Attachment_3_-_Summary_of_Agreed_Upon_Changes.docx

Contract 1-25-68-01A Gases (Medical, Industrial, Specialty, BAR, CARB) Attachment 3 – Summary of Agreed Upon Changes

Non- IT Goods General Provisions (Rev. 02/20/2025) Section 1.1.5 Goods: (commodities) means total present and future requirements of medical, specialty, and/or industrial gases, in gaseous and/or liquid form. This Agreement shall not include the provision of services, devices, and/or hardware unless an applicable rider, exhibit or amendment hereto is executed by the parties. For clarification, the sale, installation, maintenance or service of cryogenic freezers shall not be provided or offered to the State under this Agreement unless such documentation is executed. The Goods shall be for State’s own use, and not for resale, unless the parties execute a resale addendum. The State shall not transfill Goods from any gas or liquid storage vessels or other equipment, cylinders and/ or other container provided by State into other containers unless the parties execute a transfill addendum.

Section 1.1.6 State: means the government of the State of California, its employees and authorized representatives, including without limitation any department, agency, or other unit of the government of the State of California, including the Buyer, as defined herein.

Section 5 WARRANTIES & REPRESENTATIONS:

Unless otherwise specified, the warranties contained in this Contract begin after acceptance has occurred.

Contractor warrants that, at the time of delivery, all gas Products furnished hereunder will comply with Compressed Gas Association (CGA) guidelines.

Any other Products sold by Contractor will conform to Contractor’s or manufacturer’s standard specifications. Contractor makes no warranty with respect to non-gas Products manufactured by others, but will, to the extent permitted, pass on to Buyer any applicable manufacturer’s warranty. Contractor specifically disclaims any other express or implied standards, guarantees, or warranties, including any warranties of merchantability, fitness for a particular purpose or non-infringement and any warranties that may be alleged to arise as a result of custom or usage. Contractor makes no warranties of any kind for any technical advice provided by Contractor to the State and assumes no obligation or liability for any such technical advice with reference to the use of products or results which may be obtained therefrom, and all such advice if given and accepted is at State’s sole risk.

Section 7.1 INDEMNIFICATION:

Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all third party claims and losses accruing or resulting to any and all Contractors, subcontractors, suppliers, laborers and any other person, firm, or corporation furnishing or supplying work, services, materials or supplies in connection with the performance of this Contract, to the extent of the Contractor’s negligence, and from any and all claims and losses accruing or resulting to any person, firm or corporation which may be injured or damaged by Contractor in the performance of this Contract, to the extent of the Contractor’s negligence.

Section 7.2 PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:

(a) Contractor shall hold the State of California, its officers, agents and employees, harmless from liability of any nature or kind, including costs and expenses, for infringement or use of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, article or appliance furnished in connection with the Contract.

(b) Contractor may be required to furnish a bond to the State as security for Contractor’s obligations to the State relating to patent, copyright and trade secret infringement.

(c) Contractor, at its own expense, shall defend any action brought against the State to the extent that the Goods or telemetry software supplied by the Contractor or the operation of such Goods pursuant to a current version of Contractor supplied telemetry operating telemetry software infringes a United States patent or copyright or violates a trade secret. The Contractor shall pay those costs and damages finally awarded against the State in any such action. Such defense and payment shall be conditioned on the following:

i. That the Contractor shall be notified in writing by the State within thirty (30) days of any notice of such claim; and,

ii. That the Contractor shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, provided, however, that when principles of government or public law are involved, the State shall have the option to participate in such action at its own expense.

(d) Should the Goods or telemetry software, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement of a United States patent or copyright or a trade secret, the State shall permit the Contractor at its option and expense either to procure for the State the right to continue using the Goods or telemetry software, or to replace or modify the same so that they become non infringing. If none of these options can reasonably be taken, or if the use of such Goods or telemetry software by the State shall be prevented by injunction, the Contractor agrees to take back such Goods or telemetry software and make every reasonable effort to assist the State in procuring substitute Goods or telemetry software. If, in the sole opinion of the State, the return of such infringing Goods or telemetry software makes the retention of other Goods or telemetry software acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating such Contracts, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such Goods or telemetry software and refund any sums the State has paid Contractor for any such Goods or telemetry software less any reasonable amount for use or damage.

(e) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon:

i. The combination or utilization of Goods furnished hereunder with equipment or devices not made or furnished by the Contractor; or,

ii. The operation of equipment furnished by the Contractor under the control of any operating telemetry software other than, or in addition to, the current version of Contractor supplied operating telemetry software; or

iii. The modification by the State of the equipment furnished hereunder or of the telemetry software; or

iv. The combination or utilization of telemetry software furnished hereunder with non-Contractor supplied telemetry software.

(f) Contractor certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer telemetry software in violation of copyright laws.

(g) The foregoing states the entire liability of the Contractor to the State with respect to infringement of patents, copyrights or trade secrets.

Section 9.1 INSURANCE:

When performing work on property in the care, custody or control of the State, Contractor shall maintain all commercial general liability insurance, workers' compensation insurance, and automobile liability insurance with the limits provided in the insurance certificate below. Contractor shall furnish an insurance certificate evidencing required insurance coverage acceptable to the State. Upon request by the buyer, the Contractor may be required to have the State shown as an "additional insured" on selected policies.

Addition of Example:

Section 9.3 CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY:

(a) Subject to the limitations set forth below, including Section 9.3.1, the Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the State, employees of the State, persons designated by the State for training, or any other person(s) other than agents or employees of the Contractor, designated by the State for any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the Goods either at the Contractor's site or at the State's place of business, to the extent that the injury or damage was caused by the fault or negligence of the Contractor.

(b) Contractor shall not be liable for damages arising out of or caused by an alteration or an attachment not made or installed by the Contractor, or for damage to alterations or attachments that may result from the normal operation and maintenance of the Goods provided by the Contractor during the Contract.

Section 9.3.1 LIMITATION OF LIABILITY Neither Contractor nor Contractor’s suppliers of products (“Contractor’s suppliers”) shall be liable for indirect, special, incidental, consequential and/or punitive damages. Contractor’s sole liability and, other than the Contract Termination remedies set forth in these General Provisions, the State’s sole remedy for any damages, including but not limited to damages resulting from products, delivery of non-conforming products, Contractor’s failure to deliver such products, installation or maintenance of equipment, equipment manufactured by Contractor, or services provided by Contractor shall be limited to, at Contractor’s option, the refund of the purchase price or replacement of the product or service in question. The limitations contained in this section shall apply regardless of whether the claim for damages is based on breach of contract, breach of warranty, tort or otherwise, and shall apply even where such damages are caused in whole or in part, by the negligence, gross negligence or acts and omissions of the party claiming damages or the party from whom damages are sought. All claims by the State having anything to do with the subject matter of this agreement shall be made in writing within ninety-five days after the event giving rise to such claim and failure of the State to give such notice shall constitute a complete waiver by the State of any such claims and defense for Contractor against any such claims. As used in this section, the term “the State” and “Contractor” shall include not only the party to this agreement but also all of its affiliates. The provisions governing remedies, limitations of liability and indemnity set forth in this agreement shall survive expiration, termination, or cancellation of this agreement.

Section 10.1 INVOICES:

Unless otherwise specified, invoices shall be sent to the address set forth herein. Invoices shall include the Contract number; release order number (if applicable); item number; unit price, extended item price and invoice total amount. State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.

Section 10.5 EXAMINATION AND AUDIT:

Contractor agrees that upon not less than five (5) written days’ notice, the State, or its designated representative shall have the right to review and copy any records and supporting documentation pertaining to performance of this Contract. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees or others who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract.

Section 11.3 TERMINATION FOR DEFAULT:

(a) The State may, subject to the Force Majeure (section 15.13), by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to:

i. Deliver the Goods or to perform the services within the time specified in the Contract or any amendment thereto;

ii. Make progress, so as to endanger performance of this Contract (but see subparagraph (b) below); or

iii. Perform any of the other provisions of this Contract (but see subparagraph (b), below).

(b) The State's right to terminate this Contract under subparagraphs (a)(ii) and (a)(iii) above, may be exercised if the Contractor, within sixty (60) days after receipt of the State’s written cure notice of the alleged breach, does not cure such breach.

(c) If the State terminates this Contract in whole or in part, the Contractor shall continue the work not terminated.

(d) If the Contract is terminated for default, the State may require the Contractor to transfer title and deliver to the State, as directed by the buyer, any:

i. Completed Goods, and

ii. Partially completed Goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and Contract rights (collectively referred to as "manufacturing materials" in this clause) that the Contractor has specifically produced or acquired for the terminated portion of this Contract. Upon direction of the buyer, the Contractor shall also protect and preserve property in its possession in which the State has an interest.

(e) The State shall pay Contract price for completed Goods delivered and accepted. The Contractor and buyer shall agree on the amount of payment for manufacturing materials delivered and accepted for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes clause.

(f) If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the State.

(g) The rights and remedies of the State in this clause are in addition to any other rights and remedies provided by law or under the Contract.

(h) Either party may terminate this Agreement in whole or in part in the event of a material breach as set forth by subsection a) above by the other party and a failure by such other party to cure the breach, begin diligent efforts to cure the breach, or develop a mutually agreeable plan to cure the breach, within sixty (60) days after receipt of the non-breaching party’s written notice of the alleged breach. If, the non-breaching party terminates this Agreement pursuant to this Section, such termination must be effective within ninety (90) days of the event giving rise to this right to terminate.

SECTION 12 DISPUTE RESOLUTION:

12.1 GOOD FAITH: The parties shall deal in good faith and attempt to resolve potential disputes informally.

12.2 WRITTEN DEMAND: If the dispute persists, Contractor shall submit to the Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract. Contractor's written demand shall be fully supported by factual information, and if such demand involves a cost adjustment to the Contract, Contractor shall include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable.

12.3 APPEAL: If the Contractor is not satisfied with the decision of the Department Director or designee, the Contractor may appeal the decision to the Department of General Services, Deputy Director, Procurement Division.

12.4 PROCEEDING WITH CONTRACT: Pending the final resolution of any dispute arising under, related to or involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of services in accordance with the State's instructions. Contractor's failure to diligently proceed in accordance with the State's instructions shall be considered a material breach of this Contract.

12.5 FINAL DECISION: Any final decision of the State shall be expressly identified as such, shall be in writing, and shall be signed by the Department Director or designee or Deputy Director, Procurement Division if an appeal was made. The State's final decision shall be conclusive and binding regarding the dispute unless Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later.

Section 15.7 TIME IS OF THE ESSENCE:

Time is of the essence in this Contract. Contractor agrees to meet timeframes as defined in the solicitation.

Section 15.9 NEWLY MANUFACTURED GOODS:

Paragraph Stricken Section 15.10 PACKING AND SHIPMENT:

(a) All Goods are to be packed in suitable containers for protection in shipment and storage, and in accordance with applicable specifications. Each container of a multiple container shipment shall be identified to:

i. show the number of the container and the total number of containers in the shipment; and

ii. the number of the container in which the packing sheet has been enclosed.

b. All shipments by Contractor or its subcontractors must include packing sheets identifying: the State's Contract number; item number; quantity and unit of measure; part number and description of the Goods shipped. Goods for different contracts shall be listed on separate packing sheets.

(c) Shipments must be made as specified in this Contract, as it may be amended, or otherwise directed in writing by the State's Transportation Management Unit within the Department of General Services, Procurement Division.

Section 15.12 DELIVERY:

Contractor shall strictly adhere to the delivery and completion schedules specified in this Contract. Time, if stated as a number of days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If Contractor delivers in excess of the quantities specified herein, the State shall not be required to make any payment for the excess Goods and may return them to Contractor at Contractor's expense or utilize any other rights available to the State at law or in equity.

(a) Title and risk of loss of the Goods shall pass to the State, and in the case of bulk Goods upon delivery into the storage vessel, and

(b) For all other Goods upon delivery to State’s location. Contractor’s delivery of Goods does not include the connection of any of Contractor containers with the State’s devices and/or hardware and Contractor shall refuse any such request from State unless the service is specifically provided for in a mutually executed rider, exhibit or amendment to this Agreement. If State requests such service without the appropriate documentation, State is fully liable for the result of such connection. State is solely responsible for its own Good requirements at all times, including but not limited to, monitoring and determining, Good levels, giving Contractor reasonable, advance notice of changes in State’s Goods volumes and/or patterns of use and ordering adequate amounts of Good from Contractor, irrespective of any capability of the Equipment, cylinder and/or other container to record State’s historical usage (e.g. telemetry).

Section 15.13 FORCE MAJEURE:

Except for defaults of subcontractors at any tier, the Contractor shall not be liable for failure to perform for any excess costs if the failure to perform the Contract arises from causes beyond the reasonable control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to:

(a) Acts of God or of the public enemy, and

(b) Acts of the federal or state government in either its sovereign or contractual capacity. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform.

Section 15.13.1 ALLOCATION:

Contractor shall immediately notify the State if sufficient product is not available from Contractor’s normal source of supply for any reason, in which case, Contractor may allocate Product among its own requirements and its customers. Contractor will make reasonable efforts to obtain additional Product from other sources, provided the State agrees to pay all reasonable additional costs associated with such Product. Allocation in regard to this Section will completely satisfy and discharge Contractor’s supply obligations and Contractor will, therefore, not be deemed to be in breach of such obligations.

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