Appendix B - Roswell Park Terms and Conditions.docx

APPENDIX B

ROSWELL PARK STANDARD TERMS AND CONDITIONS

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

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

2. DELIVERY TERMS. All shipments to Roswell Park (e.g., products, equipment, supplies, consumables, parts, etc.) shall be free on board (FOB) destination, freight prepaid. Title and risk of loss shall transfer to Roswell Park upon delivery to Roswell Park. Vendor shall ensure that all deliveries occur during Roswell Park’s business hours and shall coordinate delivery with Roswell Park upon Roswell Park’s request.

3. COMPENSATION.

3.1 General. In exchange for the supplies, goods, equipment, software, or other products provided under the Agreement (collectively, the “Products”), and/or the services to be performed by Vendor or any Subcontractor under the Agreement (the “Services”), Roswell Park shall compensate Vendor in accordance with the fees, rates or other pricing set forth in the Agreement.

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

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

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

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

5. INDEMNIFICATION AND LIABILITY.

5.1 Indemnification. Vendor, on behalf of itself, its Subcontractors, and their respective employees and agents (collectively, “Indemnitors”), shall indemnify, defend and hold harmless Roswell Park, its respective officers, directors, employees, and agents (collectively, the “Indemnitees”), from and against any damages, losses, expenses, costs, obligations and liabilities (including reasonable attorneys’ fees and costs) (“Losses”), to the extent arising out of: (i) the negligence, willful misconduct, or fraud of an Indemnitor; (ii) property damage, bodily injury, or death resulting from the acts or omissions of an Indemnitor; (iii) failure by an Indemnitor to comply with Applicable Law; (iv) third party claims arising out of an Indemnitor’s breach of the Agreement; (v) third party claims alleging that the Products or Services or any component thereof infringe upon a third party’s patent, copyright, trademark, trade secret or other intellectual property or proprietary right;. Notwithstanding the foregoing, Indemnitors shall have no obligation to indemnify Indemnitees to the extent a Loss arises out of Roswell Park’s negligence, willful misconduct, or fraud.

5.2 Damage to Roswell Park Property. Vendor shall be responsible for any damage to Roswell Park’s real, personal, and intellectual property caused by Vendor or its Subcontractors, including, without limitation, damage to Roswell Park Data and Roswell Park Technology (as defined in Appendix C hereto).

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

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

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

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

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

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

7. CONFIDENTIALITY. The parties acknowledge that in the performance of the Agreement, each party (“Receiving Party”) may receive or have access to non-public information of the other party (the “Disclosing Party”) that is identified orally or in writing as confidential, secret, or proprietary or, if not so identified, would be reasonably understood by an individual in the industry to be confidential, secret, or proprietary given its nature, including information received from third parties (“Confidential Information”). The Receiving Party will: (i) hold all Confidential Information disclosed to Receiving Party by or on behalf of Disclosing Party in the strictest confidence; (ii) use Confidential Information only as necessary to perform its obligations under the Agreement; (iii) not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party (except where such disclosure is required by law, court or governmental agency); and (iv) return or destroy the Confidential Information at the request of the Disclosing Party or upon the termination or expiration of the Agreement, except for Confidential Information that is automatically stored in routine archiving and back-up procedures, which shall remain subject to the protections set forth in this Section for so long as it is retained. Receiving Party may disclose Confidential Information to Receiving Party’s affiliates and consultants having a need to know such Confidential Information in order to fulfill their duties to the Receiving Party under the Agreement, provided that such individuals or entities are subject to confidentiality obligations no less stringent than those set forth in this Section.

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

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

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

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

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

9. ACCEPTANCE.

9.1 Acceptance Period. Roswell Park shall have a reasonable period of time (the “Acceptance Period”) to inspect, test, and/or verify that the Products are free from material defects or errors and otherwise conform to the terms of the Agreement, the user manual, published specifications, or other user documentation (collectively, the “Documentation”). Unless a longer period is stated in the Agreement, the Acceptance Period shall be at least five (5) business days for consumable or single use (“Consumable”) Products, and thirty (30) calendar days for non-Consumable Products. The Acceptance Period shall commence on: (i) for non-software Products, the later of the date of delivery or the date of installation (if Vendor is performing or assisting with installation); or (ii) for software, the date of first use in a live production environment.

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

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

10. WARRANTIES.

10.1 Product Warranty. Vendor represents and warrants that for the duration of the Warranty Period (defined below) all Products will: (i) be of good quality and free from defects in design, materials, and workmanship; and (ii) conform in all material respects to the Documentation during the Warranty Period. Vendor further represents and warrants that, to Vendor’s knowledge, there is no claim pending against Vendor or a customer of Vendor alleging that a Product or any component thereof infringes any third party’s patent, copyright, trademark, trade secret or other intellectual property or proprietary right. Vendor shall repair, replace, or refund any Products that do not comply with the foregoing warranty during the Warranty Period. Notwithstanding anything to the contrary in Vendor’s standard terms or polices, repair or replacement shall be at Vendor’s cost, including cost of return shipment and packaging.

10.2 Service Warranty. Vendor represents and warrants that: (i) the Services will be performed in a timely, efficient, and professional manner consistent with generally accepted industry standards and practices; (ii) the Services will meet the criteria set forth in the Agreement; and (iii) all personnel assigned to perform the Services will have the necessary licensure (if applicable), qualifications, skills and training. If any Services are defective or otherwise do not conform to the Agreement or Documentation, Roswell Park shall notify Vendor in writing (by mail or email) within the Warranty Period. Upon receipt of such notice, and notwithstanding anything to the contrary set forth in Vendor’s return policies, Vendor shall promptly: (a) reperform the Services such that the Services comply with the Agreement and the Documentation; or (b) if Vendor is unable to promptly reperform, Vendor shall issue Roswell Park a refund of fees paid for the Services and any related Products that are impacted by the non-conforming Services.

10.3 Warranty Period. For purposes of this Section, “Warranty Period” shall mean the longer of the Vendor’s standard warranty period, or: (i) for equipment and hardware Products, twelve (12) months from Acceptance; (ii) for consumable or single use Products, ninety (90) days from Acceptance; or (iii) for Services, ninety (90) days from completion.

10.4 Warranty Extension. Notwithstanding anything to the contrary, each warranty period detailed in this Section shall be extended by the period(s) of time during which the Product requires repair or replacement resulting in down time, or is otherwise in the possession of Vendor or its Subcontractor.

10.6 Pass Through Warranties. If Vendor is not the manufacturer of the Product, Vendor shall pass on to Roswell Park any manufacturers’ warranties applicable to the Product. To the extent that the terms of the warranty do not permit pass-through, Vendor shall take all actions as may be necessary to enable Roswell Park to obtain the full benefit of any commercially available Product warranties and enforce such warranties against the manufacturer.

11. REPAIRS AND MAINTENANCE. Any repairs and maintenance services performed by Vendor on equipment provided under the Agreement shall be performed at mutually agreed upon times.

12. INSPECTION. If Vendor is the manufacturer of a Product, Roswell Park reserves the right to inspect the Vendor’s manufacturing site upon reasonable notice.

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

14. SOFTWARE LICENSE. In addition to any license granted under the Agreement, Vendor hereby grants to Roswell Park a non-exclusive, non-transferable, non-sublicensable license to use the software and firmware provided under the Agreement (including any software embedded in equipment provided under the Agreement) solely for Roswell Park’s business purposes, and subject to any conditions and limitations set forth in the Agreement. Roswell Park shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, or create derivative works of any software provided under the Agreement. Notwithstanding anything to the contrary in the Agreement: (i) Roswell Park may use and copy the software and related documentation for purposes of archival backup and disaster recovery procedures; and (ii) upon termination or expiration of the Agreement, Roswell Park shall not be required to delete or destroy electronic back-up tapes or files that have been created solely by, and retained in a manner consistent with, its automatic or routine archiving and back-up procedures.

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

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

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

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

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

19. NON-SOLICITATION. During the term of the Agreement and for a period of one (1) year following the termination or expiration of the Agreement, neither party shall, directly or indirectly, without the prior written consent of the other party, employ or engage as an independent contractor, or solicit for employment or engagement, any individual who is, or was during the term of the Agreement, an employee of the other party. The restrictions set forth in this Section shall not preclude employment that results from general solicitations that are not directed at such individuals.

20. INTENT OF PARTIES/NO REFERRALS. Neither Vendor nor Roswell Park intend that any payments made under the Agreement be in return for the referral of ongoing business, if any, or in return for the purchasing, leasing, or ordering of any services other than the specific services described in the Agreement. All payments specified in the Agreement are consistent with what the parties reasonably believe to be a fair market value for the services provided.

21. EVALUATION. To the extent that the Agreement involves the provision of care, treatment or other services to patients, Vendor’s performance under the Agreement will be evaluated on at least an annual basis by Roswell Park based on criteria which shall include, but shall not be limited to, fulfillment of contractual obligations, customer service, quality of service, overall staff competency, and compliance with accreditation standards and/or state and federal requirements.

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

23. INDEPENDENT CONTRACTOR STATUS. Nothing in the Agreement shall be construed to create any relationship of employer and employee, agent and principal, partnership or joint venture between the Parties. Each Party is an independent contractor. Neither Party shall assume, either directly or indirectly, any liability of or for the other Party. Neither Party shall have the authority to bind or obligate the other Party and neither Party shall represent that it has such authority.

24. NO WAIVER. The failure of a party to enforce any of the provisions of the Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. Failure to demand strict performance shall not be construed as a waiver of rights.

25. ENTIRE AGREEMENT. The Agreement and any exhibits attached hereto constitute the entire agreement of the parties and supersedes all prior agreements, contracts, and understandings, either written or otherwise, between the parties relating to it.

26. NOTICE. Any notices issued under the Agreement shall be in writing and delivered to the address stated in the Agreement by: (i) hand delivery; (ii) certified mail, return receipt requested; or (iii) commercial overnight carrier. A copy of all notices to Roswell Park shall be sent to Roswell Park Comprehensive Cancer Center, Elm and Carlton Streets, Buffalo, New York 14263, Attn: General Counsel.

27. EXECUTION. The Agreement may be: (i) executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement; and (ii) delivered by physical mail, or by facsimile, e-mail, or other electronic means. A facsimile, PDF, or other electronic or digital signature shall create a valid and binding obligation of the party executing, and shall be deemed an original signature for all purposes.