Exhibit A Sample Agreemenet Vials and Containers.docx

MMCAP INFUSE XXXX

Vendor

XXXXX, 2020

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

[VENDOR]

: MMSXXXX

Prepared on ________, 2020

PREFIX A

Definitions and Acronyms Are attached and incorporated into the Agreement

Definitions

1. Administrative Fee: Means three percent (3%) of the _____________.

2. Authorized Wholesaler(s): _______________________ Comment by James D. Babbitt: For Indirect Sales

3. Class of Trade: All Members are eligible for Pricing.

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

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

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

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

8. Onboarding Date: Means the Vendor must allow new Members to access to the Agreement within seven (7) days of notice by MMCAP Infuse and/or the completion of the required paperwork on Attachment D.

11. Pricing: Means the price that the Vendor has agreed to provide the Products to MMCAP Infuse and its Membership as set forth on Attachment A and any subsequent amendment to this Agreement.

A. Fixed Pricing: Means Vendor cannot increase the Pricing for the Products identified on Attachment A or any subsequent amendment to this Agreement during the Agreement Term.

B. Non-Fixed Pricing: Means all Products identified as such on Attachment A or any subsequent amendment to this Agreement.

C. Wholesale Acquisition Cost (WAC) Minus - a percentage or dollar amount off WAC that changes by providing MMCAP Infuse prior written notice of the price change along with the new WAC and price.

12. Primary Account Representative: ______________ (Name, Title, Email, Phone):

13. Products: Means all products offered by the Vendor in this Agreement, which is identified in Attachment A

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

AGREEMENT FOR MMCAP INFUSE NO. XXXXXXX

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 ____________, a limited liability company/corporation with an address of __________________ (“Vendor”).

Agreement Term:

1. Effective Date: _________, or the date MMCAP Infuse obtains all required signatures as required under Minnesota Statute, whichever is later.

2. Expiration Date: ________.

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: Products and Pricing

3. Attachment B: Further Discounts (if applicable)

4. Attachment C: Further Scope

5. Attachment D: Required Member Onboarding Forms (if applicable)

6. Attachment E: Reporting Requirements

7. Attachment F: 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 Pricing Structure: Pricing for Products are listed on Attachment A.

1.3 Fixed Pricing. Vendor must hold pricing for Products firm for at least two (2) year from the Effective Date and Products firm for at least one (1) year from the Effective Date. Each time pricing is changed, the Vendor must wait one (1) year from the change date to amend the pricing again.

A. Price Reductions. After the Effective Date, Vendor may submit to MMCAP Infuse price reductions but must notify MMCAP Infuse before they can take effect.

B. Price Increases. Vendor must wait at least two (2) years from the Effective Date before it can submit a price increase. Price increases will only be accepted with (i) at least 30/60/90 days’ written notice; (ii) a force majeure condition can be established; (iii) and is approved by MMCAP Infuse. Except as provided for in this Agreement, no fee, percentage, or other cost may be added to the products purchased under this Agreement unless the fee, percentage, or cost is defined and approved in writing by MMCAP Infuse.

1.4 Non-Fixed Pricing. All Non-Fixed Pricing requires notice of increases be submitted to MMCAP Infuse at least ninety (90) days before the requested increases may take effect. Vendor cannot increase prices until one hundred twenty (120) calendar days after the Effective Date of the Agreement. In the event of any price reductions, Vendor will advise MMCAP Infuse as set forth on Paragraph 1.3(A).

1.5 Wholesale Acquisition Cost (WAC) Minus Percentage or Dollar Pricing. If specifically noted on Attachment A that the prices are a percentage or price off WAC, the price may be changed by providing MMCAP Infuse at least five (5) business days’ prior written notice of the price change along with the new WAC and pricing. Notices of WAC increases must be sent to MMCAP Infuse. In the event Vendor does not notify MMCAP Infuse of a WAC increase, Vendor must honor wholesalers’ chargebacks for the most recent previous pricing until such time as MMCAP Infuse receives notice of the WAC increase.

1.6 Notice to MMCAP Infuse: Vendor must provide justification for all price increases. In the event Vendor does not notify MMCAP Infuse of a price increase, Vendor must honor wholesalers’ chargebacks for the most recent previous Price until such time as MMCAP Infuse receives notice of and approves the price increase.

1.7 Notice to Authorized Wholesalers. The Vendor must notify any and all Authorized Wholesalers of price changes. If Vendor fails to send price notification(s), Vendor agrees to honor all chargebacks at the lower Pricing until such time the Authorized Wholesalers receive notice of and approves the price change. Vendor must confirm with MMCAP Infuse that price changes have been sent to the Authorized Wholesalers.

1.8 Competitive Pricing. If MMCAP Infuse is made aware and determines during the Agreement Term Vendor is offering better Pricing and/or Products to another group purchasing organization or Government Unit, Vendor will have ten (10) days to work with MMCAP Infuse to amend this Agreement to provide MMCAP Infuse the same Pricing and/or Products.

1.9 Member Fees. In the event a Member requires a fee, assessment, and/or costs in addition to the Pricing; those fee, assessment, 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. Comment by James D. Babbitt: For direct sales only

1.10 Value-Added Programs. Members must be offered any programs normally offered to the Vendor’s general customer base (e.g., rebates, tiered pricing, continuing education courses, marketing information, etc.) at the same or lower cost as that offered to the general customer base.

1.11 Changes. Any changes to this Agreement, including but not limited to Product additions/deletions, price changes, NDC changes, changes to terms and conditions, etc., must be made in writing as an amendment and must be fully executed by the effective date of the amendment. With the exception of changes to Pricing which are subject to Paragraph 1.12, Vendor must send confirmation of amendment changes, including but not limited to additions/deletions, NDC changes, Product removals, etc., to the Authorized Wholesalers within two (2) business days of the time that documentation of the change is received by the Vendor from MMCAP Infuse. If MMCAP Infuse’s Authorized Wholesalers do not receive the notification(s), Vendor agrees to honor all chargebacks at the Pricing from the effective date indicated on the amendment. Vendor-generated Product offers, and notifications may be used as amendments to Attachment A by submitting to MMCAP Infuse a letter on Vendor’s letterhead with the following elements (Offer Letter):

A. Offer Date B. MMCAP Infuse Contract Number C. Action (e.g., addition, deletion, price change, NDC conversion) D. UNSPSC/NDC Number E. Product Description F. Packaging G. Most recent previous Price H. New Price I. Pricing Type J. Effective Date K. Signature of an individual authorized to bind Vendor’s change to contract.

Upon written acceptance by MMCAP Infuse, Offer Letter will automatically amend Attachment A of this Agreement. If MMCAP Infuse indicates that aspects of the Offer Letter conflict with Agreement at that time, Paragraph 11.5 will apply to any subsequent conflicts and/or issues that may arise subsequently. If MMCAP Infuse executes the Offer Letter and provides counters, the Vendor has fifteen (15) days to object to MMCAP Infuse’s counters before they are deemed as accepted by Vendor. In the event the Vendor is unwilling or unable to provide offers in this format, MMCAP Infuse will draft all amendments. Vendor must countersign the amendments drafted by MMCAP Infuse to be incorporated into the Agreement. Amendments must be countersigned by the Vendor by the earlier of the following (A): fifteen (15) days; or (B) the Expiration Date.

ARTICLE II

SUPPLYING AND AVAILABILITY

2.1 Authorized Wholesaler Requirements. Vendor will notify the Authorized Wholesalers of the initial Products and Pricing and any subsequent changes. Comment by James D. Babbitt: If Indirect A. All sales of Products to Members must be through the Authorized Wholesalers unless previously authorized in writing by MMCAP Infuse. Direct sales to Members without written authority may result in immediate termination of this Agreement at the sole discretion of MMCAP Infuse.

B. Vendor must establish and maintain chargeback agreement(s) with the Authorized Wholesalers.

C. Vendor must notify MMCAP Infuse immediately of any issues (e.g., failure to negotiate terms, etc.) with Authorized Wholesalers that could affect the Contract Products’ availability. Notices must be sent to: MMCAP_Infuse.Contracts@state.mn.us.

2.2 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, whether it is direct sales to the Members or through wholesalers. It is expected that the Vendor will be able to fulfill a combined direct and/or wholesaler purchase volume of 150% of the Members’ previous quarter’s volume; if Vendor cannot fulfill orders made by Members directly to the Vendor and/or a wholesaler Vendor stock outage will be considered a failure to perform by the Vendor. In addition to the policy in Attachment XXXX:, 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 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, the Member may purchase the same or equivalent Product from an alternative MMCAP Infuse vendor, or if unavailable through an alternative MMCAP Infuse vendor, Member may purchase an alternative equivalent Product on the open market, including retail, for the period in which the Vendor is unable to provide the Products. The Vendor will reimburse for any excess 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.

i. Vendor must pay claims directly to the Member’s wholesaler within thirty (30) days of receipt of a claim. The Member has the right to charge, and Vendor agrees to pay, a late fee equal to the statutory maximum allowable percentage per month of the amount of any claim within thirty (30) days from receipt of the claim.

ii. Force Majeure: Any instances of Force Majeure, as identified in Paragraph 4.4, will exempt Vendor from providing a credit to Member.

C. Vendor will be responsible for all product outage claims for 180-calendar days unless the Vendor has provided MMCAP Infuse with at least 180 calendar days’ advanced written notice of the intent to remove a Product from production and discontinue distribution in the market. Vendor will remain responsible for all claims during the 180-day notice period.

2.3 Product Dating. All Products supplied to Members must have an expiration date of at least eighteen (18) 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. For Products that have expiration dates of less than six (6) months, Vendor will (A) discount the Product no less than twenty percent (20%); (B) Member must be notified and provided written consent before delivery; and (C) Products must be usable for at least fifteen (15) days on the date received by Member.

2.4 Product Discontinuation. If the Vendor assigns, discontinues, or deletes a Product during the Agreement, Vendor must provide written notice to MMCAP Infuse at least sixty (60) days prior. [indirect sales] If the Vendor removes a Product, the Vendor will honor Pricing until the wholesalers’ inventories are depleted or an agreed upon removal date. If inventory is depleted prior to the end of the sixty (60) day period, Paragraph 2.2 will apply.

2.5 Products Returned to the Vendor. Vendor will accept returns in accordance with applicable laws, regulations, and normal business practices.

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

2.7 Backorders. Vendor must provide written notice of all Product backorders expected to last longer than thirty (30) calendar days and/or inability to supply situations to MMCAP Infuse within twenty-four (24) hours of the knowledge of the situation. Notices must include the reason(s) for and the expected duration of the issue. Notices must be sent to: MMCAP_Infuse.Contracts@state.mn.us.

ARTICLE III

PAYMENT, ORDERS, AND DELIVERY

3.1 Conditions of Payment. All Products 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.

3.2 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.

3.3 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.

3.4 Orders. As a condition for purchasing under this Agreement, purchasers must be Members in good standing with MMCAP Infuse. Vendor may use their own Order Forms. To the extent that the terms of any Order Form(s) conflict with the terms of this Agreement, the terms of this Agreement supersede. Each Member will be responsible for payment for Products 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.

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

3.5 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 Products 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 Products under the Order Form are prohibited, or the Member is prohibited from paying for the Products from the planned funding source; or C. Vendor commits any material breach of this Agreement or Order Form.

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

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

3.7 Shipment for Products. Vendor must distribute and deliver the Products 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. 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 to Member before a purchase is made.

A. Delivery Schedule: Upon request from Member, Vendor will work with Member to establish a routine delivery schedule. Delivery for stock items will occur within three (3) business days, from the date the Product is ordered. It is understood that deliveries to Alaska or Hawaii may take longer. All expedited deliveries will be made next day, or on the next scheduled delivery day (excluding Alaska and Hawaii), unless communicated otherwise.

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

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

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

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

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

3.8 Invoicing. Vendor will submit an invoice with each order.

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

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

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

iii. Bill to and ship to address;

iv. Invoice date;

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

vi. Unit price, quantity ordered, quantity shipped, extension (unit price multiplied by the quantity shipped), and total invoice price; and

vii. Applicable omit codes (e.g., manufacturer backorder, manufacturer discontinued, etc.).

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.

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.

3.9 Payment Terms…..

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

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

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

C. If directed by a Member, a credit can be transferred from one account to another account.

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

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

i. original order number and invoice number;

ii. itemized listing of the Contract Items affected;

iii. any new invoices associated with the credit; and

iv. Net credit amount available to the Member.

3.11 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. Comment by James D. Babbitt: Moved to Article 2 if direct sales is not applicable.

ARTICLE IV

TERMINATION, CANCELLATION, AND REMEDIES

4.1 Cancellation. MMCAP Infuse may cancel this Agreement any time, without cause, upon thirty (30) days’ written notice to the Vendor.

4.2 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 thirty (30) days, the breaching party has not cured the defects, the moving party may terminate this Agreement after ten (10) subsequent days.

4.3 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 Products covered here. Termination must be by written or electronic mail notice to the Vendor. MMCAP Infuse is not obligated to pay for any Products 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 Products 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 Products.

4.4 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 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.

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

4.6 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: $500/day, until resolved.

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: In connection with this Agreement, if the Vendor denies pricing to any class of trade that has not been pre-approved by MMCAP Infuse, Vendor will pay MMCAP Infuse $200/per violation.

E. Adding and Removing Members. Every time the Vendor fails to meet the timeline requirements in this Agreement to add or remove a Member’s eligibility to purchase Products, Vendor will pay MMCAP Infuse $1,500/per violation.

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.

4.7 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 issue to a higher level of management. When escalated a teleconference will be scheduled between MMCAP Infuse and the Vendor to review the dispute and develop a proposed resolution and plan of action.

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

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

ARTICLE V

MEMBERSHIP

5.1 Onboard, Transition, and Implementation. If the Vendor requires additional paperwork for Members to acquire the Products, Vendor will work with MMCAP Infuse and Members to determine the appropriate steps and schedule for an onboard and transition. Vendor’s documents and/or procedure for implementing and transitioning Members to this Agreement is set forth on Attachment D.

5.2 Membership Listing. MMCAP Infuse will provide Vendor a complete listing of the Membership. MMCAP Infuse reserves the right to add and remove Members during the Agreement Term.

A. New Members. The Vendor must allow new Members to access the Agreement by the Onboarding Date. MMCAP Infuse will provide Vendor with online access to its Membership list, which is updated daily. MMCAP Infuse will send Vendor a monthly e-mail with instructions on how to obtain the Membership list.

B. Removing Members. Vendor must provide MMCAP Infuse written notification at least thirty (30) days prior to removing any Member. If MMCAP Infuse does not receive notification that a Member has been removed from Pricing, Vendor will honor Pricing for the Member for thirty (30) days after MMCAP Infuse receives the written notice.

5.3 Membership Eligibility. Upon request, Vendor will send an electronic eligibility list identifying which Members are eligible for Pricing to: MMCAP_Infuse.Contracts@state.mn.us.

A. If the Vendor has eligibility requirements, Vendor must provide MMCAP Infuse access to Vendor’s online contract and eligibility management system in addition to providing MMCAP Infuse the algorithm it uses to categorize a Member’s class of trade. Comment by James D. Babbitt: Direct only

5.4 Member Attachment: Vendor will ensure Members are attached to the Agreement for all Product purchases made by Member. Upon request of MMCAP Infuse, Vendor must verify only the Membership has access to the Pricing and Products. Failure to do may result in immediate termination.

5.5 Non-Solicitation. During the term of this Agreement, Vendor will not solicit any Members or prospective Members to enter into or negotiate a separate contract or agreement for the same or substantially equivalent products offered in this Agreement without MMCAP Infuse’s prior written consent. Vendor is not prohibited from responding to a request for proposals issued by a Member that may include Products covered by this Agreement.

5.6 DEA License/HIN. Unless the Member purchases a controlled substance, the Vendor may not require that a Member have a Drug Enforcement Administration number assigned to it in order to be eligible for contracted prices. The Vendor may require a Health Industry Number from Member, which MMCAP Infuse will work with the Member to obtain.

5.7 Product Use. All items acquired by Members under this Agreement are purchased for consumption in traditional governmental functions and not for the purpose of competing against private enterprise.

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

ARTICLE VI

AGREEMENT MANAGEMENT

6.1 Primary Account Representative. Vendor will assign a Primary Account Representative to MMCAP Infuse for this Agreement and must provide a minimum of seventy-two (72) hours advanced notice to MMCAP Infuse if that person is reassigned. In the event that the Primary Account Representative is unresponsive or does not meet MMCAP Infuse’s needs, the Vendor will assign another Primary Account Representative upon MMCAP Infuse’s request. The Primary Account Representative will be responsible for:

A. Proper maintenance and management of the Agreement, including timely execution of all amendments.

B. Timely response to all MMCAP Infuse inquiries C. Performance of the business review as described in Paragraph 6.2.

D. Personnel Changes. Vendor will provide MMCAP Infuse with written advance notice of changes to the Primary Account Representative. In the event that an employee is removed pursuant to a written request from MMCAP Infuse, the Vendor will have ten (10) business days in which to fill the role with an acceptable employee.

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

ARTICLE VII

WARRANTS, COVENANTS, AND DUTIES OF VENDOR

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

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

7.3 FDA-Certified Drug Application. The Vendor acknowledges that each Product has, if required by law, an FDA-certified New Drug Application, an Abbreviated New Drug Application, or a Biologics License Application on file and accepts the liability with which such application confers. The Vendor guarantees to furnish Products that have not been adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, or any regulation of the Federal Food and Drug Administration, or as required by each Member’s applicable regulatory board.

7.4 cGMP Vendor certifies that it is in compliance with the Food and Drug Administration’s current “Good Manufacturing Practices” (cGMP) and the current United States Food, Drug, and Cosmetic Act. If the Vendor receives a 483 or similar type warning letter for any Product, it must be provided to MMCAP Infuse within ten (10) days of receipt by Vendor.

7.5 Health Care Product Regulations: Vendor acknowledges that each Product has, if required by law, a United States Food and Drug Administration approval or authorization on file and accepts the liability with which such application confers. Additionally, all Products should meet applicable industry standards such as but not limited to standards set by ISO or UL. The Vendor guarantees to furnish no Product under this Agreement that is adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, or any regulation of the FDA, or as required by each Member State’s applicable laws, rules, or regulations.

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

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

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

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

B. Fraud and or deceit;

C. Actions that give rise to strict liability;

D. Breach of contract;

E. Breach of warranty;

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

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

7.8 Antitrust. The Vendor hereby assigns to the State of Minnesota any and all claims for overcharges as to services provided in connection with this Agreement resulting from antitrust violations that arise under the antitrust laws of the United States and the antitrust laws of the State of Minnesota, and/or the antitrust laws of any Member unless otherwise assigned directly to that Member by Vendor with MMCAP Infuse’s approval.

7.9 Product Warranty. Vendor warrants that all materials, supplies, services and/or equipment provider under this Agreement is fit for the purposes for which intended and conform to the requirements and specifications herein. The Vendor will provide a factory and/or manufacturer’s warranty that will cover 100% of parts, labor, material, and transportation for a Product for two (2) years from the invoice date.

ARTICLE VIII

ADMINISTRATIVE FEE AND REPORTING

8.1 Administrative Fee. In consideration for the administrative support and other services provided by MMCAP Infuse in connection to this Agreement, the Vendor agrees to pay an Administrative Fee on all purchases of Products made by Members regardless if it is to an Authorized Wholesaler or a direct purchase by Member.

A. Vendor must provide Administrative Fee data to MMCAP Infuse within ten (10) business days after the end of each calendar month. The Administrative Fee must be paid as soon as is reasonable after the end of each calendar month, but no later than thirty (30) calendar days after the end of the calendar month. The Vendor will submit a check payable to:

Financial Management & Reporting – MMCAP Infuse 50 Sherburne Avenue, Suite 309 St. Paul, MN 55155

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

8.2 Reporting. The Vendor must submit a monthly (1) administrative fee data report and (2) sales data report that includes both direct (sales made direct from Vendor to Member) and indirect purchases (sales made through an Authorized Wholesaler).

A. Administrative Fee Data Report: The monthly administrative fee data report must contain the fields detailed below and the sales data report requirements can be found on Attachment E. Vendor agrees that for indirect sales, chargeback or sales data received from Authorized Wholesalers will be utilized to create the administration fee data report and if additional reports are needed to support creation of the administration fee data report, Vendor agrees to bear the cost of any special reporting that may be required by the Vendor in its relationship with the Authorized Wholesalers. All administrative fee data reports must be sent to: mmcap.infuse@state.mn.us at the end of each month, but no later than thirty (30) days after the end of the month. The Vendor will provide a dedicated person.

i. Administrative Fee Data Report fields:

a. MMCAP Infuse Assigned Authorized Wholesaler Number (As applicable)

b. MMCAP Infuse Assigned Manufacturer Number

c. Direct or Indirect Purchase Indicator (I=Indirect, D=Direct)

d. Invoice Date (Point of Sale Date)

e. Invoice Number

f. MMCAP Infuse Member

g. Vendor’s Account Number for the MMCAP Infuse Member

h. MMCAP Infuse Member DEA Number, if applicable

i. MMCAP Infuse Member HIN Number, if applicable

j. MMCAP Infuse Member Address

k. MMCAP Infuse Member City

l. MMCAP Infuse Member State

m. Product’s NDC (Use all 11 digits (00076888888))

n. Product Name (e.g. Acetaminophen with Codeine, Acticin Cream 5%)

o. Credit Indicator (C = credit)

p. Contracted Units (The number of units purchased on contract.)

q. MMCAP Infuse Contracted Unit Price

r. Administrative Fee Decimal Percentage (The contracted administrative fee percentage for the NDC number. Report as a decimal (e.g. 0.030))

s. Vendor Contracted Sales (Contracted Units * Contracted Unit Price. Report in dollars) Administrative Fee Payment Amount (Administrative Fee Decimal Percentage * Vendor contracted sales. Report in dollars)

ii. Sales Data Usage Reports: Vendor will supply to MMCAP Infuse monthly sales data on or before the tenth (10th) day of the subsequent calendar month. The report must include Product dollar spend amount sorted in descending order and grouped by the Product category. Also, the report MUST include the information set forth on Attachment E.

ARTICLE IX

INTELLECTUAL PROPERTY

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

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

9.3 Pre-Existing Intellectual Property. MMCAP Infuse and Vendor will each retain ownership of, and all right and, title and interest in and to, their respective pre-existing intellectual property. The Vendor grants Minnesota a perpetual, irrevocable, non-exclusive, royalty free license for Vendor’s pre-existing intellectual property that are incorporated in the products, materials, equipment, deliverables, or services that are purchased through the Agreement. The aforementioned license is solely for use by Members, and their agents related to an internal business or governmental purposes.

9.4 Vendor Obligations. The Vendor must perform all acts, and take all steps necessary to ensure that all intellectual property rights created for MMCAP Infuse or Member are the sole property of MMCAP Infuse or Member, and that neither Vendor nor its employees, agents, or subcontractors retain any interest in and to the works and documents. The Vendor represents and warrants that the works and documents do not and will not infringe upon any intellectual property rights of other persons or entities.

9.5 Intellectual Property Indemnification. The Vendor will indemnify; defend, to the extent permitted by the Attorney General; and hold harmless MMCAP Infuse, at the Vendor’s expense, from any action or claim brought against MMCAP Infuse to the extent that it is based on a claim of an infringement upon the intellectual property rights of others. The Vendor will be responsible for payment of any and all such claims, demands, obligations, liabilities, costs, and damages, including but not limited to, attorney fees. If such a claim or action arises, or in the Vendor’s or MMCAP Infuse’s opinion is likely to arise, the Vendor must, at MMCAP Infuse’s discretion, either procure for MMCAP Infuse the right or license to use the intellectual property rights at issue or replace or modify the allegedly infringing works or documents as necessary and appropriate to obviate the infringement claim. This remedy of MMCAP Infuse will be in addition to and not exclusive of other remedies provided by law.

9.6 Publicity and Endorsement. Any publicity regarding the subject matter of this Agreement must identify MMCAP Infuse as a sponsoring or endorsing agency and must not be released without prior written approval from MMCAP Infuse.