RFP26-149 Draft Consulting Services Agreement.docx

CONSULTING SERVICES AGREEMENT

THIS CONSULTING SERVICES AGREEMENT (this or the “Agreement”), entered into as of [Date] (the “Effective Date”), is by and between ROSWELL PARK CANCER INSTITUTE CORPORATION d/b/a ROSWELL PARK COMPREHENSIVE CANCER CENTER, a New York public benefit corporation with its principal place of business located at Elm and Carlton Streets, Buffalo, New York 14263 (“Roswell Park”), and [VENDOR’S LEGAL NAME], a [State of Formation] [Entity Type] with its principal place of business located at [Address], [City, State Zip Code] (“Vendor”). Roswell Park and Vendor are also individually referred to herein as a “Party”, and collectively as the “Parties”.

W I T N E S S E T H:

WHEREAS, Roswell Park operates a National Cancer Institute-designated comprehensive cancer center engaged in research, education, clinical trials, and prevention activities relating to cancer in its various forms, as well as diagnosis and treatment of cancer and related diseases; and

WHEREAS, Vendor is a company with experience providing financial and operational performance improvement consulting services; and

WHEREAS, Roswell Park has identified the need for financial and operational performance improvement consulting services; and

WHEREAS, pursuant to applicable competitive bidding laws and statutes, Roswell Park issued Request for Proposal RFP # 26-149 for Workday Certified Service Partner (On-Demand Support Services) dated June 26, 2026 (the “RFP”); and

WHEREAS, Vendor submitted a response to the RFP which Roswell Park has determined represents the best value to Roswell Park after evaluation in accordance with the criteria set forth in the RFP; and

WHEREAS, Roswell Park wishes to engage Vendor, as a successful respondent of the RFP, to provide financial and operational performance improvement consulting services as further described in this Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

1. ENGAGEMENT.

1.1 Services. Roswell Park hereby engages Vendor to perform the services as described in individual statements of work (each an “SOW”) in a form similar to that which is attached as Schedule 1 (Form of Statement of Work) to this Agreement (the “Services”), and Vendor hereby accepts such engagement. The Services shall include Vendor’s creation and delivery of any written analyses, recommendations, presentations, reports, and other written materials as described in each SOW (each, a “Deliverable”).

1.2 Acceptance. Roswell Park shall have fifteen (15) business days from its receipt of a Deliverable to accept or reject the Deliverable in writing. In the event that Roswell Park rejects a Deliverable, Roswell Park will specify the basis for such rejection, in writing, and the Vendor shall have fifteen (15) business days to address any deficiencies to Roswell Park’s satisfaction.

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

2. TERM, TERMINATION, AND SURVIVAL.

2.1 Term.

2.1.1 Agreement Term. The initial term of this Agreement shall commence on the Effective Date and continue for three (3) years (the “Initial Term”). Thereafter, the term of this Agreement shall renew in writing for two (2) successive one (1) year periods (each, a “Renewal Term”). The Initial Term and all Renewal Terms are collectively referred to as the “Term”.

2.1.2 SOW Term. Each SOW shall commence on the effective date stated therein (each, an “SOW Effective Date”) and continue for the time period specified therein, or, if no time period is specified in an SOW, then such SOW shall continue until Vendor’s successful completion of the Services and acceptance thereof by Roswell Park (each, an “SOW Term”).

2.2 Termination.

2.2.1 Termination for Convenience. Roswell Park may terminate this Agreement or any SOW at any time upon thirty (30) days’ prior written notice to Vendor.

2.2.2 Termination for Cause. Either Party may terminate this Agreement or any SOW in the event that the other Party is in breach of this Agreement or any such SOW and fails to cure such breach within thirty (30) days from the breaching Party’s receipt of written notice from the non-breaching Party setting forth the nature of the breach.

2.2.3 Automatic Termination of SOWs. Termination of this Agreement shall cause any SOW in effect at the time of termination to terminate simultaneously.

2.3 Survival. Provisions of this Agreement and each SOW that remain to be performed, or by their nature are intended to be applicable following expiration or termination, shall survive such expiration or termination, including, but not limited to, provisions pertaining to confidentiality, privacy and security, intellectual property, warranty, liability, indemnification, and record retention.

3. COMPENSATION.

3.1 Compensation. In exchange for the Services, Roswell Park shall compensate Vendor in accordance with the pricing set forth in Schedule 2 (Compensation Schedule) to this Agreement, as will be memorialized in each SOW. With respect to compensation on an hourly basis, Vendor shall only be compensated for hours actually worked and not be for travel time or other downtime. With respect to compensation based on milestones and/or Deliverables, Vendor shall only be compensated for milestones that have been successfully achieved in accordance with the criteria set forth in the applicable SOW, and for Deliverables that have been accepted by Roswell Park in accordance with the criteria set forth in Section 1.2 of this Agreement. For Services prepaid by Roswell Park, upon expiration or termination of this Agreement or the applicable SOW, Vendor shall provide a pro-rated refund to Roswell Park for any unused portion of such prepaid fees for Services not yet performed, including, for the avoidance of doubt, Deliverables not yet delivered, as of the date of expiration or termination.

3.2 Expense Reimbursement. Notwithstanding any language to the contrary, Vendor is not eligible for reimbursement of any travel, out-of-pocket, or other similar expenses under any SOW.

3.3 Invoicing. Vendor shall submit invoices to Roswell Park in accordance with the applicable SOW and the instructions set forth in the Roswell Park-issued purchase order and shall reference the purchase order by number and date. Notwithstanding any language to the contrary, terms and conditions stated or referenced in Vendor’s invoices are null and void. Invoices shall be accompanied by any reporting required under Appendix A-1 (EEO Requirements) to this Agreement (if applicable). Vendor must provide itemized billing by consultant, clearly identifying services rendered. All time charged must reflect actual time spent performing the work and shall be recorded in 0.25 hour (fifteen-minute) increments, without rounding up or otherwise inflating time.

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

3.5 Change of Payment Remittance Details. If Roswell Park receives instruction from Vendor, or an entity purporting to be Vendor, to change Vendor’s payment remittance details, then, notwithstanding anything to the contrary, Roswell Park’s payment obligations under this Agreement, including, for the avoidance of doubt, under all SOWs, shall freeze, and the Parties shall promptly work in good faith to confirm that the instructions are not fraudulent. Vendor may not suspend Services during or because of a payment freeze pursuant to this Section 3.5.

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

3.7 Price Protection. The pricing set forth in Schedule 2 (Compensation Schedule) to this Agreement shall be fixed for the initial one (1) year term. Thereafter, Vendor shall be entitled to increase such pricing one (1) time per calendar year upon sixty (60) days’ prior written notice to Roswell Park by an amount not to exceed three percent (3%).

4. APPLICABLE LAW. Vendor shall comply with all Applicable Law in its performance of this Agreement and each SOW, including, but not limited to, obtaining and maintaining all certifications, credentials, authorizations, licenses, and permits necessary to perform Vendor’s obligations under this Agreement and each SOW in accordance therewith. “Applicable Law” means all applicable federal, state, and local laws, ordinances, rules, and regulations, including, but not limited to, the relevant regulations of any governmental agency or quasi-governmental organization. All references in this Agreement or any SOW to any laws, ordinances, rules, and regulations mean such, as may be amended, from time-to-time.

5. ONSITE ACTIVITY. To the extent that Vendor performs any Services onsite at Roswell Park facilities, Vendor shall comply with all policies, procedures, rules, and regulations applicable to Vendor’s onsite activity and made available to Vendor, including, without limitation, onboarding requirements (e.g., verification of credentials, health screening, and proof of vaccination/inoculation), and any other conditions imposed by governmental authorities, accrediting agencies, and/or Roswell Park as necessary to protect the health and safety of Roswell Park’s patients, staff, volunteers, visitors, and vendors. Vendor shall not engage in any onsite activity that is in violation of, or would cause Roswell Park to be in violation of, state and county Department of Health regulations and guidance, requirements of The Centers for Medicare and Medicaid Services (“CMS”), the standards of The Joint Commission, or other Applicable Law.

6. CONFIDENTIALITY.

6.1 Confidential Information Defined. During the course of this Agreement and each SOW, either Party may receive or have access (“Receiving Party”) to the other Party’s (“Disclosing Party”) Confidential Information (as defined herein). “Confidential Information” means non-public information of Disclosing Party received or accessed by or on behalf of Receiving Party in connection with this Agreement and each SOW, whether orally, visually, in writing, or electronically, that is identified orally or in writing as confidential, secret, or proprietary, or, if not so identified, would be reasonably understood by an individual practicing in the industry to be confidential, secret, or proprietary given its nature, including, but not limited to, information regarding Disclosing Party’s: methods of operation; research and development, including, but not limited to, strategies and clinical and pre-clinical research studies; clinical activities, patient volumes, and demographics; strategic plans, goals, and forecasts; budgets and finances, including, but not limited to, financial statements, analyses, projections, and results; network and computer systems; marketing plans, strategies, campaigns, and related activities; manufacturing activities, processes, and methods, including, but not limited to, product designs and product development plans; patients, clients, employees, vendors, and customers, including, but not limited to, lists, demographics, and similar information; know-how, intellectual property, technology, licensing, and inventions (whether or not marketable or patentable); reimbursement rates and methods; and information received from third parties; including, but not limited to, information disclosed in the form of documents, presentations, reports, materials, evaluations, databases, electronic communication, oral communication, or any other format.

6.2 General Obligations.

6.2.1 Maintaining Confidentiality. Receiving Party shall maintain the confidentiality of all Confidential Information and shall protect such Confidential Information from unauthorized access, use, and disclosure using the same degree of care that Receiving Party uses to protect its own confidential information of similar nature and importance, but in no event less than a reasonable degree of care. Receiving Party’s obligations of confidentiality and non-use shall survive the expiration or termination of this Agreement, for any reason, and shall continue in full force and effect for a period of five (5) years thereafter.

6.2.2 Use and Disclosure. Receiving Party may use Confidential Information solely as necessary to perform its obligations under this Agreement and each SOW, and may only disclose Confidential Information to: (i) employees of Receiving Party who have a need to know such Confidential Information, provided that Receiving Party shall take appropriate measures by written instruction or agreement prior to disclosure of Confidential Information to its employees to insure against unauthorized uses or disclosures by such individuals; (ii) employees of a subcontractor, consultant, advisor, or affiliate of Receiving Party who have a need to know such Confidential Information, provided that the applicable entity first executes a nondisclosure or other agreement with Receiving Party that contains terms and conditions that are no less restrictive than those set forth in this Section 6; and (iii) the extent required by law, court, or other governmental order, rule, or regulation, provided that Receiving Party: (a) gives Disclosing Party prompt written notice of the compelled disclosure (to the extent legally permitted); (b) gives Disclosing Party reasonable assistance, at Disclosing Party’s sole expense, if Disclosing Party wishes to contest the disclosure; and (c) only discloses the portions of the Confidential Information that are necessary in order to comply with such request. Receiving Party remains liable for its employees’, subcontractors’, consultants’, advisors’, and affiliates’ compliance with the terms of this Section 6. Upon the effective date of the expiration or termination of this Agreement, for any reason, Receiving Party will no longer access, use, or disclose any Confidential Information.

6.3 Restrictions on Use and Disclosure.

6.3.1 Unauthorized Persons. Receiving Party shall not disclose Confidential Information to any other person other than persons authorized in Section 6.2.2 of this Agreement without the express written approval of Disclosing Party.

6.3.2 Copies. Unless otherwise expressly authorized by Disclosing Party in writing, and except as otherwise authorized under Section 6.6 of this Agreement, Receiving Party shall not make any copies of any Confidential Information.

6.3.3 Notification of Violations. Receiving Party shall promptly notify Disclosing Party in writing of any use or disclosure of Confidential Information in violation of this Section 6.

6.4 Exceptions. Confidential Information shall not include information that Receiving Party can demonstrate: (i) is or becomes known or available to the general public through no fault of Receiving Party; (ii) is already in Receiving Party’s possession prior to accessing or receiving such in connection with this Agreement or any SOW and was not subject to an obligation of confidentiality owed to Disclosing Party at the time such information came into the possession of Receiving Party; (iii) becomes available to Receiving Party on a non-confidential basis from a third party who has a right to make such disclosure and is not in violation of confidentiality obligations owed to Disclosing Party; or (iv) is independently developed by Receiving Party without use of, or access or reference to, the Confidential Information.

6.5 Ownership. The Parties agree that: (i) Confidential Information (including, but not limited to, all intellectual property and proprietary rights therein and related thereto) is and shall remain the sole and exclusive property of Disclosing Party or Disclosing Party’s applicable licensors; (ii) no license to Confidential Information is granted to Receiving Party; and (iii) the disclosure of, or access to, Confidential Information provided for herein shall not be construed as granting any license to Receiving Party to any Confidential Information, including, for the avoidance of doubt, to any intellectual property or proprietary rights included within or associated therewith.

6.6 Destruction or Return. Upon expiration or termination of this Agreement, or at any other time upon Disclosing Party’s written request, Receiving Party shall, at the direction of Disclosing Party, promptly destroy or return all Confidential Information that Receiving Party maintains or possess in any form, in its entirety (including, but not limited to, electronic and paper copies, extracts and summaries thereof, and other materials that incorporate the Confidential Information), provided that Receiving Party may retain one (1) copy of Confidential Information solely as necessary to comply with Applicable Law and/or to monitor its continuing obligations under this Section 6. Notwithstanding the foregoing, Receiving Party shall not be required to destroy or return Confidential Information that is automatically stored in its routine archiving and back-up procedures provided that Receiving Party protects the Confidential Information in accordance with the terms of this Section 6, and limits further use of the Confidential Information to those purposes that make the destruction or return infeasible, for as long as it is retained.

6.7 Irreparable Harm. The Parties acknowledge and agree that use or disclosure of Confidential Information contrary to the provisions of this Section 6 may cause irreparable harm to Disclosing Party for which damages at law may not be an adequate remedy, and the Parties further agrees that Disclosing Party will be entitled to seek injunctive relief to enjoin the breach of any provisions of this Section 6 and/or to specifically enforce any of Receiving Party’s obligations under this Section 6, in addition to any and all other remedies available to Disclosing Party at law or in equity.

7. HIPAA COMPLIANCE. As of the Effective Date, the Parties agree that Vendor qualifies as a “business associate” (as defined under 45 CFR Section 160.103) of Roswell Park under this Agreement. The Business Associate Agreement dated [Date], by and between the Parties (the “BAA”), and the requirements set forth in Appendix C (Information and System Security Requirements) to this Agreement, shall govern the accessing, creation, receipt, and maintenance by Vendor of any PHI (as defined under 45 CFR Section 160.103).

8. INFORMATION AND SYSTEM SECURITY. Vendor shall comply with the information and system security requirements set forth in Appendix C (Information and System Security Requirements) to this Agreement.

9. INDEMNIFICATION. Vendor, on behalf of itself, its Subcontractors, and their respective employees and agents (collectively, “Indemnitor”), shall indemnify, defend, and hold harmless Roswell Park and Roswell Park’s officers, directors, employees, and agents (collectively, the “Indemnitees”) from and against any damages, losses, expenses, costs, claims, obligations, and liabilities (including reasonable attorneys’ fees and costs) (collectively, “Losses”) to the extent arising out of: (i) Indemnitor’s: (a) negligence, willful misconduct, or fraud; (b) violation of Applicable Law; (c) breach of contract; or (d) infringement of a third party’s intellectual property or proprietary right; or (ii) property damage, bodily injury, or death resulting from the acts or omissions of Indemnitor. Notwithstanding the foregoing, Indemnitor shall have no obligation to indemnify the Indemnitees to the extent a Loss arises out of Roswell Park’s negligence, willful misconduct, fraud, violation of Applicable Law, breach of contract, or infringement of a third party’s intellectual property or proprietary right.

10. DAMAGE TO ROSWELL PARK PROPERTY. Vendor shall be responsible for any damage to Roswell Park’s real, personal, or intellectual property caused by Vendor or its Subcontractors, including, without limitation, Roswell Park Technology (as defined in Section 1.20 of Appendix C [Information and System Security Requirements] to this Agreement) and Roswell Park Data (as defined in Section 1.19 of Appendix C [Information and System Security Requirements] to this Agreement).

11. WARRANTY. Vendor represents and warrants that the Services will be performed: (i) in a timely, efficient, professional, and workmanlike manner consistent with generally accepted industry standards and practices; (ii) in accordance with Applicable Law, this Agreement, and the applicable SOW; and (iii) by individuals with the necessary licensure (if applicable), qualifications, skill, and training. Vendor further represents and warrants that the Deliverables will be free from defects and will meet the requirements and specifications set forth in the applicable SOW. In the event that any Services are defective or otherwise do not conform to the foregoing warranty, Roswell Park shall notify Vendor in writing (by mail or email). Upon receipt of such notice, at Roswell Park’s sole option, Vendor shall promptly, and at its sole expense: (a) reperform the Services such that they comply with the foregoing warranty; or (b) issue Roswell Park a refund of fees paid for such Services.

12. INSURANCE. Throughout the Term, Vendor shall maintain the minimum insurance coverages, and shall comply with the minimum insurance requirements, set forth in Appendix B (Insurance Requirements) to this Agreement.

13. GOVERNING LAW, JURISDICTION, AND VENUE. This Agreement and each SOW shall be governed by and construed in accordance with the laws of the state of New York, without regard to its conflict of laws principles. Disputes arising out of or relating to this Agreement or any SOW shall be brought in a court of competent jurisdiction in Erie County, New York.

14. CMS ACCESS TO BOOKS AND RECORDS. In accordance with 42 C.F.R. Section 420.302 and Section 1861(V)(1)(I) of the Social Security Act, if this Agreement or any SOW involves the provision of services that are subject thereto, the cost or value of which is $10,000 or more over a twelve (12)-month period, until the expiration of four (4) years after the furnishing of such services, Vendor shall make available to the United States Department of Health and Human Services (“HHS”), and to the United States Comptroller General, and their duly authorized representatives, a copy of this Agreement, the applicable SOW, as well as Vendor’s, its subcontractors’, and its related organizations’ related contracts, books, documents, and records as necessary to certify the nature and extent of the costs of such services performed.

15. WARRANTY OF NON-EXCLUSION. Vendor represents and warrants that, to the best of Vendor’s knowledge, neither Vendor, nor any of Vendor’s employees, independent contractors, or agents performing any work under this Agreement or any SOW, nor any of Vendor’s owners, officers, or directors (each, a “Screened Person”), is or has ever been an Ineligible Person. An “Ineligible Person” means a person who: (i) has been excluded, debarred, suspended, or otherwise deemed ineligible to participate in any federal or state healthcare or procurement program; (ii) has been convicted of a criminal offense that falls within the ambit of 42 U.S.C. Section 1320a-7(a); and/or (iii) appears on any of the following exclusion lists (collectively, the “Exclusion Lists”): (a) the HHS/Office of Inspector General List of Excluded Individuals and Entities (currently available at https://www.oig.hhs.gov/exclusions/index.asp); (b) the System for Award Management (formally the GSA’s List of Parties Excluded from Federal Programs) (currently available at https://sam.gov/content/exclusions/federal); and/or (c) the New York State Medicaid Exclusion List (currently available at https://omig.ny.gov/medicaid-fraud/medicaid-exclusions), as well as the state Medicaid database maintained by the state within which the Screened Person resides. If Vendor will supply health care-related items or services (e.g., supplying or servicing equipment or products used in patient care), Vendor shall screen all Screened Persons against the Exclusion Lists no less than annually. If Vendor will act as a contractor having authority within a required provider risk area (e.g., performing physician services, nursing services, billing or coding services) as described in 18 NYCRR Section 521-1.3, or Vendor will perform other services that are directly reimbursed by a federal or state healthcare program, Vendor will shall screen all Screened Persons against the Exclusion Lists no less than monthly, or such other frequency that may be required under Applicable Law. If, at any time during the Term, any Screened Person becomes an Ineligible Person, Vendor shall promptly notify Roswell Park in writing. Upon receipt of such notice, or upon Roswell Park otherwise determining that any Screened Person is an Ineligible Person, Roswell Park shall have the right to immediately terminate this Agreement or any SOW without penalty. Vendor shall provide Roswell Park with written evidence of compliance with this Section 15 upon request.

16. WORK MADE FOR HIRE. The Parties acknowledge and agree that all rights, including, without limitation, ownership, patent, copyright, and trademark, in and to any reports, analyses, presentations, surveys, or other work product prepared by Vendor pursuant to an SOW or otherwise resulting from the Services, including, for the avoidance of doubt, all Deliverables (collectively the “Work Product”), shall vest in Roswell Park. The Parties expressly acknowledge that the Work Product was specially ordered or commissioned by Roswell Park and further agree that the Work Product shall be considered a “work made for hire” within the meaning of the copyright laws of the United States. Vendor acknowledges and agrees that the Work Product, and all intellectual property rights therein and associated therewith, shall be the sole and exclusive property of Roswell Park, and that, as sole author and owner of the Work Product, Roswell Park has the right to use, disclose, and modify the Work Product as Roswell Park may determine, in its sole discretion. If, for any reason, the Work Product, or any portion thereof, would not be considered a work made for hire under United States copyright law, then Vendor does hereby grant, sell, assign, and transfer to Roswell Park, including to Roswell Park’s successors and assigns, all of Vendor’s intellectual property rights in and to such Work Product. Notwithstanding the foregoing, any intellectual property of Vendor which Vendor can demonstrate was in existence prior to the applicable SOW Effective Date and was not developed specifically for Roswell Park or resulting from the Services (“Vendor Intellectual Property”), shall remain the sole and exclusive property of Vendor, provided that Vendor hereby grants to Roswell Park and Roswell Park’s designees an unlimited, nonrevocable, royalty-free license to use and disclose Vendor Intellectual Property contained in any Work Product so that Roswell Park may enjoy full use of such Work Product as contemplated by this Section 16 and each SOW.

17. FORCE MAJEURE. Neither Party shall be responsible for delayed performance or non-performance under this Agreement or any SOW where such delay or non-performance is the direct result of unforeseeable events beyond the affected Party’s reasonable control, including acts of God, war, riots, flood, fire, epidemic, pandemic, or other circumstances of a similar nature (each a “Force Majeure Event”), provided that the affected Party takes commercially reasonable steps to circumvent such Force Majeure Events and resumes performance as soon as reasonably possible to do so. A Force Majeure Event shall not include events that are reasonably foreseeable or circumstances where the affected Party’s acts or omissions contributed to the delay or non-performance. If the affected Party’s performance is delayed or prevented for thirty (30) days or more due to a Force Majeure Event, the other party may terminate this Agreement or any SOW, without penalty, upon written notice to the affected Party.

18. NON-SOLICITATION. Beginning on the Effective Date and ending one (1) year following the expiration or termination of this Agreement, neither Party shall, directly or indirectly: (i) employ or solicit for employment or services any of the other Party’s employees; or (ii) influence or seek to influence any employee of the other Party to leave such Party’s employ. The foregoing shall in no way restrict a Party from publicly advertising positions for hire (e.g., in newspapers, in professional magazines, via employment agencies, via the internet, etc.). Furthermore, the restrictions in this Section 18 will not apply where an individual independently responds to an indirect solicitation (e.g., general newspaper advertisement, professional magazine advertisement, employment agency referral, internet posting, etc.) of the other Party which was not intended to target such individual.

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

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

21. INDEPENDENT CONTRACTOR. Vendor’s engagement under this Agreement and each SOW is that of an independent contractor. Neither this Agreement nor any SOW shall be construed to create a relationship of employer and employee, agent and principal, partnership, or joint venture between the Parties. Neither Party shall assume, either directly or indirectly, any liability of or for the other Party. Neither Party shall have the authority to bind or obligate the other Party and neither Party shall represent that it has such authority.

22. NOTICES. Any notice issued under this Agreement or any SOW shall be in writing and delivered to the address below by: (i) hand delivery; (ii) certified mail, return receipt requested; or (iii) commercial overnight carrier:

If to Roswell Park:

Roswell Park Cancer Institute Corporation Elm and Carlton Streets Buffalo, New York 14263 Attn: Vice President, Fiscal Administration

If to Vendor:

[Vendor Name] [Address] [City, State, Zip Code] Attn: [Title or Department]

With a copy to:

Roswell Park Cancer Institute Corporation Elm and Carlton Streets Buffalo, New York 14263 Attn: General Counsel

23. NEW YORK STATE REQUIRED CLAUSES. Vendor shall comply with the New York State required clauses set forth in Appendix A (New York State Required Clauses) to this Agreement.

24. MISCELLANEOUS.

24.1 Entire Agreement. This Agreement, including, for avoidance of doubt, all Appendices and Schedules, together with each SOW, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and each SOW, superseding all prior communications, discussions, understandings, proposals, and agreements between the Parties with respect to such subject matter, whether oral or written.

24.2 Amendment. This Agreement and each SOW may only be modified by a written amendment duly executed by both Parties.

24.3 Waiver. The failure of a Party to enforce any of the provisions of this Agreement or any SOW shall not be construed to be a waiver of the right of such Party thereafter to enforce such provisions. Failure to demand strict performance shall not be construed as a waiver of rights.

24.4 Severability. If, for any reason, a court of competent jurisdiction finds any portion of this Agreement or any SOW to be unenforceable, then such portion shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the applicable document shall continue in full force and effect.

24.5 Construction. Terms defined in the singular shall have the same meaning when used in the plural, and terms defined in the plural shall have the same meaning when used in the singular. Headings in this Agreement and each SOW are for convenience only and shall not affect the construction or interpretation hereof or thereof. Capitalized terms used but not defined in an Appendix or Schedule shall have the meaning assigned to them in this Agreement.

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

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

ROSWELL PARK CANCER INSTITUTE CORPORATION d/b/a ROSWELL PARK COMPREHENSIVE CANCER CENTER

[VENDOR’S LEGAL NAME]

Signature

Signature

Printed Name

Printed Name

Title

Title

INDEX OF ATTACHMENTS

APPENDIX A

NEW YORK STATE REQUIRED CLAUSES

1. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 2878 of the Public Authorities Law, if the Agreement was awarded based upon a competitive process involving the submission of bids or proposals, Vendor warrants, under penalty of perjury, that its bid or proposal was arrived at independently and without collusion aimed at restricting competition. Vendor further warrants that, at the time Vendor submitted its bid or proposal, an authorized and responsible person executed and delivered to Roswell Park a non-collusive bidding certification on Vendor’s behalf.

2. COMPTROLLER APPROVAL. In accordance with Section 2879-a of the Public Authorities Law, if the Agreement exceeds $1,000,000 and is not otherwise exempt pursuant to Section 2879-a(3) of the Public Authorities Law, the Agreement shall not be valid, effective, or binding upon Roswell Park until it has been approved by the New York State Comptroller.

3. PROCUREMENT LOBBYING. To the extent the Agreement is a “procurement contract” as defined by Section 139-j and Section 139-k of the State Finance Law, by signing the Agreement and each SOW, Vendor certifies and affirms that all disclosures made in accordance with Section 139-j and Section 139-k of the State Finance Law, if applicable, are complete, true, and accurate. In the event that any such disclosure is found to be intentionally false or intentionally incomplete, Roswell Park may terminate the Agreement or any SOW upon written notice to Vendor.

4. CERTIFICATION OF REGISTRATION TO COLLECT SALES TAX. To the extent the Agreement is a “contract” as defined by Section 5-a of the Tax Law, if Vendor fails to make the certification required therein, or if during the Term, the Department of Taxation and Finance or Roswell Park discovers that the certification, made under penalty of perjury, is false, then such failure to file or false certification shall be a material breach of the Agreement and the Agreement or any SOW may be terminated by providing written notification to Vendor in accordance with the terms of the Agreement, if Roswell Park determines that termination is in the best interest of the state of New York.

5. NEW YORK STATE RECORD REQUIREMENTS. Vendor shall establish and maintain complete and accurate books, records, documents, accounts, and other evidence directly pertinent to Vendor’s performance under the Agreement and each SOW (collectively “Records”). The Records must be kept for the balance of the calendar year in which they were made, and for six (6) additional years thereafter. In the event of an audit of Roswell Park that involves the Agreement or any SOW and/or Roswell Park’s expenditures thereunder, Vendor shall make Records available to Roswell Park and/or the government agency conducting such audit of Roswell Park, as may be requested. Roswell Park shall take reasonable steps to protect from public disclosure any of the Records that are exempt from disclosure under Section 87 of the Public Officers Law, provided that: (i) Vendor shall timely inform an appropriate Roswell Park official, in writing, that said Records should not be disclosed; (ii) said Records shall be sufficiently identified for non-disclosure by Vendor; and (iii) designation of said Records as exempt under Section 87 of the Public Officers Law is reasonable.

6. CORPORATE COMPLIANCE. In accordance with the Deficit Reduction Act of 2005, Roswell Park has established a program and written policies for purposes of informing and educating employees, agents, contractors, vendors, and suppliers of federal laws that serve to prevent and detect fraud and abuse in federal healthcare programs. Roswell Park’s Corporate Compliance Program is described at https://www.roswellpark.org/about-us/board-directors/corporate-compliance and https://www.roswellpark.org/sites/default/files/2023-05/126.1-roswell-park-comprehensive-cancer-center-corporate-compliance-summary-policy-2023-05-19-02-03.pdf, as may be updated from time-to-time (the “Compliance Program”). In accordance with 18 NYCRR Section 521-1.3, if Vendor will act as a contractor having authority within a required provider risk area (e.g., physician services, nursing services, billing or coding services), Vendor shall comply with the Compliance Program, and Roswell Park may terminate the Agreement or any SOW in the event of Vendor’s non-compliance.

7. ETHICS COMPLIANCE. By signing the Agreement and each SOW, Vendor certifies that Vendor has complied with, and shall continue to comply with, Sections 73 and 74 of the Public Officers Law and other Applicable Law establishing ethical standards for the conduct of business with New York State agencies. Vendor represents and warrants that, to the best of Vendor’s knowledge after reasonable inquiry, Vendor’s entering into the Agreement and each SOW and performance thereunder does not, and will not, create any actual or potential conflict of interest. Vendor will promptly notify Roswell Park in writing of any change that may give rise to a potential conflict of interest.

8. ANTI-KICKBACK STATUTE. It is the intent of Roswell Park and Vendor to comply with the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)) and the discount safe harbor and warranties safe harbor regulations set forth in 42 C.F.R. Sections 1001.952(h) and (g), respectively. To the extent that the pricing offered under the Agreement or any SOW constitutes a discount or other reduction in price under the Anti-Kickback Statute, Vendor will provide Roswell Park with invoices that fully and accurately disclose the discounted price of all items purchased under the Agreement and each SOW to allow Roswell Park to comply with the discount safe harbor regulations, including sufficient information to enable Roswell Park to accurately report its actual cost for such purchases.

9. PROMOTION OF NEW YORK BUSINESS ENTERPRISES.

9.1 Policy Statement. It is the policy of New York State to encourage the use of New York State subcontractors and suppliers, and to promote the participation of certified New York State minority-owned business enterprises (“MBEs”) and certified New York State women-owned business enterprises (“WBEs”) (MBEs and WBEs are collectively referred to as “MWBEs”) where possible, in the procurement of goods and services.

9.2 New York State Subcontractors and Suppliers. Information on the availability of New York State subcontractors and suppliers is available from: New York State Department of Economic Development, Division for Small Business, Albany, New York 12245 (Telephone: (518) 292-5100; Fax: (518) 292-5884; Email: opa@esd.ny.gov).

9.3 New York State Certified MWBEs. A directory of MWBEs is available from: New York State Department of Economic Development, Division of Minority and Women's Business Development, 633 Third Avenue, New York, New York 10017 (Telephone: (212) 803-2414; Email: mwbecertification@esd.ny.gov; Website: https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp).

9.4 Reasonable Efforts. The Omnibus Procurement Act of 1992 (Chapter 844 of the Laws of 1992, codified in Section 139-i of the State Finance Law and Section 2879(3)(n)–(p) of the Public Authorities Law), requires that if the total amount of the Agreement is greater than $1,000,000, by signing the Agreement and each SOW, Vendor certifies that Vendor: (i) has made reasonable efforts to encourage the participation of New York State business enterprises as suppliers and subcontractors, including MWBEs, under the Agreement and each SOW; (ii) has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-261); and (iii) agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities under the Agreement and each SOW, listing any such positions with the Job Service Division of the DOL, or providing such notification in such manner as is consistent with existing collective bargaining agreements. Vendor agrees to document the foregoing efforts and to provide said documentation to New York State upon request. Vendor acknowledges notice that New York State may seek to obtain offset credits from foreign countries as a result of the Agreement or any SOW and agrees to cooperate with New York State in these efforts.

10. EEO REQUIREMENTS. To the extent that the Agreement is a “state contract” as defined under Article 15-A of the Executive Law, and is not otherwise exempt or excluded from Roswell Park’s Master Goal Plan, Vendor shall comply with applicable provisions of Article 15-A and 5 NYCRR Parts 140-147 as summarized in Appendix A-1 (EEO Requirements) to the Agreement. Notwithstanding the foregoing, to the extent that any such provision is duplicative of or in conflict with federal law, Roswell Park shall waive the applicability of such provision to the extent of such duplication or conflict.

11. RECIPROCITY AND SANCTIONS PROVISIONS. Vendor is hereby notified that if its principal place of business is located in a country, nation, province, state, or political subdivision that penalizes New York State vendors, and if the goods or services it offers will be substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively, codified in Section 165(6) of the State Finance Law and Section 2879(5) of the Public Authorities Law), require that Vendor be denied contracts which they would otherwise obtain. As of October 2019, the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina, Alaska, West Virginia, Wyoming, Louisiana, and Hawaii.

12. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law, if the Agreement exceeds $5,000, Vendor agrees, as a material condition of the Agreement, that neither Vendor nor any substantially owned or affiliated person, firm, partnership, or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC app. Sections 2401 et seq.) or regulations thereunder.

13. PROHIBITION ON RUSSIAN BUSINESS OPERATIONS. Pursuant to Executive Order No. 16, Roswell Park is prohibited from entering into or renewing a contract with an entity conducting business operations in Russia in violation of Executive Order No. 16. Vendor acknowledges that Vendor has submitted a written certification to Roswell Park certifying Vendor’s compliance with Executive Order No. 16. Vendor shall notify Roswell Park promptly in the event such certification is no longer accurate. In the event that any such certification is found to be false, incomplete, or no longer accurate, Roswell Park may terminate the Agreement or any SOW upon written notice to Vendor.

14. CONFLICTING TERMS. In the event of a conflict between the terms of this Appendix A and any other provision of the Agreement or any SOW (including all attachments thereto and amendments thereof), the terms of this Appendix A shall control.

15.

APPENDIX A-1

EEO REQUIREMENTS

1. GENERAL PROVISIONS.

1.1 Application to State Contracts. Roswell Park is required to implement the provisions of Article 15-A of the Executive Law and 5 NYCRR Parts 140-147 for all “state contracts”, as defined therein, with a value: (i) in excess of $25,000 for labor, services, equipment, materials; or (ii) in excess of $100,000 for real property construction and renovation.

1.2 Scope of Application. This Appendix A-1 shall apply solely with respect to Vendor’s performance of the Agreement and SOWs, and solely with respect to employment by Vendor within the state of New York.

1.3 Failure to Comply. Vendor’s failure to comply with this Appendix A-1 may result in a finding of non-responsiveness, non-responsibility and/or breach of contract, subjecting Vendor to any remedies that may be available to Roswell Park pursuant to the Agreement, each SOW, and Applicable Law.

1.4 Supplementary Requirements. The requirements of this Appendix A-1 shall be deemed supplementary to, and not in lieu of, the non-discrimination provisions required by Article 15 of the Executive Law (also known as the Human Rights Law) or any other Applicable Law.

2. EQUAL EMPLOYMENT OPPORTUNITIES. As to the performance of the Agreement and SOWs, Vendor shall ensure equal employment opportunities are afforded without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. For these purposes, equal opportunity shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation.

3. EEO POLICY REQUIREMENTS. In accordance with Section 312 of the Executive Law and 5 NYCRR Part 143, Vendor affirms that its equal employment opportunity (“EEO”) policy includes the following requirements:

(i) Vendor will not discriminate against any employee or applicant for employment and will ensure that employment opportunities are afforded without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

(ii) At the request of Roswell Park, Vendor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding to furnish a written statement that such employment agency, labor union, or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability, or marital status and that such union or representative will affirmatively cooperate in the implementation of Vendor’s obligations under this Section 3.

(iii) Vendor shall state, in all solicitations or advertisements for employees, that, in the performance of the Agreement…