC/UPN Bar Coding Implementation. Vendor acknowledges that national drug code (“NDC”) and universal product numbering (“UPN”) systems enhance standardization, product tracking and supply chain efficiencies through common use of standard product numbers or symbols. Vendor will implement any NDC and/or UPN systems reasonably adopted by MMCAP Infuse.

ARTICLE III

TERMINATION, CANCELLATION, AND REMEDIES

3.1 Cancellation. Either party may cancel this Agreement any time, without cause, upon thirty (30) days’ written notice to the other party. In the event of such a cancellation, the Vendor will be entitled to payment by the Membership, determined on a pro rata basis, for Contracted Items satisfactorily delivered or performed.

3.2 Termination for Cause. Either party may terminate this Agreement at any time on the basis the other party breached this Agreement. The moving party (“non-breaching party”) must provide written notice to the other party (“breaching party”) of the breach, which upon receiving, the breaching party then has thirty (30) days to cure the defects (the “cure period”). If, after the thirty (30) day cure period, the breaching party has not cured the defects, the moving party may terminate this Agreement after ten (10) subsequent days.

3.3 Termination for Insufficient Funding. MMCAP Infuse may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at a level sufficient to allow for the payment of the Contracted Items covered here. Termination must be by written or electronic mail notice to the Vendor. MMCAP Infuse is not obligated to pay for any Contracted Items that are provided after notice and effective date of termination. However, the vendor will be entitled to payment, determined on a pro rata basis, for Contracted Items satisfactorily performed to the extent that funds are available. Minnesota will not be assessed any costs, fees, or other charges if the Agreement is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. MMCAP Infuse must provide the Vendor notice of the lack of funding within a reasonable time of MMCAP Infuse receiving that notice.

A. For orders made by a Member, Vendor agrees to the applicable statutory terms of the applicable Member if the Member fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the Contracted Items.

3.4 Force Majeure. Parties will not be considered in default in the performance of their obligations in the Agreement to the extent that performance of any such obligations is prevented or delayed by acts of God, war, riot or other catastrophes beyond the reasonable control of the party. Force majeure will not apply to the extent that the act or occurrence could have been reasonably foreseen and reasonable action could have been taken to prevent the delay or failure to perform. A party claiming excuse of performance under this provision must provide the other party prompt written notice of the failure to perform, take commercially reasonable efforts to mitigate the damages caused to all parties, and take all necessary steps to bring about performance as soon as practicable.

3.5 Failure to Perform. Upon failure to perform, the following fees will be paid by Vendor:

A. Lack of Product loading. All Contract Items will be loaded, stocked, and viewable by all Members, or Vendor must pay the following fee to MMCAP Infuse: $125/day, not to exceed $12,500 per calendar year, until resolved.

B. Non-Contract Products Compliance. If Vendor sells an MMCAP Infuse Direct Contract Item as a Non-Contract Product and fails to meet the timeline in this Agreement to process credits and rebills, Vendor will pay MMCAP Infuse one percent (1%) of the total price for every Product identified.

C. Non-compliance with non-solicitation. Each time Vendor fails to comply with the non-solicitation requirements in this Agreement, Vendor will pay MMCAP Infuse $1,500/ violation.

3.6 Breach. In the event of a breach of this Agreement, MMCAP Infuse and Members reserve the right to pursue any other remedy available by law. Vendors may be removed from the Vendors list; suspended; or debarred from receiving a contract for failure to comply with terms and conditions of the Agreement.

3.7 Dispute Resolution. Vendor and Members will handle dispute resolution for unresolved issues using the following procedure.

A. Notification. Parties shall promptly notify each other and MMCAP Infuse of any known dispute and work in good faith to resolve such dispute within thirty (30) days.

B. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either the Member or Vendor may escalate the resolution of the issue to a higher level of management. Where escalation of the issue proves ineffective, either party may contact MMCAP Infuse. When escalated to MMCAP Infuse, a teleconference will be scheduled with MMCAP Infuse and the Vendor to review the dispute and develop a proposed resolution and plan of action.

C. Performance while Dispute is Pending. Notwithstanding the existence of a dispute the Vendor must continue without delay to carry out all of their responsibilities under the Agreement that are not affected by the dispute. If the Vendor fails to continue without delay to perform its responsibilities under the Agreement, in the accomplishment of all undisputed work, any additional costs incurred by MMCAP Infuse and/or Members as a result of such failure to proceed shall be borne by the Vendor.

D. No Waiver. This clause shall in no way limit or waive either party’s right to seek available legal or equitable remedies.

ARTICLE IV

MEMBERSHIP

4.1 Membership Listing. As new Members access the Agreement, Vendor will notify MMCAP Infuse of the complete list of Members monthly via email at: mmcap_infuse.contracts@state.mn.us. MMCAP Infuse reserves the right to add and remove Members during the Contract Term. Vendor is able to obtain a full list of MMCAP Infuse Members via the MMCAP Infuse website.

4.2 Non-Solicitation. During the term of this Agreement, Vendor will not solicit any Members or prospective Members to enter into or negotiate a separate contract or agreement for the same or substantially equivalent products and services offered in this Agreement without MMCAP Infuse’s prior written consent. The Vendor will not encourage, promote, or advertise other contracts to Members without MMCAP Infuse prior written consent. This includes but is not limited to offering to open accounts with other group purchasing organizations (GPOs) or cooperatives. Vendor is not prohibited from responding to a request for proposals issued by a Member that may include some products and services covered by this Agreement.

4.3 Orders. As a condition for purchasing under this Agreement, purchasers must be Members in good standing with MMCAP Infuse. Vendor may use their own Order Forms. To the extent that the terms of any form conflict with the terms of this Agreement, the terms of this Agreement supersede. All Contracted Products shall be listed in Vendor’s online ordering system. Vendor will not knowingly redirect Members to other equivalent products that are not in the financial interest of the Member except in the case where there are no equivalent products for the requested item available. Each Member will be responsible for payment for Contracted Items to the Vendor and MMCAP Infuse will not be liable for any unpaid invoice of any Member or Facility. Vendor agrees to invoice the Members as established in this Agreement.

A. The use of obtaining a Contracted Item from the Order Form constitutes a binding contract. All Products furnished will be subject to inspection and acceptance by the ordering entity after delivery. No substitutions or cancellations are permitted without written approval of the Member. Back orders, failure to meet delivery requirements, or failures to meet specifications in the Order Form and/or the Agreement authorizes the ordering entity to cancel the order, or any portion of it, purchase elsewhere, and charge the full increase in cost and administrative handling to the Vendor.

4.4 Termination of Individual Orders. Members may terminate, immediately or as identified by Member, individual Order Forms, in whole or in part, upon written notice to Vendor upon the occurrence of any of the following events:

A. The Member fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for Contracted Items to be purchased under the Order Form;

B. Federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of Contract Items under the Order Form is prohibited or the Member is prohibited from paying for the Contracted Items from the planned funding source; or C. Vendor commits any material breach of this Agreement or Order Form.

Upon receipt of written notice of termination, Vendor will stop performance under the Order Form as directed by the Member. If a standing Order Form is terminated, the Member must pay Vendor in accordance with the terms of this Agreement for goods delivered and accepted by the Member.

4.5 Jurisdiction and Venue of Orders. Upon completion of the Dispute Resolution process outlined in this Agreement, and solely with the prior written consent of MMCAP Infuse and the State of Minnesota Attorney General’s Office, the Member may bring a claim, action, suit, or proceeding against Vendor. The Member’s request to MMCAP Infuse to bring the claim, action, suit, or proceeding must identify the desired jurisdiction, venue, and governing law. As it applies to purchases made by a Member, nothing in the Agreement will be construed to deprive the Member of its sovereign immunity, or of any legal requirements, prohibitions, protections, exclusions, or limitations of liability applying to this Agreement or afforded by the Member’s law.

4.6 Verification of Authorized Members. Upon request of MMCAP Infuse, Vendor must verify that it provides Contract Price and Contracted Items in this Agreement only to Members.

4.7 Member Eligibility. Vendor will inform any prospective Government Unit, it must complete forms with MMCAP Infuse before it can access the pricing and benefits of this Agreement.

4.8 MPA. In order to use this Agreement, some Members require jurisdiction-specific paperwork or contract language. Vendor may be required to review an MMCAP Infuse MPA, as an addendum to this Agreement to provide for laws specific to a state or local jurisdiction. If these circumstances exist, the Vendor will work with MMCAP Infuse and Member to prepare an MPA to set forth the additional or altered terms and conditions. An MPA must clearly apply only to the requesting location and will not affect the rights of the other Membership, nor will it modify, derogate, or otherwise diminish the rights and obligations set forth herein, except in regard to the applicable named Member. When the specific terms are agreeable to the Vendor and the Member, the MPA will be presented by MMCAP Infuse to each party for execution. No other mechanism of modifying or “attaching to” the Agreement is authorized. Vendor is not required to agree to any additional terms; however, by not agreeing to the MPA, Vendor may be precluded from doing business with that Member. No verbal or written instructions from Members, or any of their staff or officials, to change any provision of this Agreement will be accepted by Vendor without the prior written approval of MMCAP Infuse.

ARTICLE V

AGREEMENT MANAGEMENT AND TRANSITIONS

5.1 Onboard, Transition, and Implementation. Vendor will work with MMCAP Infuse and Members to determine the appropriate steps and schedule for an onboard and transition.

A. Member Transition

i. Current Vendor Customers: If the Member is currently contracting with the Vendor for the Contracted Items, or substantially similar services, Vendor will transition each Member from the existing contract (and existing contract terms) to this Agreement (and its terms) on the Effective Date.

ii. New Vendor Customers: If the Member is not currently contracting with the Vendor for Contracted Items, Vendor will develop a transition plan for the Member, deploy the plan, and implement this Agreement (and its terms) for the Member on the Effective Date.

B. Vendor Required Documentation. Vendors will provide written notification to new and existing Members, about the Vendor’s required documentation and instructions, to enable the Member to transition to the Agreement. Including:

i. Credit Application

ii. Confirmation of MMCAP Infuse Membership (i.e., MMCAP Infuse ID, etc.)

iii. HIN

iv. State License

v. Sales Tax Exempt Certificate (may not be applicable for vaccines)

vi. Other forms as applicable, specific to class of trade requirements C. Start-Up Inventory. Vendor must have all Contracted Items loaded in its ordering system and have adequate supply available to order before the Effective Date.

D. Product Training. Upon request from Member, the Vendor will provide training on the Contracted Items covered by the Agreement.

E. Price Loading Requirements. Vendor will be responsible for processing file updates, or the files sent to the Vendor by MMCAP Infuse, which specify the Contract Pricing.

i. Vendor will load and make viewable in its ordering system, all data lines from the contract file update notifications, on a date agreed upon between the Vendor and manufacturer. See Attachment A for further specifications.

F. Completion. Vendor will work with the Member to determine the appropriate steps and schedule, subject to the above, for the transition. MMCAP Infuse and the Member acknowledge that the transition is dependent on Vendor receiving all documentation from the Member required for account set-ups. Satisfaction of a 100% operating level will include:

i. Installation and testing of all electronic ordering equipment (See Attachment A for further details)

ii. Training of employees

iii. Price loading of all MMCAP Infuse Contract Items

iv. Vendor’s internal inventory preparation and distribution system

v. Vendor’s plan to ensure that stocking and chargeback agreements are in place with all MMCAP Infuse-contracted vendors

5.2 Vendor Reporting. Vendor will supply to MMCAP Infuse monthly sales data on or before the tenth (10th) day of the subsequent calendar month. The required items for the reports are found on Attachment D.

ARTICLE VI

WARRANTS, COVENANTS, AND DUTIES OF VENDOR

6.1 Covenant of Laws. Vendor shall comply with all state and federal laws, as applicable to each Member, in the performance of this Agreement.

6.2 Required Licenses, Permits, and Registration. Vendor shall have in place prior to the start of the Agreement, and must maintain for the life of the Agreement, all current licenses, permits and registrations required by state and federal agencies. Vendor must make such documentation available upon request by MMCAP Infuse.

6.3 National Association of Boards of Pharmacy (NABP) Accreditation. Vendor must maintain accreditation with NABP. If Vendor’s accreditation lapses, Vendor must notify MMCAP Infuse within one (1) day.

6.4 Payment to subcontractors. To the extent applicable, pursuant to Minn. Stat. § 16A.1245, the Vendor must pay all subcontractors, less any retainage, within ten (10) calendar days of the Vendor’s receipt of payment from a Member for undisputed services provided by the subcontractor(s) and must pay interest at the rate of one and one-half percent (1.5%) per month or any part of a month to the subcontractor(s) on any undisputed amount not paid on time to the subcontractor.

6.5 Business Interruption Plan. Vendor must have an emergency preparedness and business continuity plan. Vendor will work with each requesting Member, to develop a pre-selected list of Contracted Items to be shipped in the event of a national or regional emergency.

6.6 Federal Health Care Program Exclusion. Vendor represents that it, its directors, officers, and employees are not (A) sanctioned individuals or companies and have not been listed by any federal agency as barred, excluded, or otherwise ineligible for participation in federally funded health care programs as defined in 42 U.S.C. Sec. 1320a-7b(f) (Federal Healthcare Programs); (B) have not been convicted of a criminal offense related to the provision of healthcare items or services; and (C) are not under investigation or otherwise aware of any circumstances which may result in such Vendor being excluded participation in Federal Healthcare Programs. Vendor agrees not to enter into a subcontract with any individuals or companies that have been sanctioned, debarred or excluded from participation in any Federal Healthcare Programs. Vendor agrees to indemnify, hold harmless and defend the State of Minnesota and MMCAP Infuse from any claims, demands or damages which the State of Minnesota and MMCAP Infuse may suffer as a result of Vendor’s breach.

6.7 Debarment. Vendor warrants and certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota, the United States federal government, or any Member; and has not been convicted of a criminal offense related to the subject of this Agreement. Vendor further warrants that it will provide immediate written notice to the MMCAP if at any time it learns that this certification was erroneous when submitted or becomes erroneous by reason of changed circumstances.

A. Certification regarding debarment, suspension, ineligibility, and voluntary exclusion: Federal money will be used or may potentially be used to pay for all or part of the work under the Agreement, therefore Vendor certifies that it is in compliance with federal requirements on debarment, suspension, ineligibility and voluntary exclusion specified in the solicitation document implementing Executive Order 12549.

6.8 Indemnification. Pursuant to the Minnesota Constitution Article XI Section 1, MMCAP Infuse cannot indemnify the Vendor. Except for causes due to MMCAP Infuse’s or Members’ sole negligence, Vendor will defend and hold harmless MMCAP Infuse, including MMCAP Infuse’s, Members, agents, directors, employees, attorneys, and other representatives during and after this Agreement from and against all actual and potential claims relating to loss, liability, damage, costs and expenses (including attorneys’ fees and legal costs), causes of action, regulatory proceedings, suits, demands, or judgements relating to Vendor’s:

A. Intentional, willful, or negligent acts or omissions;

B. Fraud and or deceit;

C. Actions that give rise to strict liability;

D. Breach of contract;

E. Breach of warranty;

F. Violations of federal, state, or local laws, orders, and/or policies;

G. Employees or subcontractors criminal and civil claims; and/or H. Failure to pay fees, charges, expenses, taxes, or other debts to third parties.

6.9 Disclosure. Under Minn. Stat. § 270C.65, subd. 3 and other applicable law, the Vendor consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number, already provided to the Minnesota, to federal and state agencies, and state personnel involved in the payment of obligations. These identification numbers may be used in the enforcement of federal and state laws which could result in action requiring the Vendor to file state tax returns, pay delinquent state tax liabilities, if any, or pay other state liabilities.

ARTICLE VII

WARRANTS, COVENANTS, AND DUTIES OF VENDOR

7.1 DEA License/HIN. Vendor will not require a Member to have a DEA number in order to obtain products unless making orders for controlled substances; Facilities will have HIN numbers assigned by MMCAP Infuse.

7.2 Administrative Fee. In consideration for the administrative support and other services provided by MMCAP Infuse in connection to this Agreement, the Vendor agrees to pay an Administrative Fee on all purchases of Contracted Items made by Members with the Vendor.

A. The payment of the Administrative Fees is intended to be in compliance with the Medicare and Medicaid Patient Protection Act of 1987 (Anti-Kickback Statute) and 42 U.S.C. §1320a-7b(b)(3)(A) and the “Safe Harbor” regulations regarding discounts or other reductions in price set forth at 42 C.F.R. §1001.952(h) and GPOs set forth at 42 C.F.R. §1001.952(j). Vendor will not pay an Administrative Fee on the same purchase to more than one GPO, nor will Vendor split an Administrative Fee on any item between such groups B. Vendor must provide Administrative Fee data to MMCAP Infuse within ten (10) business days after the end of each calendar month. The Administrative Fee must be paid as soon as is reasonable after the end of each calendar month, but no later than thirty (30) calendar days after the end of the calendar month. The Vendor will submit a check payable to “State of Minnesota, MMCAP Infuse Program.”

C. Vendor shall not be required to pay the Administrative Fees on tax amounts, returns, or other shipments for which Vendor did not collect payment.

7.3 Business Reviews. Vendor will perform at least one business review with MMCAP Infuse annually. The review will be at a time and location that is mutually agreeable to Vendor and MMCAP Infuse and at a minimum address: a review of sales to members, pricing and contract terms, administrative fees, supply issues, customer issues, and any other necessary information.

ARTICLE VIII

INTELLECTUAL PROPERTY

8.1 MMCAP Infuse Ownership. MMCAP Infuse owns all rights, title, and interest in MMCAP Infuse customer data, sales transaction data, DEA/HIN information (subject to third-party rights), contract pricing, EDI transaction data, reverse distribution data, and payment data, including copyrights and trade secrets contained therein. MMCAP Infuse grants to Vendor an unlimited, non-revocable, nontransferable, fully paid license, for the term of this Agreement, to: (A) release state specific data to a Member’s primary contact; (B) release any of the above data to product manufacturers, when necessary for the performance of this Agreement or as required by Vendor’s agreements with such product manufacturers; (C) to release any of the above data to other MMCAP-approved third parties, when necessary for the performance of this Agreement; (D) to provide Member purchase data to aggregators, including IMS Health and NDC Health, subject to Vendor’s reasonable efforts to require such data aggregators to protect any identifiable data from discovery by another third party; and (E) to provide Member purchase data to other group purchasing organizations of which the Member is also a member, provided such data will not include MMCAP Infuse-identifiable data. Any MMCAP Infuse identifiable data provided hereunder to a third party must identify the data as MMCAP Infuse data and subject to Minnesota Statutes, Chapter 13. To the extent permitted by law, Vendor hereby agrees that in the event that MMCAP Infuse or a Member requests in writing that its purchase data be kept confidential, such data will not be provided to third party aggregators.

8.2 Vendor Ownership. Vendor owns all rights, title, and interest to any aggregated data not identifiable as arising from this Agreement and any other intellectual property created for or presented to MMCAP Infuse. Vendor grants to MMCAP Infuse an unlimited, non-revocable, non-transferable, fully paid, perpetual license, to use all intellectual property created for or presented to MMCAP Infuse under this Agreement.

8.3 Pre-Existing Intellectual Property. MMCAP and Vendor will each retain ownership of, and all right and, title and interest in and to, their respective pre-existing intellectual property. Vendor grants to Minnesota an unlimited, royalty-free, paid up, perpetual, non-exclusive, irrevocable, non-transferable license to use and modify any pre-existing Vendor intellectual property, including marketing materials and materials contained in solicitation responses provided by Vendor to MMCAP Infuse or a Member. The aforementioned license is solely for use by Members, and their agents related to an internal business or governmental purposes.

8.4 Intellectual Property Warranty and Indemnification. Except as otherwise set forth below, Vendor warrants that any materials, software, or products directly manufactured by Vendor will not infringe upon or violate any patent, copyright, trade secret, or any other proprietary right of any third party. In the event of any such claim by any third party against MMCAP Infuse, MMCAP Infuse will promptly notify Vendor. Vendor, at its own expense, will indemnify; defend to the extent permitted by the Minnesota Attorney General's Office, and hold harmless MMCAP Infuse against any and all claims, loss, cost, expense, or liability (including reasonable legal fees) arising out of such a claim, whether or not such claim is successful against MMCAP Infuse.

A. Vendor’s indemnification obligations set forth in this Article shall apply to the extent that the third party’s indemnification obligation to the Vendor is available to MMCAP Infuse. This Paragraph will not apply to any Products or Services Vendor distributes on behalf of a third-party.

8.5 Publicity and Endorsement. Any publicity regarding the subject matter of this Agreement must identify MMCAP Infuse as a sponsoring or endorsing agency and must not be released without prior written approval from MMCAP Infuse. For purposes of this provision, publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Agreement.

A. Marketing. Any direct advertising, marketing, or direct offers with Members must be approved by MMCAP Infuse. Violation of this may be cause for immediate cancellation of this Agreement and/or MMCAP Infuse may reject any proposal submitted by the Vendor in any subsequent solicitations for awards.

B. Endorsement. The Vendor must not claim that MMCAP Infuse, the State of Minnesota, or any Member State endorses its products or services.

ARTICLE IX

INSURANCE

Vendor will not commence work under the Agreement until they have obtained all the insurance described below and MMCAP Infuse has approved such insurance. Vendor will maintain such insurance in force and effect throughout the term of the Agreement.

9.1 Policies. Vendor is required to maintain and furnish satisfactory evidence of the following insurance policies:

A. Workers’ Compensation Insurance: Except as provided below, Vendor must provide Workers’ Compensation insurance for all its employees and, in case any work is subcontracted, Vendor will require the subcontractor to provide Workers’ Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Coverage B, Employer’s Liability. Insurance minimum limits are as follows:

i. $100,000 – Bodily Injury by Disease per employee

ii. $500,000 – Bodily Injury by Disease aggregate

iii. $100,000 – Bodily Injury by Accident If Minnesota Statute 176.041 exempts Vendor from Workers’ Compensation insurance or if the Vendor has no employees in the State of Minnesota, Vendor must provide a written statement, signed by an authorized representative, indicating the qualifying exemption that excludes Vendor from the Minnesota Workers’ Compensation requirements. If during the course of the Agreement the Vendor becomes eligible for Workers’ Compensation, the Vendor must comply with the Workers’ Compensation Insurance requirements herein and provide MMCAP Infuse with a certificate of insurance.

B. Commercial General Liability Insurance: Vendor is required to maintain insurance protecting it from claims for damages for bodily injury, including sickness or disease, death, and for care and loss of services as well as from claims for property damage, including loss of use which may arise from operations under the Agreement whether the operations are by the Vendor or by a subcontractor or by anyone directly or indirectly employed by the Vendor under the Agreement. Insurance minimum limits are as follows:

i. $5,000,000 – per occurrence

ii. $5,000,000 – annual aggregate

iii. $5,000,000 – annual aggregate – Products/Completed Operations

iv. The following coverages shall be included:

a.…