Diamond_Drugs__Inc._MMS2200730__share_version_.pdf

Minnesota Department of Administration Office of State Procurement

50 Sherburne Avenue, Suite 112 Administration Building, St. Paul, MN 55155 Phone: 651.201.2420

Diamond Drugs, Inc.

MMCAP Infuse Agreement #: MMS2200730

Prepared on December 2, 2022

Notice to Members: Members may only select one Pharmacy Service Provider.

Accurate as of Dec. 22, 2022 Most current version:

https://members.infuse-mn.gov/user/login

MMS2200730

PREFIX A

Definitions and Acronyms

Are attached and incorporated into the Agreement

Definitions

1. Administrative Fee: Means three percent (3%) of the Dispensing Fees, medical supplies, and durable medical equipment; billed Services are one percent (1%); each Product and installation relating to EnviroClean (Attachment A-4) and monthly subscription Services for Sapphire Health, LLC’s EHR are three percent (3%). Application is described on Paragraph 9.1.

2. Actual Acquisition Cost (AAC): AAC is defined as Vendor's direct upfront wholesaler medication cost at the time of dispensing.

3. Average Daily Population (ADP): ADP is calculated by calculating the sum of each day’s actual census for the Member’s collective Facility population over a calendar month, and then dividing the sum by the number of calendar days in the respective calendar month.

4. Change Order: The document that memorializes the specific additional Services a Member has arranged with the Vendor.

5. Class of Trade: Vendor’s class of trade includes adult and juvenile correctional institutions, long-term care facilities, and assisted living facilities. Vendor reserves the sole right to limit Members’ classes of trade for full pharmacy services. Vendor is also offering Members additional services to include air purification systems and a correctional specific electronic health record software package, See Attachment A-1. These additional services are open to all Members.

6. Contract(ed) Items:

A. Products: Means all medication and other healthcare products offered by the Vendor in this Agreement through its sourcing.

B. Services: Means the services that the Vendor is offering a Member as part of a Dispensing Fee or an additional elected cost in accordance to this Agreement.

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

8. Dispensing Fee: The fee the Vendor collects for the issuance and deliverance of a prescription to a Member based on the terms of this Agreement and pricing on Attachment A-1.

9. Facility: The applicable site/location/building of the Member that houses a group of patients the Vendor is serving;

a Member may have multiple Facilities per arrangement.

10. Government Unit: Any entity as defined by Minnesota Statute 471.59.

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, Members, and other Government Units.

13. Onboarding Date: Means the Vendor must allow new Members to access to the Agreement within seven (7) days of notice by MMCAP Infuse.

14. Onboarding Forms: Reserved for future use.

15. Order Form: Means the document or electronic platform Member utilizes to obtain Products.

16. Pricing: Means the price that the Vendor has agreed to provide the Contracted Items to MMCAP Infuse and its

Membership as set forth on Attachment A and any subsequent amendment to this Agreement as mutually agreed upon by Vendor and MMCAP Infuse.

17. Primary Account Representative:

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

19. Working Hours: Means 8:00AM to 6:00PM Eastern, Monday through Friday; 8:00AM to 4:00PM Eastern on

Saturday.

A. After Hours Means from 6:01 PM Eastern to 7:59 AM Eastern the following business day and from 4:01

PM Saturday through 7:59 AM the following Monday.

B. Holidays: New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving, and Christmas.

AGREEMENT FOR MMCAP INFUSE NO. MMS2200730

THIS Agreement (“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 Diamond Drugs, Inc., a corporation with a headquarter address of 645 Kolter Drive, Indiana, PA 15701 (“Vendor”).

Agreement Term:

1. Effective Date: December 15, 2022, or the date MMCAP Infuse obtains all required signatures as required under

Minnesota Statute, whichever is later.

2. Expiration Date: August 31, 2024.

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

AGREEMENT COMPONENTS

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

1. Prefix A: Definitions

2. Attachment A: Pricing

A. Attachment A-1: Dispensing Pricing B. Attachment A-2: Labor Pricing C. Attachment A-3: Support Pricing D. Attachment A-4: Equipment Pricing

3. Attachment B: Required Member Onboarding Forms – Reserved

4. Attachment C: Required Reporting

5. Attachment D: MN Statutory Language

ARTICLE I

PRICING AND CHANGES

1.1 Notices. All notices under this Article must be sent to: MMCAP_Infuse.Contracts@state.mn.us.

1.2 Price Changes. Vendor must hold Pricing under this Agreement firm for one (1) year from the Effective Date.

Parties understand the medication AAC will fluctuate during the term of the Agreement. The terms of the Dispensing Fee for Vendor’s incumbent customers are stated below (Paragraph 1.3).

1.3 Dispensing Fee. Vendor’s Dispensing Fee and return processing fee will automatically increase by three percent (3%) every year on the anniversary date of the Effective Date

A. Patient vs. Stock.

i. Patient Prescription. The Dispensing Fee for a patient-specific prescription is calculated per prescription up to a 30-day supply per dispensing without regard to number of doses in the order.

For clarity, a thirty (30) day prescription of 90 tablets will be dispensed in 3x30-count blister cards and charged one (1) Dispensing Fee for the prescription.

ii. Stock Order. The Dispensing Fee for stock orders will be on a per piece basis. For clarity, the issuance of 3x30-count blister cards would be assessed a Dispensing Fee for each blister card distributed.

B. Automated Dispensing Cabinet. Interfacing as well as any other costs with automated dispensing machines will be negotiated separately.

C. Exceptions. The Dispensing Fee(s) in Attachment A-1 will not apply to the following Products:

i. Specialty and limited distribution products.

ii. Compounded IV medications.

iii. Total parenteral nutrition (TPN).

iv. Non-sterile compounded medications.

v. 340B program medications that are mutually agreed upon by Member and Vendor.

vi. Or, for Members requesting same day delivery, where possible and upon mutual agreement of

Member and Vendor

1.4 Taxes. Members are responsible for all applicable sales, use, lease, ad valorem, and any other tax that may be levied or assessed by reason of this transaction, unless the Member provides a tax exemption certificate (blanket or transaction specific) to Vendor before the transaction occurs.

1.5 Labor Rates and Travel. Labor rates and travel expenses are outlined on Attachment A-2. There may be additional costs and Dispensing Fees as stated within this Agreement.

1.6 Software/Hardware Data System Pricing.

A. Data Storage: Found at Attachment A-3.

B. Automatized Dispensing System Support: Found at Attachment A-3.

C. Hardware Support: Found at Attachment A-3.

D. Software Support: Found at Attachment A-3.

Accurate as of Dec. 22, 2022

1.7 Alternative Pricing and Contracted Items. If the Vendor does want to provide more advantageous or alterative terms to a Member, before implementing, the Vendor must submit the terms to MMCAP Infuse for review to determine if those terms should be incorporated into this Agreement for the entire Membership. MMCAP Infuse will review and make a determination if (A) it should become part of this Agreement through an amendment; or (B) the Vendor and Member can individually reflect the changes through a Change Order.

1.8 Targeted Groups. Some Members require the use of M/W/DBE (minority/women/disadvantaged business entity) subcontractors; the pricing and costs will be negotiated between the Member and Vendor and reflected in a Change Order.

1.9 Member Fees. In the event a Member requires a fee, assessment, and/or additional costs in addition to the Pricing, those fees, assessments, and/or additional costs must be added on top of the Pricing and/or an adjustment to the discounts must be made so Vendor does not absorb the fee. Vendor must not pay a Member-levied fee without first collecting the fee through increased 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.

ARTICLE II

SERVICE OFFERINGS

2.1 Service Area. Contiguous United States, District of Columbia, Alaska, and Hawaii.

2.2 Hours of Operation. Services will be available to Members during Work Hours.

2.3 Individual Member Selection and Order of Services. Due to the individuality and customization each Member requires for its Facilities, the Vendor and Member will document the selection of Contracted Items and the Pricing through a Change Order (Vendor’s and Member’s mutual selection and agreement). Pricing and Contracted Items that are outside the scope of this Agreement must go through MMCAP Infuse’s review and receive written approval (Paragraph 1.3). The final agreed upon costs and Service will be reported to MMCAP Infuse as outlined in Attachment A. If the Vendor (or its Subcontractors) need to perform work outside the agreed upon parameters in the Order Form, the Vendor must obtain prior written approval from the Member. The Vendor will be responsible for fixing and covering the costs for any damage and contingencies not addressed and described in the Change Order.

2.4 Vendor’s Staff or Agents. Regardless of any vacancy in its staffing the Vendor is required to provide adequate coverage for all Services a Member selects that have been mutually agreed upon by Member and Vendor. For all staff the Vendor (or subcontractors – and will apply throughout the Paragraph) provides for Services, the Member will have the opportunity to review the credentials. The Members reserves the right to negate a hire or remove a staff member if it is found to have less than the necessary credentials and/or experience to perform the functions of the Services the Member elects. Each of Vendor’s pharmacy professionals shall provide proof of licensure or certifications to the Member before any Services are performed. The staff of the Vendor will:

A. maintain licensure or certification; and B. maintain professional malpractice liability insurance.

The Vendor will maintain and make available for review by the Member, if requested, all credentialing information that includes, at a minimum for pharmacists:

A. Signed application and required background check;

B. Verification of education, training, and work history;

C. Professional references;

D. Malpractice claims history; and E. Current license to practice.

2.5 Inspection Support and Operational Reviews. As part of the base Dispensing Fee, Vendor will assist the Member in developing pharmacy policies, procedures and protocols, and will cooperate with Member’s personnel to promote rational, cost-effective pharmacy services. Upon request by the Member, Vendor will provide a pharmacist every three (3) months for onsite inspections, where required by law or to comply with Member’s National Commission on Correctional Health Care (NCCHC) accreditation, for each Facility in the contiguous United States that has an ADP over 250 as part of the Dispensing Fee. Inspections that are required more often, or where not required by law or NCCHC accreditation, or for Member facilities that have an ADP of less than 250, or for Members in Alaska, Hawaii, or US Territories, inspection costs are outlined on Attachment A-2. Inspection shall include but are not limited to reviews of expiration dates, security, storage and a periodic review of medication records. Inspections for correctional Members will be based on a Member’s NCCHC status, American Correctional Association (ACA), and Joint Commission standards.

2.6 Formulary Development and Maintenance. At no charge, the Vendor will develop a formulary for the Member to ensure the most appropriate medications are being prescribed in accordance with the manufacturer’s recommendations. Ongoing and if requested, the Vendor will review and provide recommendations for the formulary quarterly. Annually, and if requested, the Vendor will review the Member’s ‘Policies and Procedures Manual’ and make recommendations.

A. Alternative Treatment Recommendations (ATR): For a cost (Attachment A-2), the Vendor will develop ongoing ATRs for non-formulary compliance at the Facility.

Accurate as of Dec. 22, 2022

2.7 Patient Management. As part of the Dispensing Fee the Vendor will perform a drug utilization review when dispensing each patient specific prescription, as well as periodically upon request by Member using computer-generated information evaluating the following: Use of non-formulary medication; Antibiotic use; Psychotropic use;

Drug Utilization by class; Specialized reporting as requested. Patient profiles will be available upon request on a patient-specific or housing unit basis provided that housing information is communicated to Vendor by the Member facility.

2.8 Individual Patient Plans: The Vendor will create individualized care plans if requested by a Member; pricing is located on Attachment A-2.

2.9 Committee Meetings. The Dispensing Fee covers the Vendor’s pharmacist participation in all committee meetings required by Member through teleconference or webinar; Vendor and Member will work in good faith to arrange time and date that works for all parties. If the Member requires in-person participation, the Member will be billed in accordance with Attachment A-2.

2.10 Training and Materials. Reference books and publications, such as Physicians' Desk Reference (PDR), Nursing Drug Handbooks, etc., can be purchased through the Vendor at Vendor's actual acquisition cost plus Dispensing Fee plus shipping.

2.11 Barcoding and Tracking Services; electronic pedigree. As part of the Dispensing Fee, the Vendor will provide the following:

A. Fax Machines: Vendor will provide one (1) fax machine for each facility; replacement toner can be purchased through the Vendor at cost, plus the Dispensing Fee or elsewhere by Member at Member’s expense.

B. Medication Carts: Medication cart(s) are provided on loan for the duration of the Agreement (when all medications are purchased from Vendor) if current carts cannot be purchased, are unsafe, or have fallen into a state of disrepair as determined by Vendor’s pharmacist account manager. If providing carts, the model, type, and number of carts will be based on the Facility census and at the discretion of Vendor. Carts will include a locked box for controlled substances. The Vendor is responsible for maintenance.

C. Barcode Scanner: Vendor will provide one (1) hand-held tethered barcode scanner for each Facility, if requested for medication reconciliation purposes. The Vendor is responsible for updates and maintenance.

2.12 Stock Medication System. As part of the Dispensing Fee, and where permissible under State Law, Vendor will work with Member to establish and maintain a stock / starter medication system for each Facility and will promote the use of stock medication flow sheets with Facility’s staff. Provided the Member approves, and in accordance with board of pharmacy and state laws, rules, and regulations, the Vendor will maintain an emergency drug box located at the Facility. Items in each drug box will be determined in consultation with Member.

2.13 Emergency Service Offerings

A. Emergency Kits. Where permissible under state law and in accordance with local, State and Federal Laws and regulations, Vendor will provide lockable emergency medication kits that contain injectable medications used for immediate administration to alleviate pain, treat infections, modify dangerous behavior, and preserve life if permitted by licensing and state regulations. Medications and stock quantities will be determined and mutually agreed upon in conjunction with the Member and Vendor. All contents will be listed on the sealed, lockable kit. Accountability sheets in each kit or cabinet will be used to document inventory, administered doses, and destruction. Medications utilized will be replenished by the Vendor and billed to the Member in accordance with this Agreement.

B. STAT/Emergency Administration. Vendor and Member will establish a sufficient stock inventory based on the applicable Facility’s current products and the amounts used if permitted by licensing and state regulations. Appropriate stock quantities will be maintained using the following process:

i. Vendor will develop a customized order form that lists all stock items used by the Facility. Each form will contain a list of the items with complete descriptions and package sizes.

ii. To order, the Member will indicate the quantity needed next to each item on the form and submit the order to Vendor. Access to medications must be limited to authorized personnel, and medications must be kept secure at all times. Vendor will provide stock cards for medications that are needed for immediate administration, however stock-card doses need to be packaged in tamper-proof blister packs. When possible, different types of medications (i.e., Over-the-Counter

vs. controlled substances) will have differential color codes.

iii. Inventory flow sheets will be provided to record and document each dose administered from the stock card to reconcile all doses. When stock is depleted, completed accountability sheets must be sent to the Vendor to reconcile doses. Vendor’s system of accountability complies with all NCCHC and ACA guidelines.

iv. To help minimize diversion, Vendor will require an authorized agent to sign order forms for controlled substance stock items before they are dispensed. Instances where buprenorphine-based agents are being requested for a clinic or hospital, a site license will require signature by an “X waiver” holder to complete the transaction. Vendor will have final authority regarding the distribution of stock, controlled substance medications

v. Vendor will require Member facility to have designated personnel complete and sign a stock liability form prior to any legend or controlled substance medications being distributed as stock

Accurate as of Dec. 22, 2022

vi. Vendor may require Power of Attorney or authorized agent designations to be on file with Vendor prior to any legend stock being distributed

vii. At all times, local, state, and federal laws, rules, and regulations will take precedence over Member facility policy and procedures.

2.14 On-Site Staffing and Telemedicine. If on-site staffing or Telemedicine consults are requested by the Member, and mutually agreed upon by the Member and Vendor, the Member and Vendor will make arrangements for additional compensation, and document those costs on a Change Order. The hourly rates will not exceed what is outlined on Attachment A-2.

2.15 Third Party Billing. At no costs to the Member, and as directed by the Member, Vendor will create separate invoices for individual for patients that are being billed separate because they are being charged directly or being cared for by a jurisdiction other than the Member such as patients under the control of the U.S. Bureau of Prisons (BOP), U.S. Immigration and Customs Enforcement (ICE), U.S. Marshals Service (USMS), and for counties. Vendor will bill compensation orders, medical assistance, health insurance, AIDS drug assistance programs (ADAP), or other payment sources if the patient is eligible, if permitted to bill, and if Vendor receives billing information at the time of dispensing. Medications invoiced to other payers will be billed at the state Medicaid rate. If these invoices are not paid within sixty (60) days, the Member will be responsible for all charges at the agreed upon rate for that Member with no interest being charged

2.16 Backup, Overflow, or Afterhours Pharmacies. A Member can elect to have the Vendor set up a network of local pharmacies in close proximity to a Facility serviced as part of this Agreement for an alternative source for short term medication orders that are needed "stat" or after the normal hours of operation. Upon notification of a stat request, the Vendor shall make all arrangements for the order to be transmitted to the local pharmacy and make sure that there are no contraindications to the medication, as the local pharmacy will not have the patient's complete medication profile on hand to properly screen for drug interactions or other potential problems.

A. The contractor shall not allow non-formulary medications to be ordered from the local pharmacy without a prior approval from the Member.

B. Backup pharmacy services will be billed as a pass-through charge to the Member at the contracted backup pharmacy’s rate, as billed through a pharmacy benefit management (PBM) company, plus the backup pharmacy’s delivery charge or on-call charge, or the taxi or courier charge, if applicable.

2.17 Grant Consulting. A Member can elect to have the Vendor manage their grants, where the Vendor will either manage or assist the Member in applying for and maintaining compliance for received grants. Under this Service, the Vendor will be required to coordinate requirements for clinical and research materials, while also ensuring compliance to all policies and procedures. The Pricing can be found on Attachment A-2.

2.18 Discharge Service Offerings. Discharge medications will be dispensed to the Member in the quantity requested up to a thirty (30) day supply. Only a single Dispensing Fee will be invoiced if the discharge medication is dispensed by the Vendor. All discharge medications will be dispensed in childproof containers, unless otherwise requested.

These medications will be labeled appropriately with all directions and auxiliary warning labels, in compliance with applicable regulations.

2.19 Reverse Distribution and Waste Disposal. Members may opt to utilize MMCAP Infuse approved vendors at their own expense. The Member can purchase RxDestroyer from the Vendor; pricing can be found on Attachment A-4.

2.20 Equipment Leasing and Maintenance. Vendor can offer to lease equipment and associated software to a Member during the term of this Agreement. Offerings are not to exceed rates outlined on Attachment A-3 and A-4. The final agreed upon Pricing and selected Contracted Items will be formalized in a Change Order. All maintenance of leased equipment will be the responsibility of the Vendor. If the equipment stops working or repairs are needed due to no fault of the Member, the Vendor will replace the malfunctioning equipment with a functional equivalent at no cost to the Member. Member will be responsible for damaged or lost Vendor equipment that was provided on loan.

A. Member Owned Equipment and Software. For equipment owned by the Member, Vendor may be able to provide maintenance and support. Those rates are outlined on Attachment A-3.

2.21 Reports. The Vendor will provide the following reports at no costs:

A. Patient Census B. Monthly Costs C. Costs Per Patient D. Non-Formulary Prescription Orders E. Non-Formulary Costs F. Patient Profiles G. Medication Utilization H. New and refill prescription dispensed I. Monthly refill reminders J. Ad Hoc: The Vendor will provide ad hoc reports to Members at no additional costs; they will be provided to the Member within three (3) business days depending on the nature of the request.

2.22 Failure to Provide Service. If Vendor fails to provide the Services as set forth in this Agreement, unless due to

Force Majeure, as defined in Paragraph 5.4, Member may obtain the same or equivalent Service through an alternative MMCAP Infuse vendor. If MMCAP Infuse vendor cannot provide Member the Services required, the Member may obtain the Service on the open market, including retail, for the period in which the Vendor is unable

Accurate as of Dec. 22, 2022 to provide the Service. The Vendor will reimburse for any additional costs (including shipping and third-party fees) over the Pricing of this Agreement sustained by Member via a credit within thirty (30) days of receipt of the claim.

ARTICLE III

PRODUCT DISPENSING AND ORDERING;

3.1 Ordering Products. Vendor or Member may use mutually agreed upon Order Forms; to the extent that the terms of any Order Form(s) conflict with the terms of this Agreement, the terms of this Agreement supersede.

A. Obtaining a Contracted Item from an Order Form shall constitute 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. Unless due to Force Majeure, as defined in Paragraph 5.4, 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.

B. Cut-off Times. New orders are to be submitted by 2:00PM Facility local time Monday through Friday for next business day delivery. All new orders submitted Saturday by 11:00AM Facility local Time will be delivered on Monday. Refill and stock medication orders will be received by Vendor up to 5:00 PM local time Monday through Saturday and will be shipped from Vendor the next business day

C. Order Minimums. Reserved for future use.

D. Shipping Costs. For Members with ADPs equal to or over 250 in the contiguous United States, shipping costs are be included in the Vendor’s Dispensing Fee (i.e., not additional costs); for Members with an ADP of less than 250, shipping will be billed as a pass-through cost without any markups or fees by the Vendor.

All shipping costs to Members in Alaska and Hawaii, are billed as a pass-through cost regardless of ADP.

Same day delivery to certain Members, where feasible, are negotiated in good faith between Member and Vendor. They will be agreed upon before any delivery is made.

E. Generics. Vendor will dispense all medications as generics unless there is no approved generic substitute, or the Member has requested “no substitute” in accordance with applicable state laws.

F. Dates. All Products supplied to Members must have an expiration date of at least twelve (12) months from the date of manufacture and have a least a six (6) month shelf life from the date of acceptance of the Product by the Member unless prohibited or restricted by federal, FDA, DEA, State, or local laws, rules or regulations. Statutory and regulatory requirements will always take precedence over contractual terms and conditions.

3.2 Product Labeling Requirements. All true unit-dose blister cards eligible for reclamation will have each individual bubble of the blister card labeled with the medication’s name and strength, lot number, NDC, manufacturer’s name, and expiration date. Prescription labels will be barcoded to allow for inventory management as well as quality assurance during med pass. Part of the medication label will be a thermal barcode label with a peel-off refill tab, printed in clear, large type. The tabbed refill labels will be supplied on every labeled medication order. Each refill tab will contain the patient’s name and number, medication name, quantity, number of refills, prescription number, unique card identification, and date the next refill is due.

A. Manifests. Every Product shipment will contain a detailed computerized delivery manifest containing Vendor’s name, patient name and identification number, prescription number, medication name and strength, quantity dispensed, date dispensed, and price. If a Member needs additional information on the delivery manifest, Vendor will make every effort to accommodate the request.

3.3 Packaging Requirements. If packaging other than blister cards are required, the alterative packaging surcharge is identified on Attachment A-1.

A. Over-the-Counter (OTC). Vendor will distribute OTC commissary items in original manufacturer packaging.

Each package is labeled with medication directions, side effects, ingredients, and all required information that are to be contained on OTC packaging.

B. Prescriptions. Prescriptions are packaged in thirty (30) count dose tamper resistant blister cards or the manufacturer's original container per request.

C. Infusion Therapy. IV mixtures will be dispensed compounded, labeled, and ready to administer or will be dispensed in MiniBag Plus packaging for easy self-mixing on site, upon request by the Member.

D. Temperature Control. Vendor’s packaging will maintain Products at the manufacturers’ recommended specifications. All Products that require refrigeration will be shipped in to ensure proper temperatures controls; outer boxes containing refrigerated items are labeled with a fluorescent orange sticker that states, “May Contain Refrigerated Items” Refrigerated items will not be shipped for weekend delivery unless requested.

E. Controlled Substances. Controlled substance medications will be packaged in red blister cards for easy identification, will be marked with a large red letter “C” if in Schedules III-V (C3-5) and with two red letter “C”’s if Schedule II (C-2), allowing Member staff to differentiate the schedules. Controlled substance medications will be packaged in a separate bag containing its own delivery manifest.

Accurate as of Dec. 22, 2022

F. Absent Products. If an ordered item is not part of the current shipment, the item and the reason for its absence (i.e., ordered too soon to fill, ordered past cut date, non-formulary medication, etc.) will be clearly indicated on the exception report section of the manifest.

3.4 Shipping. 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 Member without the prior written approval by the Member and MMCAP Infuse. Delivery for Products under this Agreement shall be FOB Destination unless otherwise agreed to by Vendor and Member.

Vendor will not add any fuel surcharges to the purchase under this Agreement unless such charges are imposed by Vendor’s carriers. The Vendor and Member will split any fuel surcharges assessed by FedEx or UPS shipments fifty-fifty (50/50). Upon request by the Member, the Vendor will provide evidence of the total surcharge to the Member. Notwithstanding the foregoing, emergency orders, rush orders, and products dropped shipped from Vendor’s contracted supplier, are subject to an added shipping and handling charge determined by Vendor and disclosed to in writing Member before a purchase is made.

A. Damaged Products. All damaged Products will be reported to Vendor’s customer service department within 24 hours of receipt and applicable credits will be issued on the next billing cycle.

3.5 Order Tracking Requirements. All orders will be tracked to ensure the timeliness and accuracy of deliveries.

Vendor’s shipping software will track packages at every destination point. The software will provide estimates and confirmations of scheduled and actual delivery times as well as the names and signatures of delivery recipients.

Upon request, Vendor will automatically email the Member the courier tracking information, including the tracking number and a link to the shipping company’s website. If an order is not delivered by its guaranteed delivery time, Vendor’s shipping department will begin the process of tracking the shipment. If Vendor determines the package is lost in shipment, Vendor will immediately contact the Member and provide a copy of the missing delivery manifest, so each item can be reviewed, and it can be determined if Vendor needs to supply the medication(s) using local backup sources or immediate overnight shipment. The Vendor will recover those costs from the courier rather than the Member.

3.6 Emergency Orders (non-prearranged Service). For Members that are not utilizing the Vendor’s emergency services under Article II. Emergency orders can be submitted directly to Vendor. The Vendor will either deliver the Products directly to the Member by courier or arrange access to a local pharmacy. Costs for both will be passed through at Vendor’s cost or as invoiced to Vendor by local pharmacy, without any margin or markup. Detailed line-item reports of all emergency prescriptions will be provided with Vendor’s invoice each month. Charges may include expedited courier charges, the local pharmacy’s fees and price differentials, on-call charges, etc.

3.7 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 the Contract Items under the Order Form are 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 and does not provide a cure within thirty (30) days that is acceptable to Member.

Upon receipt of sixty (60) days 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.

3.8 Product Outages. It is the responsibility of the Vendor to maintain sufficient inventory levels for all Products to meet the foreseeable needs of the Members. If Vendor cannot fulfill orders made by Members directly to the Vendor, it will be considered a failure to perform by the Vendor. The Vendor agrees to utilize the following process in the event of a backorder situation due to a Vendor-created stock outage.

A. Immediate Notification. Vendor’s ordering system will provide notice within twenty-four (24) hours to the MMCAP Infuse and its Members of any Products covered by this Agreement that the Vendor has placed on backorder. Vendor’s backorder notification will include:

i. the Products placed on backorder status;

ii. the expected timeline of the backorder;

iii. the reason for the stock outage was caused; and

iv. how the Vendor intends to resolve the backorder situation.

B. Substitution: If Members consents, Vendor may offer like-kind Products at the same or lower price as the out-of-stock product. If no acceptable substitution can be offered: (i) the Member may purchase the same or equivalent Product from an alternative source or open market; or (ii) the Vendor may source the Product through other mechanisms.

i. It is expected that the Vendor will be sourcing Products at the best value for the Member.

3.9 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

Accurate as of Dec. 22, 2022 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.

3.10 Returns. Once a month, Vendor will provide ground shipping for returned medications and will provide the Member with a prepaid, preaddressed return label. Vendor will provide credit on unused oral solid medications, where permitted by law or regulation. Vendor will provide credit on both full and partial blister cards of Products. Credit is offered on full and partial cards at 100% of the actual medication acquisition cost at the time of dispensing less a $1.25 processing fee per card. Returns received by Vendor by the 15th day of each calendar month will be credited on the next invoice for that calendar month.

A. Oral solid medications returned in a sealed manufacturer’s bottles will be eligible for credit.

B. Credit is issued on medications based upon the professional judgment of a Vendor pharmacist.

C. Credit will not exceed the current market value per dose of medication eligible for return.

D. The following will not be eligible for credit: controlled substances, opened partial stock medications, liquids, injectables, topicals, medications dispensed in vials or strip packaging, refrigerated products, medications not in their original sealed blister packs, medications that have not been stored under proper conditions, medications that are defaced or have been adulterated, medications that are within 4 months of expiration, medications not packed as one full unit per blister, medications that have been released to the inmate population or labeled/dispensed as keep on person. Medications that are specialty, subject to FDA REMS criteria, or limited distribution medications, medications that have been billed to a private insurance, third party, USM, ICE, 340B, or Medicaid, medications that were not originally purchased from Vendor, and inhalers.

E. Blister cards that are dispensed with half tablets or with more than one single unit per individual bubble of the blister card are not eligible for return.

F. Medications ineligible for credit will not be returned to the Member.

G. Vendor will credit non-controlled substance Products returned from a Member so long as the Member’s jurisdiction permits such practice, the medication was originally dispensed by Vendor, and the manner in which the medication is returned complies with state and federal law and Vendor’s return policy.

3.11 Recalls. Vendor will employ dedicated staff pharmacists to address manufacturer recalls, shortages, and medication backorders. When Vendor is notified of recalls, the team will immediately review Vendor's current inventory and remove items identified in the recall. Vendor will provide reports to each affected Member, identifying the patients who received recalled medications. Vendor will notify all relevant prescribers and other personnel according to pre-established protocols and procedures. Members will not incur costs for Product returns related to recalls. Vendor will follow manufacturer or wholesaler instructions for returns and credit for recalled Product.

ARTICLE IV

INVOICING AND PAYMENT

4.1 Member Responsibility: 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. Vendor agrees to invoice the Members as established in this Agreement. All Dispensing Fees are based on Vendor being Member’s preferred pharmacy provider (other than those medications sourced locally for urgent needs) for medication dispensing and pharmacy program management. If the Vendor believes the Member is not utilizing the Vendor as expected, the Vendor may require the Member to provide an explanation of lack of or decrease in utilization from the Vendor. Member will have thirty (30) days to provide a response. If the Vendor is not satisfied by the response, they can provide a line-item list of equipment to be returned by Member to the Vendor. If the Member does not return the equipment within thirty (30) days, they will be invoiced for the costs.

4.2 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.

4.3 Payment Method. Vendor will accept Electronic Funds Transfer (EFT), credit card, or P-Card as a payment method and Member will initiate this process with its financial institution. Payment by credit card or purchase card will be assessed a three percent (3%) fee.

4.4 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.

4.5 Payment Terms. Payment by Member to the Vendor is due thirty (30) days from the receipt of the invoice. The Vendor can assess late fees in accordance with the local statutes of the Member.

A. Hepatitis C medications are invoiced twice a month.

4.6 Invoicing. Vendor will submit an invoice monthly.

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);

Accurate as of Dec. 22, 2022

iii. Bill to and ship to address;

iv. Invoice date;

v. prescription number, patient name and identification number (if available), medication name and strength, quantity dispensed, unit price, extended price, dispensing fee, NDC number, date the prescription was dispensed, and prescriber name; and

vi. If applicable, charges related to elected Services along with description of service provided.

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 fifteen (15) 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. Any items not in dispute are required to be paid and are not to be withheld.

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.

4.7 Credits and Rebills. Vendor will process credits and rebills as notifications are received from a Member. In the case of an invoice dispute, and upon investigation by Vendor that dispute is justified, 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.

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 order date itemized listing of the Contract Items affected;

ii. any new invoices associated with the credit; and

iii. Net credit amount available to the Member.

4.8 Price Audits and Corrections. In the event of a 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.

ARTICLE V

TERMINATION, CANCELLATION, AND REMEDIES

5.1 Cancellation. MMCAP Infuse or Vendor may cancel this Agreement any time, without cause, upon one hundred and eighty days (180) days’ written notice to the other Party.

5.2 Termination for Cause. Either party may terminate this Agreement at any time on the basis the other party breached this Agreement. The moving party must provide written notice to the other party, which upon the receiving, the other party has thirty (30) days to cure the defects. Upon the thirty (30) days, the breaching party has not cured the defects, the moving party may terminate this Agreement after ten (10) subsequent days.

5.3 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 enough to pay for the Contracted Items.

5.4 Force Majeure. A party will not be considered in default in the performance of its 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

Accurate as of Dec. 22, 2022 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.

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

5.6 Failure to Perform. Upon failure to perform the following items in the time and manner as set forth herein, the following fees shall be paid by Vendor:

A. Reports. In the event that any report and/or data provided by the Vendor, pursuant to the terms of this Agreement, is not received according to schedule, contains incorrect data, incomplete data, or no data, or is more than a minor defect or causes harm to MMCAP Infuse’s ability to conduct business or its governmental purpose, Vendor will pay the following to MMCAP Infuse: $50/day, until resolved. Vendor will receive notice and a fourteen (14) day grace period to provide necessary report or correct data before fees are incurred.

B. Late Administrative Fee Payments: As provided for in statute for late payments to the State of Minnesota.

C. Notices and Signatures. If the Vendor fails to provide notice or signature as provided for in this Agreement, the Vendor will pay the following to MMCAP Infuse: $200/day, until resolved.

D. Class of Trade: Reserved.

E. Adding and Removing Members. Reserved.

F. Application of Fees. The application of the amounts herein shall not excuse Vendor’s performance obligations as set forth in this Agreement, nor will it waive any rights of MMCAP Infuse or Members to seek any and all available legal and equitable remedies. Vendor acknowledges that the fees set forth above are not penalties, but rather seek to make MMCAP Infuse and Members whole for any failure of performance by the Vendor, as based upon good faith estimates as agreed to by the parties.

5.7 Dispute Resolution. Vendor and MMCAP Infuse will handle dispute resolution for unresolved issues using the following procedure.

A. Notification. Parties shall promptly notify each other 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 MMCAP Infuse or Vendor may escalate the resolution of the…