HomeMy WebLinkAboutR2023-240 2023-10-09DocuSign Envelope ID: 8C3F1 B40-79F0-4FFF-B918-2DC67EA8ECD2
RESOLUTION NO. R2023-240
A Resolution of the City Council of the City of Pearland, Texas, renewing a
supply contract through an interlocal agreement with National IPA — OMNIA
Partners for the purchase of chemical reagent, instrumentation and
operational parts/supplies from Fisher Scientific, in the estimated amount of
$415,150.00, for the period of September 22, 2023 through September 21, 2024.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the purchase of chemical reagent, instrumentation and operational
parts/supplies from Fisher Scientific, in the estimated amount of $415,150.00, is hereby approved.
Section 2. That the City Manager or his designee is hereby authorized to execute an
agreement for the purchase of chemical reagent, instrumentation and operational parts/supplies.
PASSED, APPROVED and ADOPTED this the 9th day of October, A.D., 2023.
c—DocuSigned by:
yze_.
'B4881A01593F4F2 _
J. KEVINJCOLE
MAYOR
ATTEST:
,-DocuSigned by:
Frou lA,s aot
-9QEC22531FFF415
FRANCES AGUILAR, TRMC, MMC
CITY SECRETARY
APPROVED AS TO FORM:
,-DocuSigned by:
E13CA000BB4F4B6...
DARRIN M. COKER
CITY ATTORNEY
2„-/,
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fisher
SCIENTIFIC
The world leader in serving science
Thermo Fisher Scientific
Fisher Scientific Company LLC
300 industry Drive
Pittsburgh, PA 15275
800-766.7000
www. rishersc i. com
fisherscientific
OFFICIAL LETTER OF INTENT
1. Participating Public Agency Designation:
By executing this Letter of intent, the Participating Public Agency or Affiliate (hereinafter
"Participating Public Agency") listed below hereby agrees to abide by all of the requirements, duties and
obligations set forth in the Agreement between Fisher Scientific Company L.L.C_ ("Fisher Scientific') and
the University of California, Strategic Sourcing Agreement #2021002889, effective as of 9/22/2023(the
'Agreement"). Fisher Scientific and the Participating Public Agency agree that all transactions conducted
between the parties will be pursuant to the terms of the Agreement, except as modified herein.
The Purpose of this Letter of Intent is to identify the applicability of the Agreement, and to further define
any unique logistical arrangements, or additional terms and conditions agreed upon by both parties.
2 Participating Public Agencies may participate in the Agreement so long as they do not have any
existing agreements currently in place with Fisher Scientific (including alternative state and local
purchasing agreements). If there is an existing agreement in place with Fisher Scientific, by
entering into this Letter of intent, the Participating Public Agency agrees that unless specifically
accepted herein, the existing agreement is terminated with respect to the Participating Public
Agency and the Participating Public Agency agrees to cease purchasing under the existing
agreement as a condition to this Agreement.
3. Participating Public Agency and Fisher Scientific may enter into agreements outside of the scope of
the Agreement; provided however, such agreements will be in writing, and the terms and conditions
of such agreements will standalone and be deemed not applicable to this Agreement.
4. By signing below, Participating Public Agency agrees that in issuing purchase orders under the
Agreement, all transactions under the Agreement will be governed by the terms of the Agreement
and not by any terms of any purchase order or invoice between Participating Public Agency and
Fisher Scientific.
Participating Public Agency's primary contact will be as follows:
a. Name: City of Pearland
b. Title-
c. Address: 3519 Liberty Drive, Pearland TX 77581
d. Telephone: 281.652.1600
e. Email:
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fisher
SCIENTIFIC
Please select participating agency segment: Government
Please select expected annual sales volume through this agreement: $500k-$1 M : Tier 2
(not applicable to K-12 and Community Colleges)
Please select agreement designation: Preferred
Note: Additional pricing and benefits may be available for Prime members (reference Section 4 for
eligibility requirements).
5. Preferred and Prime Designation Requirements:
Eligibility and Requirements
Preferred
Pfte
Registered OMNIA Partners Participating Public Agency
Registered OMNIA Partners Participating Agency
Signed Letter of Intent by Participating Public Agency
(Fisher Scientific and Agency)
Signed Letter of Intent by Participating Public Agency
(Fisher Scientific and Agency)
Signed Non -disclosure Agreement for Contract Terms,
Conditions and Pricing (If Applicable)
Signed Non -disclosure Agreement for Contract Terms,
Conditions and Pricing
Communication and designation of Preferred Agreement
award to user community and manufacturer community.
Promotion of benefits of this Agreement to end users and
procurement teams along with reasonable support to
monitor implementation and compliance
Unless mutually agreed upon, Participating Public Agency
will refrain from issuing an RFP for all or part of its
laboratory product supply business during the term unless
Fisher Scientific materially fails to meet its obligations under
this Agreement
Fisher Scientific designated as Preferred Fisher Scientific
on eCommerce platforms. Full breadth of Fisher Scientific's
catalog made available for ordering and enabled on
Preferred Public Agency's eCommerce platform, less items
regulated by state or local laws. Fisher Scientific channel,
where enabled, shall remain open in eCommerce
environment.
Communication and designation of Prime Agreement award
to user community and manufacturer community.
Promotion of benefits of this Agreement to end users and
procurement teams along with reasonable support to
monitor implementation and compliance
Unless mutually agreed upon, Participating Public Agency
department will refrain from issuing an RFP for all or part of
its laboratory product supply business during the term
unless Fisher Scientific materially fails to meet its
obligations under this Agreement
Fisher Scientific designated as Primary Fisher Scientific on
eCommerce platforms. Full breadth of Fisher Scientific's
catalog made available for ordering and enabled on
customers eCommerce platform, less items regulated by
state or local laws. Fisher Scientific, where enabled, shall
remain open in eCommerce environment.
Fisher Scientific will be designated as a distributor/Fisher
Scientific for all manufacturer supported pricing programs.
Fisher Scientific will be exclusive distributor / Fisher
Scientific for all manufacturer -supported pricing programs.
Full on -campus access to Fisher Scientific
Full on -campus access to Fisher Scientific; Limited access
to competitors
2
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fi-
S C I E N T I F I C
Eligibility and Requirements
Preferred
Prime
Participating Public Agency and Fisher Scientific shall
regularly review aggregate laboratory supply product spend
with a goal of identifying opportunities for competitive spend
conversion to Fisher Scientific.
Participating Public Agency participation in semi-annual
business reviews with Fisher Scientific in support of
enhanced Fisher Scientific management efforts and Fisher
Scientific's designation as primary Fisher Scientific. These
discussions will include the sharing and review of
competitive data, including, but not limited to, promotional
activity, ecommerce content (hosted and punch -out) and
spend data Participating Public Agency shall cooperate to
implement plans to convert spend with alternative channels
to Fisher Scientific.
Projected volume where Fisher Scientific represents 80% of
available spend (market share reports to be shared with
Fisher Scientific quarterly)
Competitors are to only have hosted catalogs on
purchasing platform listing exclusives and their corporate
brands only. No Level II punchout. Blocking to be
completed within 90 days of mutually executed agreement.
Participating Public Agency will use its best efforts in
conducting joint marketing campaigns to highlight Fisher
Scientific's position as prime lab Fisher Scientific, including
(without limitation), the procurement or purchasing internal
website.
Manufacturers available through Fisher Scientific will not
have duplicate presences on eComrnerce platforms
Ensure weighting of attributes supporting Fisher Scientific
as priority Fisher Scientific
Storeroom or on -site consignment programs wilt be offered
/ supported by Fisher Scientific services and / or products.
6. Participating Public Agency and Fisher Scientific agree to the following terms and conditions that
are additionally required by law for Participating Public Agency to legally contract for the goods and
services provided in the Agreement:
List any state or agency required compliance language (e.g. choice of law):
I. Standard Contract Provisions
WHEREAS. Contractor has bid to provide supplies ("Supplies") in response to Request for
Bid/Proposal or Quote No. AMNIA Partners contract #2021002889 ("Solicitation"), which
Solicitation includes the required scope of work and all specifications and which Solicitation
and the Contractor's bid or proposal response, as applicable, are incorporated by reference
in this Contract as Exhibits 1 and 2, respectively, as if each were fully set out here in its
entirety.
NOW, THEREFORE, City and Contractor agree as follows
1. Scope. Contractor will provide Supplies in accordance with the attached Scope of
Work, as detailed in Attachment A, the content of which is incorporated by reference
into this Contract as if fully set out here in its entirety. and in accordance with Exhibit
2
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fishtw
S C I E N ₹ I F71errm. This Contract is for one year, with performance commencing upon the
effective date or the date of issuance of the notice to proceed issued by the Contract
Administrator or the Purchasing Division, or upon the performance date listed in the
notice to proceed, whichever is later. The parties may mutually extend the Term of
this Contract for up to one additional one-year period ("Option Periods}"), provided,
the parties do so by written amendment prior to the expiration of the original term or
the then -current Option Period. The City's extension authorization must be executed
by the City Manager or designee.
3. Compensation and Payment. This Contract is for an amount not to exceed
$415,150.00, subject to approved extensions and changes. Payment will be made
for Supplies completed and accepted by the City within thirty (30) days of acceptance,
subject to receipt of an acceptable invoice. Contractor shall invoice no more
frequently than once per month. All pricing must be in accordance with the attached
Bid/Pricing Schedule, as shown in Attachment B, the content of which is
incorporated, in its entirety, by reference into this Contract. Any amount not expended
during the initial term or any option period may, at the City's discretion, be allocated
for use in the next option period.
Invoices wilt be emailed to the following email address with a copy provided to the
Contract Administrator:
City of Pearland
Attn: Accounts Payable
Email: accountspa','able(pearlandtx.gov
4. Contract Administrator. The Contract Administrator designated by the City is
responsible for approval of all phases of performance and operations under this
Contract, including deductions for non-performance and authorizations for payment.
The City's Contract Administrator for this Contract is as follows:
Name: Tammy Sue Akif
Department. Utilities
Phone: 281 652.1826
Email: takif@pearlandtx.gov
5. Insurance; Bonds.
(A) Before performance can begin under this Contract, the Contractor must deliver
a Certificate of Insurance (`COI"), as proof of the required insurance
coverages, to the Contract Administrator. Additionally, the COI must state that
the City shall be provided no less than thirty (30) days' advance written notice
of cancellation, material change in coverage, or intent not to renew any of the
policies. The City must be named as an additional insured. The City Attorney
must be given copies of all insurance policies within ten (10) days of the City
Manager or his designee's written request. Insurance requirements are as
stated in Attachment C, the entirety of which is incorporated by reference into
this Contract.
(B) I Contractor shall provide any required payment bond, performance bond, or
4
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fish e
SCIENTIFIC
both, prior to commencement of performance under this Agreement. The
terms, conditions, and amounts of the bonds and appropriate surety
information shall be included in the RFB/RFP or as may be added to
Attachment C, and such content; the entirety of which, shall be incorporated
into this Contract y.
6. Purchase Release Order. For multiple -release purchases of Supplies to be provided
by the Contractor over a period of time, the City will exercise its right to specify time,
place and quantity of Supplies to be delivered in the following manner the authorized
City department or division shall send to Contractor a purchase release order signed
by an authorized agent of the department or division. The purchase release order
shall refer to this Contract, and Supplies shall not be rendered until the Contractor
receives the signed purchase release order.
7. Inspection and Acceptance. City may inspect all Supplies before acceptance. Any
Supplies or products that are provided but not accepted by the City must be corrected
or re -worked immediately at no charge to the City. If immediate correction or re-
working at no charge cannot be made by the Contractor, replacement Supplies may
be procured by the City on the open market and any costs incurred, including
additional costs over the item's bid/proposal price, shall be paid by the Contractor
within thirty (30) days of receipt of City's invoice.
8. Warranty.
(A) The Contractor warrants that all products supplied under this Contract are new,
quality items that are free from defects, fit for their intended purpose, and of
good material and workmanship. The Contractor warrants that it has clear title
to the products and that the products are free of liens or encumbrances.
(B) In addition, the products purchased under this Contract shall be warranted by
the Contractor or, if indicated in Attachment D by the manufacturer, for the
period stated therein. Attachment D, the entirety of which, is incorporated into
this Contract.
9. Qua litylQuantity Adjustments. Any quantities indicated on the Bid/Pricing Schedule
are estimates only and do not obligate the City to order or accept more than the City's
actual requirements nor do the estimates restrict the City from ordering less than its
actual needs during the term of the Contract including any Option Period.
Substitutions and deviations from the City's product requirements or specifications
are prohibited without the prior written approval of the Contract Administrator
10. Non -Appropriation. The continuation of this Contract after the close of any fiscal
year of the City; which fiscal year ends on September 30th annually, is subject to
appropriations and budget approval specifically covering this Contract as an
expenditure in said budget, and it is within the sole discretion of the City's City Council
to determine whether or not to fund this Contract. The City does not represent that
this budget item will be adopted, as said determination is within the City Council's
sole discretion when adopting each budget.
11. Independent Contractor. Contractor shall perform all work required by this Contract
as an independent contractor and will furnish such Supplies in its own manner and
method, and under no circumstances or conditions will any agent, servant or
5
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fishmployee of the Contractor be considered an employee of the City.
SCIENTIFIC
12. Amendments. This Contract may be amended or modified only in writing and
executed by authorized representatives of both parties.
13. Waiver. No waiver by either party of any breach of any term or condition of this
Contract waives any subsequent breach of the same.
14. Taxes. The Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes,
unemployment taxes and all other applicable taxes. Upon request, the City Manager
shall be provided proof of payment of these taxes within 15 days of such request.
15. Notice. Any notice required under this Contract must be given by hand delivery, or
certified mail, postage prepaid, and is deemed received on the day hand -delivered or
on the third day after postmark if sent by certified mail. Notice must be sent as follows:
IF TO CITY:
City of Peariand
Attn: Julian Kelly
Title: Water Production Superintendent
Address: 2016 Old Alvin Rd., Peariand, TX 77581
Phone: 281 652.1934
IF TO CONTRACTOR:
Fisher Scientific
Attn: Rodger Virden
Title: Senior Sales Representatives
Address 300 Industry Drive Pittsburgh, PA
15275
Phone: 412.334.5461
16. Liability and Indemnity. ANY PROVISION OF ANY ATTACHED CONTRACT
DOCUMENT THAT LIMITS THE CONTRACTOR'S LIABILITY TO THE CITY
OR RELEASES THE CONTRACTOR FROM LIABILITY TO THE CITY FOR
ACTUAL OF? COMPENSATORY DAMAGES, LOSS, OR COSTS ARISING
FROM THE PERFORMANCE OF THIS CONTRACT OR THAT PROVIDES
FOR CONTRACTUAL INDEMNITY BY ONE PARTY TO THE OTHER PARTY
TO THIS CONTRACT IS NOT APPLICABLE OR EFFECTIVE UNDER THIS
CONTRACT. EXCEPT WHERE AN ADDITIONAL CONTRACT DOCUMENT
PROVIDED BY THE CITY PROVIDES OTHERWISE, EACH PARTY TO THIS
CONTRACT IS RESPONSIBLE FOR DEFENDING AGAINST AND LIABLE
FOR PAYING ANY CLAIM, SUIT, OR JUDGMENT FOR DAMAGES, LOSS,
OR COSTS ARISING FROM THAT PARTY'S NEGLIGENT ACTS OR
OMISSIONS IN THE PERFORMANCE OF THIS CONTRACT IN
ACCORDANCE WITH APPLICABLE LAW. THIS PROVISION DOES NOT
AFFECT THE RIGHT OF EITHER PARTY TO THIS CONTRACT WHO IS
SUED BY A THIRD PARTY FOR ACTS OR OMISSIONS ARISING FROM
THIS CONTRACT TO BRING IN THE OTHER PARTY TO THIS CONTRACT
AS A THIRD -PARTY DEFENDANT AS ALLOWED BY LAW.
6
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
TierriiL,
S C I E N1T71
Fjjiaute Resolution Procedures. The Contractor and City desire an expeditious
means to resolve any disputes that may arise between them regarding this Contract.
if either party disputes any matter relating to this Contract, the parties agree to try in
good faith, before bringing any legal action, to settle the dispute by submitting the
matter to mediation before a third party who will be selected by agreement of the
parties. The parties will each pay one-half of the mediator's fees.
18. Attorney's Fees. Should either party to this Contract bring suit against the other party
for breach of contract or for any other cause relating to this Contract, neither party will
seek or be entitled to an award of attorney's fees or other costs relating to the suit.
19. Termination.
(A) City Termination for Convenience. Under this paragraph, the City may
terminate this Contract during its term at any time for the City's own
convenience where the Contractor is not in default by giving written notice to
Contractor. If the City terminates this Contract under this paragraph, the City
will pay the Contractor for all Supplies provided in accordance with this
Contract to the date of termination.
(B)
Termination for Default. Either party to this Contract may terminate this
Contract as provided in this paragraph if the other party fails to comply with its
terms The party alleging the default shall provide the other party notice of the
default in writing citing the terms of the Contract that have been breached and
what action the defaulting party must take to cure the default. If the party in
default fails to cure the default as specified in the notice, the party giving the
notice of default may terminate this Contract by written notice to the other
party, specifying the date of termination. Termination of this Contract pursuant
to this paragraph does not affect the right of either party to seek remedies for
breach of the Contract as allowed by law, including any damages or costs
suffered by either party.
20. Owner's Manual and Preventative Maintenance. Contractor agrees to provide a
copy of the owner's manual and/or preventative maintenance guidelines or
instructions if available for any equipment purchased by the City pursuant to this
Contract. Contractor must provide such documentation upon delivery of such
equipment and prior to receipt of the final payment by the City.
21. Limitation of Liability. The City's maximum liability under this Contract is limited to
the total amount of compensation listed in this Contract. In no event shall the City be
liable for incidental, consequential or special damages.
22. Assignment. No assignment of this Contract by the Contractor, or of any right or
interest contained herein, is effective unless the City Manager first gives written
consent to such assignment. The performance of this Contract by the Contractor is
of the essence of this Contract, and the City Manager's right to withhold consent to
such assignment is within the sole discretion of the City Manager on any ground
whatsoever.
23. Severability. Each provision of this Contract is considered to be severable and, if, for
any reason, any provision or part of this Contract is determined to be invalid and
7
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
Thermo Fishotrary to applicable law, such invalidity shall not impair the operation of nor affect
SCI ENTI Ftlide portions of this Contract that are valid, but this Contract shall be construed and
enforced in all respects as if the invalid or unenforceable provision or part had been
omitted.
24. Order of Precedence. In the event of any conflicts or inconsistencies between this
Contract, its attachments, and exhibits, such conflicts and inconsistencies will be
resolved by reference to the documents in the following order of priority:
A. this Contract (excluding attachments and exhibits);
B. its attachments;
C. the bid solicitation document including any addenda (Exhibit 1); then,
D. the Contractor's bid response (Exhibit 2).
25. Certificate of Interested Parties. Contractor agrees to comply with Texas
Government Code Section 2252.908, as it may be amended, and to complete Form
1295 "Certificate of Interested Parties" as part of this Contract if required by said
statute for items approved by City Council.
26. Governing Law. Contractor agrees to comply with ail federal, Texas, and City laws
in the performance of this Contract. The applicable law for any legal disputes arising
out of this Contract is the law of the State of Texas, and such form and venue for such
disputes is the appropriate district, county, or justice court in and for Brazoria County,
Texas.
27. H.B. 89. In accordance with Chapter 2270 of the Texas Government Code, the
signatory executing this contract on behalf of company verifies that the company does
not boycott Israel and will not boycott Israel during the term of this contract. This
clause is subject to companies with ten or more full time employees and the contract
value is $100,000 or more that is to be paid wholly or partially with public funds of the
governmental entity.
28, Public Information Act Requirements. This paragraph applies only to agreements
that have a stated expenditure of at least $1,000,000 or that result in the expenditure
of at least $1,000,000 by the City_ The requirements of Subchapter J, Chapter 552,
Government Code, regarding certain entities requirement to provide contracting
information to governmental bodies in connection with a public information request,
may apply to this contract and the Contractor agrees that the contract can be
terminated if the Contractor knowingly or intentionally fails to comply with a
requirement of that subchapter.
29. Entire Contract. This Contract constitutes the entire agreement between the parties
concerning the subject matter of this Contract and supersedes all prior negotiations,
arrangements, agreements, and understandings, either oral or written, between the
parties.
II. Special Terms and Conditions. None
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
TharParti6Oting Public Agency and Fisher Scientific agree to the following requirements for
S C I E dtnhi dfirlgCelectronic commerce:
a. Participating Public Agency and Fisher Scientific agree to continue existing e -commerce
relationship.
b. Fisher Scientific agrees to help facilitate any required re-enablement protocols, business
process enhancements, CXML / XML connections, hosted or punchout catalogs, etc. to
support this effort.
c. Punchout and / or Hosted Coordination: The parties recognize the mutual interest and
benefits in effective electronic commerce, Both parties agree to continue using existing
protocols for electronically exchanging data associated with purchase, fulfillment, and
invoicing; to provide secure connections; and to cooperate in maintaining connections.
d. Notification of Upgrades to Fulfillment Systems: Fisher Scientific agrees to provide prompt
notification of any changes to the Fisher Scientific Fulfillment System that might impact
electronic commerce between the parties. Fisher Scientific agrees to maintain existing
connections to Fisher Scientific's Fulfillment System until such time as any changes required
to be made by the Participating Public Agency can be planned with Participating Public
Agency resources including staffing availability and ail new connections tested for accuracy.
& Participating Public Agency and Fisher Scientific agree to the following unique operating
arrangements necessary to service the Participating Public Agency account(s):
a. In addition to the pricing offered under the Master Agreement, Fisher Scientific is offering to
Participating Public Agency the custom pricing in Exhibit A,
9, Confidentiality
Participating Public Agency agrees that all information furnished to it, including but not limited to
any pricing and incentives, by Fisher Scientific and identified as being, or is reasonably
understood or expected to be, proprietary or confidential ("Confidential Information") is a valuable
asset of Fisher Scientific and shall be treated in a confidential manner and remain the sole and
exclusive property of Fisher Scientific, to the extent permissible by applicable taw. Participating
Public Agency shall keep in confidence and agrees all Confidential Information disclosed under
this Letter of Intent, or the Agreement is confidential information of Fisher Scientific. Participating
Public Agency shall not disclose, sell, use, or publish any Confidential Information to third parties
nor use such information or allow any individual or organization, including, without limitation, its
employees and independent contractors, to use such information in any manner, except for the
performance of its obligations under the Agreement, without the prior written approval of Fisher
Scientific. Any such Confidential Information, whether in a tangible or electronic format or
otherwise, shall be returned by the Participating Public Agency to Fisher Scientific upon the
earlier of the written request of Fisher Scientific or the termination or expiration of this Agreement.
In the event that Participating Public Agency is requested to disclose such Confidential Information
to any third party, Participating Public Agency shall provide Fisher Scientific immediate notice so
that Fisher Scientific may adequately defend its Confidential information from disclosure.
•19. This Letter of Intent and the Agreement sets forth the entire agreement between the parties
as to the subject matter set forth herein.
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
It7te d ng t4.Le-fegally bound, the parties have executed this Agreement to be effective as of the date
fbhNaf�a� I C
Fisher Scientific
Fisher Scientific Company L.L.C.
By: 71
(sig
Tinted Name: John M. Bailey
Title: Senior Sales Manager
"Participating Public Agency Name"-
City, efnearJaid
By: F030D12
(signature)
Printed Name: Trent Epperson
Title: Interim City Manager
10
Thermo Fisher
SCIENTIFIC
The world leader in serving science
Exhibit A
Custom Market Basket
Click or tap here to enter text
DocuSign Envelope ID: F290C1A5-C236-4677-ADCA-1BBF32264698
September 7, 2023
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Fisher Scientific Co. LLC
PO Box 404705
Atlanta, GA 30384
RE: Contract Renewal
City of Pearland Contract #00922-59
Dear
The above referenced Contract expires on September 21, 2023. Pursuant to the Contract, contract
renewals are at the sole option of the City. This letter is to inform you that the City is exercising its right
to rcnew the Contract for a one-year peri❑d, which will begin immediately upon the expiration of the
current term and will end on September 21, 2024 All other terms and conditions of the Contract will
remain unchanged. Please return this signed acknowledgement letter, along with a copy of your
current insurance certificate, and current W-9 form to the email address set forth below,
acknowledging receipt of the Notice of Contract Renewal_
If you have any questions concerning this Contract Renewal Notice, please contact me at the telephone
number listed below.
If you are interested in exercising this renewal option under the terms, conditions, and pricing, then
please sign on the foll❑wing page, and return to me via email to velam{pearlandtx.crov.
Should you have any questions, please contact me at (281)652-179p_
Sincerely,
Vanessa Earn
Contract Administrator
Page 1 of 2
Agreement to Renew Contract
RE: Contract Renewal
City of Pearland Contract #O0922 -b9
By executing this document, contractor verifies:
1) That it desires to exercise the renewal option under the same terms, conditions, and pricing,
beginning September 22, 2023, through September 21, 2024;
2) that it does not boycott Israel, and agrees that during the term of this Contract will not boycott
Israel as that term is defined in Texas Government Code Section 808.001, as amended;
that, pursuant to Texas Government Code, Chapter 2252, Section 2252.1 52 and Section
2252, 153, it does not appear on the Comptroller of the State of Texas listing of companies which
do business with Iran, Sudan or any Foreign Terrorist Organization, as identified under Section
806-051, Section 807.051 or Section 2253.253, listing of companies.
City of Pearland, Texas
/adiie (IA
Printed Name
- LicHAS Opp cEk
Title
Fisher Scientific Co. LLC
Contractor
LC}n is
Printed Name 7
,042a _ Pr
Title
Page 2 of
DocuSign Envelope ID: 8C2D5797-9C24-47B7-B78F-4B63EBFAEBAA
UNIVERSITY
OF
CALIFORNIA
Purchasing Agreement # 2021002889
As a result of Request for Proposal for General Lab Supplies, RFP# 2101 -July 2020, the Agreement to furnish certain goods
and services described herein and in the documents referenced herein ("Goods and/or Services") is made by and between The
Regents of the University of California, a California public cooperation ("UC") on behalf of the University of California and
the supplier named below ("Supplier"). This Agreement is binding only if it is negotiated and executed by an authorized
representative with the proper delegation of authority.
Fisher Scientific Company L.L.C.
300 Industry Drive
Pittsburgh PA 15275
(800) 556-2323
1. Statement of Work
Supplier agrees to perform the Services listed in the statement of work attached as Attachment A ("Statement of Work") and
any other documents referenced in the Incorporated Documents section herein, at the prices set forth in the Statement of Work
and any other documents referenced in the Incorporated Documents section herein. Unless otherwise provided in the
Agreement, UC will not be obligated to purchase a minimum amount of Goods and/or Services from Supplier.
2. Term of Agreement/Termination
a) Unless terminated per section 20, Termination of Agreement, this Agreement shall be effective for a period of
four (4) years, from June 15, 2021 ("Effective Date') through June 30, 2025. Thereafter, the parties may by
mutual agreement renew or extend the Agreement for additional two (2) -year periods, up to eight (8) years
maximum agreement duration, at the same terms and conditions upon mutual agreement of the parties.
b) Either party may terminate this Agreement for cause, at any time, upon sixty (60) days prior written notice of
termination and to the extent thereof without penalty. A party shall have sixty (60) days from the date it receives
notice in which to cure any material breach of the Agreement and termination shall be effective at the end of
such period only if a party fails to cure the breach.
c) If any termination of this Agreement takes place, Supplier shall extend to UC, upon UC's request, an additional
ninety (90) day period to properly implement a smooth transition. Fees for the services performed during the
additional ninety (90) days will be negotiated in good faith between UC and Seller.
3. Purchase Order; Advance Payments
Supplier may not begin providing Goods and/or Services until UC approved Purchase Order for the Goods and/or Services is
submitted to the Supplier.
4. Pricing, Invoicing Method, and Settlement Method and Terms
Refer to Statement of Work Section 5.d.
5. Notices
As provided in the UC Terms and Conditions of Purchase, notices may be given by email, which will be considered legal notice
only if such communications include the following text in the Subject field: FORMAL LEGAL NOTICE — [insert, as the case
may be, Supplier name or University of California]. If a physical format notice is required, it must be sent by overnight delivery
or by certified mail with return receipt requested, at the addresses specified below.
To UC, regarding contract issues not addressed above:
DocuSign Envelope ID: 8C2D5797-9C24-47B7-B78F-4B63EBFAEBAA
UNIVEKSI I Y
To Supplier:
OF
CALIFORNIA
Purchasing Agreement # 2021002889
Name
Valerie Vergara
Phone
510-987-0267
Email
Valerie VergaraAucop.edu
Address
1111 Franklin Avenue, Procurement Services
Oakland, CA 94607
Name
Eric Van Denburg
Phone
949-842-9685
Email
Eric.vandenburg@thermofisher.com
Address
300 Industry Drive, Pittsburgh, PA 15275
With a copy to VP and General Counsel, RSD at same address.
6. Intellectual Property, Copyright and Patents
The Goods and/or Services do not involve Work Made for Hire
7. Patient Protection and Affordable Care Act (PPACA)
Not Applicable
8. Prevailing Wages
Supplier is not required to pay prevailing wages when providing the Services.
9. Fair Wage/Fair Work
Not Applicable
10. Federally Funded Contracts, Grants, and Cooperative Agreements
Not Applicable
11. Restriction Relating to Consulting Services or Similar Contracts —
Follow-on Contracts
Please note a Supplier that is awarded a consulting services or similar contract cannot later submit a bid or be considered for
any work "required, suggested, or otherwise deemed appropriate" as the end product of the Services (see Public Contract Code
Section 10515).
12. Insurance
Deliver the PDF version of the Certificate of Insurance to UC's Buyer, by email with the following text in the Subject field:
CERTIFICATE OF INSURANCE -
DocuSign Envelope ID: 8C2D5797-9C24-47B7-878F-4B63EBFAEBAA
m�. UNII/tKbl I Y
OF
CALIFORNIA
Purchasing Agreement # 2021002889
13. Service -Specific and/or Goods -Specific Provisions
Not Applicable
14. Records about Individuals
Records created pursuant to the Agreement that contain personal information about individuals (including statements made by
or about individuals) may become subject to the California Information Practices Act of 1977, which includes a right of access
by the subject individual. While ownership of confidential or personal information about individuals is subject to negotiated
agreement between UC and Supplier, records will normally become UC's property, and subject to state law and UC policies
governing privacy and access to files. When collecting the information, Supplier must inform the individual that the record is
being made, and the purpose of the record. Use of recording devices in discussions with employees is permitted only as
specified in the Statement of Work.
15. Incorporated Documents and Order of Precedence
This Agreement and its Incorporated Documents contain the entire agreement between the Parties, in order of the below
precedent, concerning its subject matter and shall supersede all prior or other agreements, oral and written declarations of intent
and other legal arrangements (whether binding or non -binding) made by the Parties in respect thereof.
1. This Agreement #2021002889 — "University of California Strategic Sourcing Agreement"
2. Non -Disclosure Agreement for Participating Public Agencies
3. Letter of Intent for Participating Public Agencies
4. Fisher's response to RFP#2101-July2020
5. RFP#2101-July2020 General Lab Supplies and Distribution Services
16. Entire Agreement
The Agreement and its Incorporated Documents contain the entire Agreement between the parties and supersede all prior
written or oral agreements with respect to the subject matter herein.
This Agreement can only be signed by an authorized representative with the proper delegation of authority.
THE REGENTS OF THE
I NINNIKEy OF CALIFORNIA
.4,4_ A-
9 Qqy9254CF...
FISHER SCIENTIFIC COMPANY L.L.C.
a, V,Wi #e_
(Signature)
L sa.V. �1rk
(William Cooper, Vice President & CPO) (Lisa V. Witte, President, North America and Emerging Markets)
6/10/2021
Wednesday, June 9, 2021
(Date) (Date)
DocuSign Envelope ID: 8C2D5797-9C24-47 B7-B78F-4B63EBFAEBAA
UNIVERSITY OF CALIFORNIA STRATEGIC SOURCING AGREEMENT
AGREEMENT # 2021002889
Attaclunent A: Statement of Work
As a result of Request for Proposal # 002101-July2020 General Lab Supply &
Distribution Services, the Agreement to furnish certain goods and services described
herein and in the documents referenced herein ("Goods and/or Services") is made by
and between The Regents of the University of California, a California public cooperation
("UC"), on behalf of the University of California, and Fisher Scientific Company L.L.C.
("Supplier") with its principal place of business at:
Fisher Scientific Company L.L.C.
300 Industry Drive
Pittsburgh PA 15275
(800) 556-2323
The parties agree as follows:
1. DEFINITIONS
As used in this Agreement and its attachments and exhibits all of which are a part of the
Agreement, the following terms have the following meanings:
a. "Affiliates" means those institutions which UC has an affiliation with and
which participate in this Agreement (as further described in clause 2.a below).
b. "Market Basket" means those Products which were included within the scope
of UC's General Lab Supply RFP 2101 -July 2020, dated August 18th, 2020.
Items comprising the Market Basket may change as outlined in Attachment E.
c. "eCommerce" means the electronic procurement system currently utilized by
the UC locations or any electronic procurement system that UC may adopt in
the future.
d. "Business Day" means Monday through Friday, between 8:00 AM - 5:00 PM
Pacific Time, excluding UC and Seller observed holidays.
e. "Franchise Products" — Seller currently has three Product Types. Franchise
Products shall mean those products from suppliers with whom Seller has an
established and/or contractual distribution relationship. Franchise Products are
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currently designated within Seller's system as Product Type 03 or Product Type
04. Specific product type designations may be subject to change.
f. "Current Published List Price" - the Seller's list price for Franchise Products as
of the most recent January price book.
g. "Delivery" means delivery by Seller directly to the designated LTC delivery
points.
h. "Equipment" shall be defined as instrumentation or equipment sold to the
University.
"Equipment Maintenance Services" — shall mean those services offered by
Seller for the purposes of repair and maintenance of the Equipment, regardless
of OEM. This includes any associated service -level commitments implied or
expressed for the purposes of maintaining performance as set forth by the
Original Equipment Manufacturer (OEM) standard specifications.
J.
"Force Majeure" means fires; strikes; riots; pandemic or epidemic; embargoes;
explosions; earthquakes; floods; wars; acts of terrorism; the elements; labor
disputes; shortages of or inability to secure materials or transportation facilities;
regulatory acts of government; or other causes or events beyond a party's
control.
k. "Gross Minimum Margin" means the sales price required to retain a specified
selling margin based on Seller's product cost.
1. "Healthcare Professional" (or "HCP") is any person or entity (a) authorized or
licensed in the United States to provide health care services or items to patients
or (b) who is involved in the decision to purchase, prescribe, order, or
recommend a Medical Technology in the United States. This term includes
individual clinicians (for example, physicians, nurses, and pharmacists, among
others), provider entities (for example, hospitals and ambulatory surgical
centers), and administrative personnel at provider entities (for example,
hospital purchasing agents).
m. "Healthcare Practitioners" are Healthcare Professionals who prescribe
prescription drugs and are licensed to provide health care in the United States
(including partnerships or corporations comprised of such Healthcare
Practitioners or officers, employees, agents or contractors of such Healthcare
Practitioners acting in the course and scope of their employment, agency or
contract related to or in support of the provision of health care to individuals).
Healthcare Practitioners would include advanced practice nurses, certified
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nurse -midwives, nurse practitioners, psychiatric nurse mental health clinical
specialists, dentists, optometrists, physicians, physician assistants, and
podiatrists among other practitioners.
n. "Last Mile" means the delivery of the goods within the individual UC campus
locations from a central receiving and distribution location, at which time, UC
delivers the product to its final destination.
o. "National Program"- program as prescribed by OMNIA Partners to market the
UC- General Lab Supply contract within the US to public agencies nationally,
including state and local governmental entities, public and private primary,
secondary and higher education entities, non-profit entities, and agencies for the
public benefit ("Public Agencies")
p. "Outreach" means those Events and Activities that UC will actively support to
enable the Seller to promote its Products to researchers, faculty, and staff.
q. "OMNIA Partners"- UC's Lead Agency Marketing Partner, in partnership with
the UC and the awardee, will syndicate the contract to governmental and public
sector entities for adoption.
r. "Products" means all products sold by Seller, whether or not manufactured by
Seller or bearing a Seller trademark, including but not limited to Franchise
Products and Third Party Products.
s. "Seller" or "Fisher Scientific" shall mean the Research and Safety Market
Division of Fisher Scientific Company L.L.C..
t. "Stockroom Volume Discounts" shall mean Seller's bulk order volume
discounts for stockroom programs mutually agreed upon by Customer and
Seller.
u. "Third Party Products" means products that may be offered by Seller from
suppliers with whom Seller does not have a distribution agreement and/or
which are sourced as an accommodation to customer. Third Party Products are
listed as Product Type 07 in Seller's system.
v. "University and UC" are used interchangeably to mean each and all of the
Regents of the University of California, and all current and future UC campuses
and Affiliates (as further described in Section 2.a below).
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2. SCOPE AND DESCRIPTION OF PROGRAM
Purchase and Sale of Products. During the term of this Agreement, and any extension(s)
to such term, Seller shall sell to UC the Products subject to the terms and conditions set
forth in this Agreement.
a. UC Affiliates. The parties acknowledge that the benefits of this Agreement may
be extended to affiliates of UC who may be located outside of the UC system,
but who are conducting research activities directed and funded by UC, where
such parties shall be agreed on by Seller and subject to the terms and conditions
hereof.
b. California State University System and California Community College System
An Agreement of Understanding exists between The Regents of the University
of California, The Trustees of the California State University (CSU), and The
California Community Colleges Chancellor's Office establishing the California
Higher Education Consortium (CHEC). Through a collaborative relationship,
the Consortium seeks to combine procurement and contracting activities, plus
efforts to obtain best value goods and services while reducing total acquisition
costs.
c. All additional signees to the Agreement (e.g. the CCHEC, CSU, and similar
signees which are not part of the UC System) must be mutually agreed to by
Seller.
d. National Program Requirements. UC has partnered with OMNIA Partners to
make the Master Agreement available to other public agencies nationally,
including state and local governmental entities, public and private primary,
secondary and higher education entities, non-profit entities, and agencies for
the public benefit (Participating Public Agencies). Therefore, Supplier agrees
to extend Goods and/or Services Participating Public Agencies under the terms
of this agreement. Use of the Master Agreement by any Participating Public
Agency is preceded by their registration with OMNIA Partners, which is
identified as Participating Public Agency. The Participating Public Agency
may require further negotiations as per their local jurisdiction. In addition to
registration with OMNIA Partners, access to confidential sections of this
Agreement shall be predicated on the Participating Public Agency executing a
Non -Disclosure Agreement and Letter of Intent with Seller.
e. All contractual administration regarding this Agreement (e.g. terms and
conditions, extensions, renewals, etc.) shall remain the responsibility of the
University of California.
DocuSign Envelope ID: 8C2D5797-9C24-47 B7-B78F-4B63EBFAEBAA
f. Operational responsibilities, including but not limited to fiduciary
responsibility, payment, performance, liabilities, disputes or issues involving
individual CSU, Community College campuses, or any Participating Public
Agency shall be addressed, administered and resolved directly with the
individual entity. The University of California, the California State University,
the California Community Colleges, and any Participating Public Agency
brought forth through the Omnia Partner's membership, are separate and
distinct government entities. As such, each administrative unit, campus, or
public entity therein financially separate and shall be responsible for their
individual financial commitments.
g.
No fiduciary responsibility for performance liability, unless otherwise
expressed, exists between the University of California and the California State
University or between the University of California and the California
Community Colleges or between the UC and any other public entities. Each
location will be subject to Seller's standard credit checks and policies,
independent of the UC's fiduciary standing.
h. Each Participating Public Agency shall be assigned a tier based on their most
recent annual spend, in accordance with the below table:
Tiers
Academic
K-14
Government
Tier 1
>$60M
N/A
>$1M
Tier 2
$5M - $60M
N/A
$500k - $1M
Tier 3
$1M - $5M
N/A
<500k
Tier 4
<$1M
N/A
N/A
Pricing for each tier shall be as outlined in the below table:
Tiers
Academic
K-14
Government
Tier 1
Prime
Predefined RFP Market Basket
Tier 1 Category Discounts
K-14 sku market basket
K-14 custom skus
K-14 Category Discounts
(Applies to ALL K-14
Tiers)
Government Sku market basket
Government custom skus
Tier 1 Category Discounts
Preferred
N/A
Selected Sku market basket
Selected custom skus
Tier 1 Category Discounts
Tier 2
Prime
Select sku market basket
Select custom skus
Tier 2 Category Discounts
Select sku market basket
Select custom skus
Tier 2 Category Discounts
Preferred
Subset of Select sku market basket
Subset of Select custom skus
Tier 2 Category Discounts
Subset of Select sku market
basket
Subset of Select custom skus
Tier 2 Category Discounts
Tier 3/4
Prime
Limited sku market basket
Limited custom skus
Tier 3/4 Category Discounts
Limited sku market basket
Limited custom skus
Tier 3 Category Discounts
Preferred
Base Level sku market basket
Base Level custom skus
Tier 3/4 Category Discounts
Base Level sku market basket
Base Level custom skus
Tier 3 Category Discounts
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In the event that a Participating Public Agency becomes eligible for a change
in tier, the parties shall convene to notify such Participating Public Agency in
writing to modify any applicable contract documents to account for such
change.
3. E -COMMERCE SYSTEMS
E -Commerce Catalog. Subject to Attachment D of this Agreement, Seller's e -Commerce
catalogs shall contain items as agreed upon by the UC Contract Administrator and the
Seller.
a. UC campuses have enabled e -commerce as befits their situation and existing
financial infrastructure. The Parties must comply with the requirements in UC
Ecommerce-Appendix, Attachment D. Campus -specific requirements for
eCommerce programs shall be mutually reviewed between Seller and UC.
b. For Participating Public Agencies, e -commerce provisions shall be negotiated
directly and independently with such agency.
4. SUSTAINABILITY
Seller will create commodity -specific sustainability program to assist UC in furthering
its own Sustainability
a. Seller agrees that it shall collaborate and work in good faith with University in
furthering the University's sustainability goals including, without limitation,
identifying suitable opportunities for the reduction of carbon emissions and
waste relating to the supplies made under this Agreement.
b. UC expects Seller to begin the CSR Assessment with EcoVadis, within 180
days of Contract signing for purpose of establishing a baseline and/or creating
plan for targeted improvements (if below avg. score). UC shall use the
EcoVadis assessment as part of the Seller's evaluation and may be part of an
ongoing Sustainability Business Review. Up-to-date information regarding
the UC Sustainable Procurement Policy can be found on the link below.
https://www.ucop.edu/procurement-services/for-ucstaff/sustainable-
procurement/sustainable-procurement-policy-guidelines.
5. UC PROCURE -TO -PAY PROCESS (P2P) REQUIREMENTS
a. Ecommerce Procedures. UC orders placed with Seller shall be binding on Seller
upon receipt and acceptance of a purchase order. The Seller will honor all
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pricing as outlined in Attachments E and F. Any exceptions shall be managed
on an individual basis, should exceptions persist. UC and the Seller shall work
in good faith to resolve the exceptions. Where mutually agreed, Seller shall
accept preferred payment method as defined by each UC campus. Seller
cannot accept any form of purchase cards (P -Cards), credit or debit cards (
"Ghost Cards") and credit cards in the UC Campus ecommerce setting.
b. Non-Ecommerce Procedures. Orders under this Agreement may be submitted
from any of Customer's locations in North America by telephone, facsimile,
mail, or electronic means, including Seller's website. Customer may determine
the status of its orders by calling Seller's toll -free customer service number or
using Seller's website. Orders for Franchise Products may be cancelled by UC
up until the time of shipment to UC by Seller or by Seller's supplier.
Cancellation of orders for Third Party Products may require the consent of the
supplier, and Customer shall reimburse Seller for any cancellation charge
imposed by the Seller's supplier. Seller shall only accept purchase cards (P -
Cards), ghost cards, credit cards or similar payment methods at the point of
sale.
All purchases, through the eCommerce system or non-eCommerce system with
the Seller, are subject to the terms and conditions of the Order of Precedence as
outlined in this Agreement. For purchases where the terms may be different
than the agreed upon terms, the terms shall have no weight to the Terms and
Conditions set for in this agreement, unless agreed to by the parties in a separate
signed writing.
c. Order Packaging and Labeling. Seller will individually package and label every
UC order with the following information:
Purchase order number.
Product description, quantity and catalog number of the Product
ordered.
Other information, as may be reasonably requested by ordering UC
Department subject to Seller's consent (which shall not be unreasonably
be withheld).
Seller will attach a packing slip to the outside of the package that will
be easily inspected by UC.
d. Invoicing. The method for invoicing is through electronic format as defined per
each campus location. UC expects the Seller to be consistent in their
submission of invoices. All invoices must clearly indicate the following
information
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State and local sales taxes as separate line item
Purchase Order number
Description, quantity, catalog number
Price of every Product or service
e. Receiving Locations. Seller shall provide delivery to all of UC's current and
future authorized Designated Delivery points via a common carrier desktop
delivery model. Seller will continue to offer mutually beneficial transportation
and product delivery programs to the UC campuses, where such programs
currently exist between Seller and UC. The parties shall work together in good
faith to identify opportunities and mutually agree to off -setting costs.
f. Freight Terms. All Products (including Franchise Products and Third Party
Products) shall be delivered FOB (Freight on Board) Destination with standard
freight and handling charges absorbed by Seller. Rush delivery charges shall
apply as described in Clause 5.i. UC and Participating Public Agencies shall be
responsible for all white glove delivery costs. For UC, LSG Third Party freight
costs shall be as negotiated by UC and LSG and transacted through Seller. LSG
Third Party freight for UC shall not be absorbed by Seller. All Third Party
freight costs to be absorbed by Seller for Participating Public Agencies. Non -
Standard delivery costs for any items over $100,000 (i.e. any delivery costs
outside of carrier charges for transport) shall be borne by UC or Participating
Public Agency. Minimum order charges will not apply for any Products
provided where a supplier of any Third Party Product has a minimum order
charge that Seller is not reasonably able to negotiate away, then Seller shall
communicate this to UC prior to order placement for that Product.
g.
Standard Delivery Requirements. Seller shall endeavor to supply supplier -
stocked Products on a next Business Day basis in respect of (i) electronic orders
placed before 2pm PST, and (ii) telephone orders placed before 4pm PST.
Where delivery of any product requires a longer lead time for delivery or
applicable installation, Seller will quote the relevant lead time to UC at time of
order confirmation.
h. Last Mile Delivery. Where reasonable, Seller will deliver Products to a
centralized, campus -specified, receiving location where, subsequently, UC will
deliver Products to the end user. Products may be delivered individually or as
mixed pallet(s), as determined by each campus location. Regardless of delivery
to the centralized receiving location, each box within Seller's direct control
shall be labeled appropriately for delivery to end -customer (could be bulk -
volume -quantity or one-off purchase). Any new Last Mile Delivery Programs
must be by mutual agreement in writing of the parties.
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i. Rush Delivery Requirements. Seller agrees to use all commercially available
resources to deliver UC emergency orders, for Seller's standard offering, within
twenty-four (24) hours after receipt of order at no additional charge to UC other
than actual express shipping charges from carrier.
J.
Out -of -Stock Procedures. Seller will notify UC if any ordered item(s) are out
of stock. If UC approves, the out -of -stock item will be added to the backorder
file and will be delivered to UC when the item is in stock without a further order
being submitted. Seller will endeavor to hold pricing on backordered products
wherever possible. In the event of a manufacturer's price change during the
backorder period, Seller will provide written notice of such increase to UC.
Upon written notice, UC and Seller shall review products and establish
mutually agreed upon new pricing. UC shall be permitted to terminate a
backorder, without penalty, if such a price increase occurs.
k. Returns. Seller offers a thirty (30) -day "no hassles" return policy. UC may
return a Franchise Product within thirty (30) days of receipt by obtaining a
return goods authorization ("RGA") number from Seller and referencing the
RGA number on return shipping documents. Returns made without an RGA
number may be returned to the UC, freight collect. Returned 3rd -Party Products
are subject to reasonable restocking fees charged by the manufacturer. Seller's
return policy does not apply to (i) Products which have been discontinued,
(ii)Products which are personalized or customized, (iii) Products not purchased
from Seller, (iv) Refrigerated or temperature -controlled Products, (v) Products
which are outdated, shelf -worn, used or defaced and, therefore, unsuitable for
return to stock and resale as new, (vi) reagents, diagnostics, or chemicals, which
have been opened, or (vii) Products that UC has caused to be shipped outside
of the United States (or country of delivery), or (viii) any medical devices.
6. TIME
Seller's performance of its work under this Agreement vitally affects the
operation of UC and its facilities, therefore, delivery performance will be
measured against agreed to delivery schedules. In the event of any delay
Seller shall notify UC as soon as reasonably practicable. In the event that
Seller is unable to accommodate a specific delivery request, UC may, at its
own cost, procure the goods elsewhere.
7. PRICING AND APPLICABLE TAXES
a. Pricing for UC shall be as described in Attachment E and Attachment F.
b. Pricing for Participating Public Agencies shall be as described in Attachment
L and Attachment M.
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8. PRICE CONSISTENCY
Seller's internal pricing system is set-up to offer the agreed contract price to all UC
locations, and Seller shall use best efforts to ensure price consistency across all UC
locations. Notwithstanding the foregoing, deviations from the contract price (lower than
contract price) may be offered to specific UC customers to reflect special situations such
as new lab start-ups, bulk purchase discounts, or one-off competitive situations. To
ensure traceability and visibility of such pricing, Seller shall provide, where reasonable,
UC with a savings report identifying any such contract price deviations to UC as part of
the UCOP Quarterly Business reviews. Where Seller wishes to offer promotional
pricing, the parties shall work together to allow for short-term promotional pricing to be
offered on a UC system -wide basis. This will require specific start and end dates as well
as timely loading of catalogs to capture price changes.
9. DEPARTMENT STOREROOMS: PURCHASE AND SALE OF
PRODUCTS
Contract pricing for UC department storerooms shall be consistent; every UC
department storeroom shall receive equivalent pricing as per the contract price terms
described herein, provided that price deviations per storeroom may apply in respect of
Stockroom Volume Discounts and manufacturer supported price rebates for specific
opportunities. Seller agrees to sell Products to the UC department storerooms subject to
the terms and conditions set forth in this Agreement. To ensure traceability and visibility
of such pricing, Seller shall provide UC with a report identifying any such additional
discounts to UC as part of the UCOP Quarterly Business reviews.
10. CATALOG UPDATES
a. For UC, pricing for Franchise and Third Party products are subject to changes
as stated in Attachment E herein, and catalog updates shall be governed by E -
Commerce Attachment D. For Participating Public Agencies, catalog updates
are as described in Attachment K.
b. Other Catalog Updates. Seller may provide other updates to the UC catalog
quarterly or as mutually agreed. These updates may include (without limitation)
changes to content, the addition of new products, removal of discontinued
items, updates to unit of measure, products subject to Gross Minimum Margin,
updates to Third Party Products and special promotional offer price decreases.
Seller shall provide UC with notice of manufacturer price decreases in a timely
manner. Seller shall pass on to UC the benefit of such price decreases, provided
that the parties shall review and mutually agree the schedule for the
implementation of such changes into the UC catalog.
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c. Discontinued Products. To the extent that Seller has knowledge of a
discontinuation prior to 60 days of a Product being discontinued, Seller shall
notify UC sixty (60) days in advance of any Product being discontinued and
will, where agreed, hold limited stocks of the Product for UC to purchase for
up to a maximum of 60 days after the date of discontinuance.
d. Unit of Measurement Alignment. Seller will work closely with UC in respect
of unit of measure inconsistencies and to determine best possible match to units
requested.
e. Material Portfolio Adds. In the event of material addition of new suppliers to
Seller's portfolio, the parties shall discuss and agree, in good faith, the basis on
which such products shall transact.
11. FEES AND INCENTIVES
a. Outlined in Attachment G: Fees & Campus Engagement Funding for UC and
Attachment H for Public Participating Agencies
12. ADDITIONAL PROGRAMS AND PARTNERSHIPS
a. Campus Partnership: Where mutually beneficial and agreed upon, Seller will
support Campus Partnership programs and initiatives at each UC location.
b. Dedicated Resources: Seller will provide a dedicated Industry Director,
financial analyst and marketing resource to support the UC / OMNIA National
agreement.
c. Value Added Services: Seller will provide additional incentives, campus
partnerships, and programs to the UC as mutually agreed upon during the
Agreement term.
d. Thermo Umbrella Program: Seller will work together with UC in good faith to
develop a common set of terms and conditions as a common platform for the
purchase and sale of products and services across multiple divisions of Thermo
Fisher Scientific. Seller will, where applicable, work together in good faith with
UC to add addenda containing mutually agreed upon terms and conditions to
the Agreement in order to facilitate the purchase and sale of products and
services by UC from applicable divisions of Thermo Fisher Scientific.
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13. SERVICE STANDARDS
a. Service Standards. Seller shall provide the following minimum service
standards:
• Normal Delivery (stock) - for Market Basket Products: 98% within 2
Business Days
• After Receipt of Order (ARO) and for non -Market Basket Products:
98% within 3 Business Days ARO. Seller shall endeavor to supply
Supplier stocked Products on a next Business Day basis in respect of (i)
electronic orders placed before 2PM PST, and (ii) telephone orders
placed before 4PM PST. Where delivery of any product requires a
longer lead time for delivery or applicable installation, Seller will quote
the relevant lead time to UC at the time of order confirmation.
• Rush Delivery - 98% within 1 Business Day ARO. Seller agrees to use
all commercially available resources to deliver UC emergency orders,
for Seller's standard offering, within twenty-four (24) hours after
receipt of order at no additional charge to UC other than actual express
shipping charges from carrier.
• Returns- Seller offers a thirty (30) day "no hassles" return policy. UC
may return a Franchise Product within thirty (30) days of receipt by
obtaining a return goods authorization ("RGA") number from Seller and
referencing the RGA number on return shipping documents. Returns
made without an RGA number may be returned to the UC, freight
collect. If a 3`d -party product, returned Products are subject to
restocking fees charged by the manufacturer. UC does not pay Seller
or manufacturer's restocking fees for Franchise Products. Seller's return
policy does not apply to (i) Products which have been discontinued, (ii)
Products which are personalized or customized, (iii) Products not
purchased from Seller, (iv) Refrigerated or temperature -controlled
Products, (v) Products which are outdated, shelf -worn, used or defaced
and, therefore, unsuitable for return to stock and resale as new, (vi)
reagents, diagnostics, or chemicals, which have been opened, or (vii)
Products that UC has caused to be shipped outside of the United States
(or country of delivery), or (viii) any medical devices.
• Pick up returns - 98% within 3 Business Days, where possible given
carrier and RGA procedures.
• Credits -98% within 10 Business Days
• Request for report - within 10 Business Days for reasonable request for
commercially available information.
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• Line Item fill rate - 98% for Market Basket items, 95% for non -Market
Basket items, unless impacted by a force majeure event
• Delivery accuracy - 98% (correct place, correct size and quantity,
correct items)
• Delivery, on -time - 98% (against agreed delivery date confirmed by
Seller), unless impacted by a force majeure event
• Invoice/billing accuracy - 98% (applicable to initial invoice
submission)
• Customer service satisfaction - 95%
• Quote turnaround - as soon as reasonably practicable, depending on
manufacturer response
b. Should, however, the service levels fall below the minimum standards and
Seller does not take corrective actions within 14 days following the date of
UC written notification to Seller, UC shall escalate the matter to Seller's
senior management for development of a mutually agreed upon corrective
action plan to resolve the concern. In the event that, despite such actions,
Seller fails to improve performance and continues to materially fail the
relevant standards, UC reserves the right to terminate this Agreement.
c. Where a failure to perform under this Agreement is caused by a Force
Majeure event, Seller shall have the right to either: (i) terminate, by written
notice to UC, all or part of the Order without liability or (ii) extend the date
of delivery or performance for a period equal to the duration of the delay.
14. SUBSTITUTIONS
No substitutions of Products ordered including brand or size will be permitted except
with the express prior written approval from authorized UC personnel.
15. MINIMUM ORDER
There shall be no minimum order requirement for Franchise Products during the term
of this Agreement and any extension(s) of such term.
16. REPORTING
UC Reports. Seller will provide each UC campus quarterly summary sales, usage,
differentiated storeroom pricing, and UC specific incentive, and service level reports at
no additional cost to UC, in electronic format, i.e. Excel or CSV.
Participating Public Agency Reports, if requested, shall be as agreed upon between
Seller and agency.
17. GENERAL TERMS AND CONDITIONS
University of California Terms and Conditions. University of California Terms and
Conditions, Attachment B, dated April, 22, 2021. To the extent of any inconsistency
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between such terms and the main body of this Agreement, the main body of this
Agreement shall take precedence.
18. PRODUCT CERTIFICATION
a. Seller hereby certifies and warrants that all Products sold to UC under this
Agreement.
b. Shall be new and genuine. UC may permit the sale of refurbished or used
product, provided it is clearly designated as such prior to purchase and
approved by UC.
c. Shall be provided in the manufacturer's original packaging unless offered by
Seller in an alternative unit of measure.
d. Shall be manufactured and sold by, or distributed to, the Seller for sales in the
United States.
e. Shall be sold to the Seller from legal and reputable channels, which are
understood to be the manufacturer or authorized representatives of the
manufacturer of the Products.
f. Shall not be altered or misbranded within the meaning of the federal and state
laws applicable to such Products.
g. Shall not be produced in whole or in part by forced labor, convict labor, or
indentured labor under penal sanction.
h. Seller agrees that the Products furnished under this Agreement shall be covered
by the standard manufacturer warranties, and that the rights and remedies so
provided are in addition to and do not limit any rights afforded to UC by any
other article in this Agreement and any subsequent Agreement. Such warranties
will be effective notwithstanding prior inspection and/or acceptance of the
Products by UC, and in all cases shall commence upon shipment of the Products
to UC.
19. AGREEMENT TERM
Unless terminated per section 20, Termination of Agreement, this Agreement shall be
effective for a period of four (4) years, from June 15, 2021 ("Effective Date") through
June 30, 2025. Thereafter, the parties may by mutual agreement renew or extend the
Agreement for additional two (2) -year periods, up to ten (8) years maximum agreement
duration, at the same terms and conditions upon mutual agreement of the parties.
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20. TERMINATION OF AGREEMENT
a. Either Party may terminate this Agreement for cause at any time, in
accordance with the terms of Article 2 of University of California Terms
and Conditions, subject to the terms of this Clause 20.b.
b. Either party may terminate this Agreement for cause, at any time, upon
sixty (60) days prior written notice of termination and to the extent thereof
without penalty. A party shall have sixty (60) days from the date it receives
notice in which to cure any material breach of the Agreement and
termination shall be effective at the end of such period only if a party fails
to cure the breach.
c. If any termination of this Agreement takes place, Seller shall extend to UC,
upon UC's request, an additional ninety (90) day period to properly
implement a smooth transition. Fees for the services performed during the
additional ninety (90) days will be negotiated in good faith between UC
and Seller.
21. PROMOTIONS
Seller may offer promotions supportive of its efforts to sell Products under this
Agreement. Seller shall not give promotional awards to UC and end users, including by
way of example: clothing, personal electronic equipment, retail gift certificates or
similar items. Seller may, however, make available free Product(s), credit(s) on Product
purchases or other business -related award(s). UC affirms that it will not allow its
Covered Recipients (as defined in the Sunshine Act and relevant state statutes) to
request or accept any promotional products or other pecuniary incentives that are not
compliant with the Sunshine Act. UC shall also identify and disclose to Seller any
procurement activity or personnel acting for the benefit of or at the direction of any
Covered Recipients.
22. MARKETING REFERENCES
In accordance with California law and University policy and without prior express
written consent of UC, Seller shall not use the name of the University of California, or
any abbreviation thereof, or any name of which "University of California" is a part, or
any trademarks of the UC, in any commercial context
a. In addition to the above, if the reference only concerns a specific campus, then
the prior express written consent of a duly authorized officer of that campus is
required.
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b. Headings and Captions. The headings and captions contained in this
Agreement are inserted for convenience, or referenced only, and are not to be
deemed part of or to be used in construing this Agreement.
23. PRICE AUDITS
UC shall be entitled, upon reasonable prior notice to Seller, to perform an annual price
accuracy audit in respect of the prices charged by Seller over the prior year. Seller shall
provide UC with reasonable assistance in respect of such audits, including the provision
of reasonable history of sales information. In respect of Third Party Products, the parties
agree that such audit may include a sampling of Third Party pricing (not to exceed ten
(10%) percent of Third Party Products purchased). The UC shall have the right to
identify which Third Party Products purchased it wishes to audit within the sample.
Seller shall provide the auditor relevant details in determining the selling cost (MSRP
plus 4%) to the UC, including the Seller's invoice for a given item. Requests for specific
documentation in support of pricing may not be available in all cases. In the event there
are discrepancies found, the Seller will allow the UC to Audit up to 100% of Third Party
Products purchased. Disclosure of price information to any third party consultant
appointed by UC shall be subject to the consultant entering into reasonable
commitments of confidentiality with Seller in respect of the information disclosed. UC
will conduct such audits at its sole cost and expense, and all findings shall be deemed
to be Seller's confidential information. UC will share the results of such audits with
Seller and allow Seller a reasonable time period to respond to such findings. In
calculating any underpayment or overpayment, UC shall be required to offset any
undercharges against overcharges. In the event that UC wishes to engage a third party
auditor to perform any audits under this agreement or related to the RFP, such third
party auditor must execute a confidentiality agreement with Seller in a form acceptable
to Seller. Seller reserves the right to reject any third party auditor that Seller reasonably
believes will use its confidential and proprietary pricing and methods in any manner for
the benefit of the third party auditor, such as benchmarking, and/or the benefit of Seller's
competitors.
24. ENTIRE AGREEMENT
This Agreement, together with the above -named instruments, constitute the entire
agreement between UC and Seller with respect to the subject matter and supersedes all
previous negotiations, proposals, commitments, writings, advertisements, publications,
and understandings.
25. Order of Precedence.
Should any conflict arise between the terms of this Agreement and any other negotiated
documents, the inconsistency shall be resolved by giving precedence in the following
order:
1. This Agreement #2021002889 "University of California
Strategic Sourcing Agreement"
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2. Non -Disclosure Agreement for Participating Public Agencies
3. Letter of Intent for Participating Public Agencies
4. Fisher's Response to RFP#2101-July2020
5. RFP #2101-July2020 General Lab Suppliers and Distribution
Services
26. LIMIT OF LIABILITY FOR PARTICIPATING PUBLIC
AGENCIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, SELLER'S LIABILITY (WHETHER BY REASON OF BREACH OF
CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING
LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY
FOR WHICH SHALL BE AS PROVIDED UNDER SELLER'S STANDARD
WARRANTY PROVISIONS)) SHALL NOT EXCEED AN AMOUNT EQUAL TO
THE LESSER OF (A) THE TOTAL PURCHASE PRICE PAID BY
PARTICIPATING PUBLIC AGENCY TO SELLER FOR THE PRODUCT(S) OR
SERVICES GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION
DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA,
LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER
SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. OR (b) IS NEGLIGENT. HOWEVER, IN NO CASE SHALL THIS
LIMIT OF LIABILITY APPLY TO SELLER'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. THE FOREGOING INDEMNIFICATION PROVISION
STATES A PARTY'S ENTIRE LIABILITY TO THE OTHER FOR THE CLAIMS
DESCRIBED HEREIN.
DocuSign Envelope ID: 8C2D5797-9C24-47 B7-B78F-4B63EBFAEBAA
Attachment B: UC Terms and Conditions of Purchase, dated April 22, 2021
SEE ATTACHMENT B.
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Attachment C: FEMA Addendum
SEE ATTACHMENT C.
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Attachment D: UC e -Commerce Attachment
SEE ATTACHMENT D.
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Attachment E: UC Pricing
L 1
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Attachment F: UC Market Basket and UC Catalog Discounts
SEE ATTACHMENT F.
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Attachment G: UC Incentives
a.
b.
C.
d.
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C.
f.
g.
h.
1.
ii.
1.
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J•
k.
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Attachment H: Participating Public Agency Incentives
a.
b. Sustainability Incentive. Each eligible Participating Public Agency will be able to
receive up to $5,000 USD annually for sustainability programs. Sustainability program
participation is subject to Participating Public Agency maintaining Supplier's "Prime
Supplier Designation" as agreed between the parties in the Master Agreement.
Sustainability incentives shall be based on the following schedule:
Annual Spend
Sustainability Incentive
$1M - $3M
$1,000
$3M - $5M
$3,000
>$5M
$5,000
Seller will make payment of any sustainability incentive within forty-five (45) days of
the end of each contract year.
c. STEM Incentive: Supplier will work with Omnia Partners to identify and support at
least three (3) STEM programs annually, in underserved communities. Supplier will
coordinate with Omnia Partners to deliver Stem Credible, Innovation Nation, or
similar mutually agreed upon programs that provide hands-on and team -based
activities.
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d. In the event that Participating Public Agency is not in compliance with the payment
terms of this Agreement, or any other material contractual provision, Seller may
modify payment terms, require from Participating Public Agency full or partial
payment in advance, or other security that is satisfactory to Seller, and/or withhold
payment of any and all incentives or rebates otherwise earned by Participating Public
Agency, without notice and without incurring penalty or paying interest, until such
time as Participating Public Agency remits payment for such overdue invoices to
bring its accounts receivable balance into compliance or bring the Prime or Preferred
Supplier terms in to compliance.
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Attachment I: Principal Purchasing Agency (University of California) Requirements
Communication and Access
I.
II.
IV.
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V
Ecommerce and Conversion Activities
Refer to Attachment D: UC Ecommerce — Appendix or UC e -Commerce Attachment
Relationshi. with Su. iTiers
I.
II.
30
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Attachment J: Prime and Preferred Supplier (Tiers 1-4) (Excluding University of
California)
Eligibility for "Prime" and "Preferred" Supplier designation, as outlined in Section 2.h of the
Agreement, shall be subject to the below requirements:
Eligibility and Requirements
Registered OMNIA Partners Participating Public
Agency
Registered OMNIA Partners Participating Agency
Signed Letter of Intent by Participating Public Agency
(Seller and Agency)
Signed Letter of Intent by Participating Agency (Seller
and Agency)
Signed Non -disclosure Agreement for Contract
Terms, Conditions and Pricing
Signed Non -disclosure Agreement for Contract
Terms, Conditions and Pricing
Signed Master Pricing Agreement
Signed Master Pricing Agreement
Communication and designation of Preferred
Agreement award to user community and
manufacturer community. Promotion of benefits of
this Agreement to end users and procurement teams
along with reasonable support to monitor
implementation and compliance
Communication and designation of Prime Agreement
award to user community and manufacturer
community. Promotion of benefits of this Agreement
to end users and procurement teams along with
reasonable support to monitor implementation and
compliance
Unless mutually agreed upon, Participating Public
Agency will refrain from issuing an RFP for all or part
of its laboratory product supply business during the
term unless Fisher materially fails to meet its
obligations under this Agreement
Unless mutually agreed upon, Participating Public
Agency department will refrain from issuing an RFP
for all or part of its laboratory product supply business
during the term unless Seller materially fails to meet
its obligations under this Agreement
Seller designated as Preferred Supplier on
eCommerce platforms. Full breadth of Seller's
catalog made available for ordering and enabled on
Preferred Public Agency's eCommerce platform, less
items regulated by state or local laws. Seller channel,
where enabled, shall remain open in eCommerce
environment.
Seller designated as Primary Supplier on eCommerce
platforms. Full breadth of Seller's catalog made
available for ordering and enabled on customers
eCommerce platform, less items regulated by state or
local laws. Seller, where enabled, shall remain open
in eCommerce environment.
Seller will be designated as a distributor/supplier for
all manufacturer supported pricing programs.
Seller will be exclusive distributor/supplier for all
manufacturer supported pricing programs.
Full on -campus access to Seller
Full on -campus access to Seller; Limited access to
competitors
Participating Public Agency and Seller shall regularly
review aggregate laboratory supply product spend
with a goal of identifying opportunities for competitive
spend conversion to Seller.
Participating Public Agency participation in semi-
annual business reviews with Seller in support of
enhanced supplier management efforts and Seller's
designation as primary supplier. These discussions
will include the sharing and review of competitive
data, including, but not limited to, promotional activity,
ecommerce content (hosted and punch -out) and
spend data. Participating Public Agency shall co-
operate to implement plans to convert spend with
alternative channels to Seller.
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Eligibility and Requirements
Preferred
I Prime
Projected volume where Seller represents 80% of
available spend (market share reports to be shared
with Seller quarterly)
Competitors are to only have hosted catalogs on
purchasing platform listing exclusives and their
corporate brands only. No level II punch -out.
Blocking to be completed within 90 days of mutually
executed agreement.
Participating Public Agency will use its best efforts in
conducting joint marketing campaigns to highlight
Seller's position as prime lab supplier, including
(without limitation), the procurement or purchasing
internal website.
Manufacturers available through Seller will not have
duplicate presences on eCommerce platforms
Ensure weighting of attributes supporting Seller as
priority supplier
Storeroom or on -site consignment programs will be
offered/supported by Seller services and or products.
Risk of being removed from Prime or Preferred Program if requirements are not met
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Government Table
Preferred
Primary
Contract Value -Add to Participating Agency
+
+
Cost Saving
Fisher Scientific product Discount Schedules
+
+
Market Basket for Top Items Purchased in the Government
Segment
+
++
Customer Specific Hot Lists
+
++
Manufacturer Rebated Pricing
+
+
Exclusive Promotions
+
++
New Lab Start Up Program
+
+
Switch and Save Program
+
Shipping Cost Avoidance
+
+
Sustainability Incentive
+
Diverse Supplier Program
+
STEM Programs
+
Service and Programs
Pipette Calibration
+
+
Instrument Certification
+
+
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Laboratory Casework Installation
+
+
Finance and Leasing Programs
+
+
Global Export
+
+
Inventory Management Services
+
+
Custom Oligos, Antibodies and Peptides
+
+
e-lntegration
+
+
Encompass Procurement Services
+
+
Unity Lab Services
+
+
Global Export
+
+
Dedicated Single Point of Contact for OMNIA Partners
+
+
Team of Sales Management and Representatives
+
+
Safety, Life Science, and Chemical Specialists
+
+
Dedicated Customer Service
+
+
Consolidated Master Contract
+
+
Number of "+" indicates differentiated value of commitment
Attachment J Continues on Next Page
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Attachment K: Participating Public Agency Pricing
Pricing. All Franchise Product Pricing for Participating Public Agencies, specifically
excluding manufacturer direct price agreement and or special manufacturer
agreements, will be held for 12 months not to exceed March 31st of 2022, unless the
Gross Minimum Margin (GMM) for a product is less than 15%, which may be
adjusted at any time. Actual pricing for the Category Discounts is derived as List
Less discounts from the January 2022 Seller published list price. After March 31st,
2022, the Market Basket and Category discounts will be derived from the Seller's
January published List price each calendar year. All subsequent updates or price
adjustments, whether increase or decrease in the prices, shall be subject to the terms
as outlined in sections a through f below.
a. The Market Basket list for each Tier shall be as outlined in Attachment L and
shall be first updated on March 31, 2022. The Market Basket shall remain firm
for the term of the Agreement. Customized SKU pricing (as shown in the table
below) will be established for Franchise Products less than $1000, upon
mutual execution of the NDA and LOI, and accompany the document as an
amendment between the two (2) parties. These items will be refreshed where
mutually agreed, as needed. Seller shall be entitled to implement revised
pricing from the first business day in the new calendar year.
Tiers
Government
Tier 1
Prime
Preferred
Tier 2
Prime
Preferred
Tier 3/4
Prime
Preferred
36
300 Sku market basket
500 custom skus
Tier 1 Category Discounts
150 Sku market basket
200 custom skus
Tier 1 Category Discounts
300 sku market basket
500 custom skus
Tier 2 Category Discounts
150 sku market basket
200 custom skus
Tier 2 Category Discounts
300 sku market basket
500 custom skus
Tier 3 Category Discounts
150 sku market basket
200 custom skus
Tier 3 Category Discounts
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b. Category Discount Schedule. Attachment M is a schedule of discounts for
those Franchise Products which are not included in the Market Basket. For the
avoidance of doubt, Products where Participating Public Agency has agreed
pricing direct with the manufacturer (with Seller acting as distributor) then
such products shall be priced on the basis of the rebated pricing or agreement
between Participating Public Agency and the manufacturer. Where
manufacturer rebate pricing exists, it shall be governed by the terms set by the
manufacturer. Should this pricing expire without renewal by the manufacturer,
pricing to Participating Public Agency shall be determined from the Category
Discount Schedule.
c. Prices for Third Party Products shall be calculated as supplier's current list price
+ 31%, inclusive of standard freight.
d. Payment terms for Participating Public Agencies are Net 30 from date of
invoice.
Notwithstanding any of the preceding language, in no event shall any Product be sold below
cost. In the event that a Product is priced below cost, Seller shall be permitted to immediately
raise the price for 1) Franchise Products, to the Gross Minimum Margin, and for 2) Third Party
Products, to actual cost (inclusive of freight).
37
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Attachment L
Participating Public Agency Market Basket(s) (by Tier)
SEE ATTACHMENT L.
DocuSign Envelope ID: 8C2D5797-9C24-47 B7-B78F-4B63EBFAEBAA
Attachment M
Participating Public Agency Catalog Discounts (by Tier)
SEE ATTACHMENT M.
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Attachment B:
Terms and Conditions of Purchase
Fisher Scientific, Agreement 2021002889
1114 DV Z. i4.S ire
cgt.uFoRrirA
ARTICLE 1 —GENERAL
The equipment, materials, or supplies ("Goods") and/or services ("Services") furnished by Supplier (together, the "Goods and Services")
and covered by the UC Purchase Order ("PO") and/or other agreement (which, when combined with these Terms and Conditions and any
other documents incorporated by reference, will constitute the "Agreement") are governed by the terms and conditions set forth herein.
As used herein, the term "Supplier" includes Supplier and its sub -suppliers at any tier. As used herein, "UC" refers to The Regents of the
University of California, a corporation described in California Constitution Art. IX, Sec. 9, on behalf of the UC Locations identified in the
Agreement and/or the PO. UC and Supplier individually will be referred to as "Party" and collectively as "Parties." Any defined terms not
defined in these Terms and Conditions of Purchase will have the meaning ascribed to such term in any of the other documents incorporated
in and constituting the Agreement. No other terms or conditions will be binding upon the Parties unless accepted by them in writing.
Written acceptance or shipment of all or any portion of the Goods, or the performance of all or any portion of the Services, covered by the
Agreement, will constitute Supplier's unqualified acceptance of all of the Agreement's terms and conditions. The terms of any proposal
referred to in the Agreement are included and made a part of the Agreement only to the extent the proposal specifies the Goods and/or
Services ordered, the price therefor, and the delivery thereof, and then only to the extent that such terms are consistent with the terms
and conditions of the Agreement.
ARTICLE 2 —TERM AND TERMINATION
A. As applicable, the term of the Agreement ("Initial Term") will be stated in the Agreement. Following the Initial Term, the Agreement
may be extended by written mutual agreement.
B. UC's obligation to proceed is conditioned upon the appropriation of state, federal and other sources of funds not controlled by UC
("Funding"). UC will have the right to terminate the Agreement without damage, penalty, cost or further obligation in the event that
through no action or inaction on the part of UC, the Funding is withdrawn.
C. UC may, by written notice stating the extent and effective date thereof, terminate the Agreement for convenience in whole or in part,
at any time. The effective date of such termination shall be consistent with any requirements for providing notice specified in the
Agreement, or immediate if no such terms are set forth in the Agreement. As specified in the termination notice, UC will pay Supplier
as full compensation the pro rata Agreement price for performance through the later of the date that (i) UC provided Supplier with
notice of termination or (ii) Supplier's provision of Goods and/or Services will terminate
D. Intentionally Deleted.
E. UC's Appendix — Data Security, Appendix — BAA, and/or Appendix — GDPR will control in the event that one or more appendices are
incorporated into the Agreement and conflicts with the provisions of this Article.
ARTICLE 3— PRICING, INVOICING METHOD, AND SETTLEMENT METHOD AND TERMS.
Pricing is set forth in the Agreement or Purchase Order, at the time of the order and the amount UC is charged and responsible for shall
not exceed the amount specified in the Agreement unless UC has given prior written approval. Unless otherwise agreed in writing by UC,
Supplier will use the invoicing method and payment settlement set forth in these terms or the Agreement. UC will pay Supplier, upon
submission of invoices, for Goods and/or Services provided. Invoices must be itemized and reference the Agreement or Purchase Order
number. UC will not pay shipping, packaging or handling expenses, unless specified in the Agreement or Purchase Order. Unless otherwise
provided, freight is to be FOB destination. Any of Supplier's expenses that UC agrees to reimburse will be reimbursed under UC's Travel
Policy, which may be found at http://www.ucop.edu/central-travel-management/resources/index.html. Where applicable, Supplier will pay
all taxes imposed on Supplier in connection with its performance under the Agreement, including any federal, state and local income, sales,
use, excise and other taxes or assessments. Notwithstanding any other provision to the contrary, UC will not be responsible for any fees,
interest or surcharges Supplier wishes to impose.
Page 1 of 16
Revised 2/27/2020
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Attachment B:
Terms and Conditions of Purchase
Fisher Scientific, Agreement 2021002889
J r, 4 I E SIT
s I �i,�`
L-
ARTICLE 4 — INSPECTION.
The Goods and/or Services furnished will be exactly as specified in the manufacturer's specifications, free from all defects in Supplier's
performance, design, skill and materials, and, except as otherwise provided in the Agreement, will be subjectto inspection and test by UC.
If, prior to final acceptance, any Goods and/or Services furnished are found to be incomplete, or not as specified, UC may reject them,
require Supplier to correct them at the sole cost of Supplier, or require provision of such Goods and/or Services at a reduction in price that
is equitable under the circumstances. If Supplier is unable or refuses to correct such deficiencies within a time UC deems reasonable, UC
may terminate the Agreement in whole or in part. Supplier will bear all risks as to rejected Goods and/or Services and, in addition to any
costs for which Supplier may become liable to UC under other provisions of the Agreement, will reimburse UC for all transportation costs,
other related costs incurred, or payments to Supplier in accordance with the terms of the Agreement for unaccepted Goods and/or Services
and materials and supplies incidental thereto. Notwithstanding final acceptance and payment, Supplier will be liable for latent defects,
fraud or such gross mistakes as amount to fraud.
ARTICLE 5 —ASSIGNED PERSONNEL; CHARACTER OF SERVICES
Supplier will provide the Services as an independent contractor and furnish all equipment, personnel and materiel sufficient to provide the
Services expeditiously and efficiently, during as many hours per shift and shifts per week, and at such locations as UC may so require.
Supplier will devote only its best -qualified personnel to work under the Agreement. Should UC inform Supplier that anyone providing the
Services is not working to this standard, Supplier will immediately remove such personnel from providing Services and he or she will not
again, without UC's written permission, be assigned to provide Services. At no time will Supplier or Supplier's employees, sub -suppliers,
agents, or assigns be considered employees of UC for any purpose, including but not limited to workers' compensation provisions. Supplier
shall not have the power nor right to bind or obligate UC, and Supplier shall not hold itself out as having such authority. Supplier shall be
responsible to UC for all Services performed by Supplier's employees, agents and subcontractors, including being responsible for ensuring
payment of all unemployment, social security, payroll, contributions and other taxes with respect to such employees, agents and
subcontractors.
ARTICLE 6— WARRANTIES
In addition to the warranties set forth in Articles 11, 12, 17, 23, 24, 25 and 26 herein, Supplier makes the following warranties. Supplier
acknowledges that failure to comply with any of the warranties in the Agreement will constitute a material breach of the Agreement and
UC will have the right to terminate the Agreement without damage, penalty, cost or further obligation.
A. General Warranties. Supplier represents, warrants and covenants that: (i) Supplier is free to enter into this Agreement and that
Supplier is not, and will not become, during the Term, subject to any restrictions that might restrict or prohibit Supplier from
performing the Services or providing the Goods ordered hereunder; (ii) Supplier will comply with all applicable laws, rules and
regulations in performing Supplier's obligations hereunder; (iii) the Goods and/or Services shall be rendered with promptness and
diligence and shall be executed in a skilled manner by competent personnel, in accordance with the prevailing industry standards; and
if UC Appendix Data Security is NOT included:(iv) Supplier has developed a business interruption and disaster recovery program and is
executing such program to assess and reduce the extent to which Supplier's hardware, software and embedded systems may be
susceptible to errors or failures in various crisis (or force majeure) situations; (v) if Supplier uses electronic systems for creating,
modifying, maintaining, archiving, retrieving or transmitting any records, including test results that are required by, or subject to
inspection by an applicable regulatory authority, then Supplier represents and warrants that Supplier's systems for electronic records
are in compliance; and (vi) Supplier agrees that the Goods and/or Services furnished under the Agreement will be covered by the most
favorable warranties Supplier gives to any customer for the same or substantially similar goods or services, or such other more
favorable warranties as specified in the Agreement. The rights and remedies so provided are in addition to and do not limit any rights
afforded to UC by any other article of the Agreement.
B. Permits and Licenses. Supplier agrees to procure all necessary permits or licenses and abide by all applicable laws, regulations and
ordinances of the United States and of the state, territory and political subdivision or any other country in which the Goods and/or
Services are provided.
C. Federal and State Water and Air Pollution Laws. Where applicable, Supplier warrants that it complies with the requirements in UC
Business and Finance Bulletin BUS -56 (Materiel Management; Purchases from Entities Violating State or Federal Water or Air Pollution
Laws). Consistent with California Government Code 4477, these requirements do not permit UC to contract with entities in violation
of Federal or State water or air pollution laws.
D. Web Accessibility Requirements. As applicable to the Supplies and/or Services being provided under the Agreement, Supplier warrants
that:
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1. It complies with California and federal disability laws and regulations; and
2. Intentionally Deleted.
3. Supplier agrees to promptly respond to and resolve any complaint regarding accessibility of its Goods and/or Services;
E. General Accessibility Requirements. Supplier warrants that:
1. It will comply with California and federal disability laws and regulations;
2. Intentionally Deleted; and
3. Supplier agrees to promptly respond to and use reasonable efforts to resolve and remediate any complaint regarding accessibility
of its Goods and/or Services.
F. Warranty of Quiet Enjoyment. Supplier warrants that Supplier has the right of Quiet Enjoyment in and conveys the right of Quiet
Enjoyment to UC for UC's use of, any and all intellectual property that will be needed for Supplier's provision, and UC's use of, the
Goods and/or Services provided by Supplier under the Agreement.
G. California Child Abuse and Neglect Reporting Act ("CANRA"). Where applicable, Supplier warrants that it complies with CANRA.
H. Debarment and Suspension. Supplier warrants that it is not presently debarred, suspended, proposed for debarment, or declared
ineligible for award of federal contracts or participation in federal assistance programs or activities.
I. UC Trademark Licensing Code of Conduct. If the Goods will bear UC's name (including UC campus na mes, abbreviations of these names,
UC logos, UC mascots, or UC seals) or other trademarks owned by UC, Supplier warrants that it holds a valid license from UC and
complies with the Trademark Licensing Code of Conduct policy, available at http://policy.ucop.edu/doc/3000130/TrademarkLicensing.
J. Outsourcing (Public Contract Code section 12147) Compliance. Supplier warrants that if the Agreement will displace UC employees,
no funds paid under the Agreement will be used to train workers who are located outside of the United States, or plan to relocate
outside the United States as part of the Agreement. Additionally, Supplier warrants that no work will be performed under the
Agreement with workers outside the United States, except as described in Supplier's bid. If Supplier or its sub -supplier performs the
Agreement with workers outside the United States during the life of the Agreement and Supplier did not describe such work in its bid,
Supplier acknowledges and agrees that (i) UC may terminate the Agreement without further obligation for noncompliance, and (ii)
Supplier will forfeit to UC the amount UC paid for the percentage of work that was performed with workers outside the United States
and not described in Supplier's bid.
K. General Product Warranty. Supplier warrants that the Products will operate or perform substantially in conformance with Supplier's
published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage
by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package
inserts. If a period of time is not specified in Supplier's product documentation, published specifications or package inserts, the
warranty period shall be one (1) year from the date of shipment to UC for equipment and ninety (90) days for all other products (the
"Warranty Period"). Supplier agrees during the Warranty Period, to repair or replace, at Supplier's option, defective Products so as
to cause the same to operate in substantial conformance with said published specifications; provided that UC shall (a) notify Supplier
upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the
warranty claim; and (b) after Supplier's review within 2 business days, Supplier will provide UC with service data and/or a Return
Material Authorization ("RMA"). Should the return procedure include biohazard decontamination procedures and other product -
specific handling instructions, then Supplier shall reimburse the UC of those costs. If applicable, Supplier may request UC to return
the defective Products to Supplier at no cost to the UC. If UC determines that a product repair is acceptable, all replacement parts
shall be new and shall be free to the UC. All replaced parts may become the property of Supplier and the Supplier is responsible for
the removal of the part. Shipment to UC of repaired or replacement Products shall be made in accordance with the Delivery provisions
of the Supplier's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Supplier elects to repair
defective medical device instruments, Supplier may, in its sole discretion, provide a replacement loaner instrument to UC as necessary
for use while the instruments are being repaired. In no event shall Supplier have any obligation to make repairs, replacements or
corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii)
misuse, fault or negligence of or by UC, (iv) use of the Products in a manner for which they were not designed, (v) causes external to
the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products
or (vii) use of the Products in combination with equipment or software not supplied by Supplier. If Supplier determines that Products
for which UC has requested warranty services are not covered by the warranty hereunder, UC shall pay or reimburse Supplier for all
costs of investigating and responding to such request at Supplier's then prevailing time and materials rates. If Supplier provides repair
services or replacement parts that are not covered by this warranty, UC shall pay Supplier therefor at Supplier's then prevailing time
and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER
TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SUPPLIER WITHOUT SUPPLIER'S PRIOR
WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SUPPLIER, SHALL IMMEDIATELY VOID AND CANCEL ALL
WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS. THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR
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•
OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF UC IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS
EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR -
FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
ARTICLE 7— INTELLECTUAL PROPERTY, COPYRIGHT, PATENTS, AND DATA RIGHTS
A. Intentionally Deleted
ARTICLE 8— INDEMNITY AND LIABILITY
To the fullest extent permitted by law, Supplier will defend, indemnify, and hold harmless UC, its officers, employees, and agents, from and
against all losses, expenses (including, without limitation, reasonable attorneys' fees and costs), damages, and liabilities of any kind resulting
from or arising out of the Agreement, including the performance hereunder of Supplier, its officers, employees, agents, sub -suppliers, or
anyone directly or indirectly employed by Supplier, or any person or persons under Supplier's direction and control, provided such losses,
expenses, damages and liabilities are due or claimed to be due to the negligence or willful misconduct of Supplier, its officers, employees,
agents, sub- suppliers, or anyone directly or indirectly employed by Supplier, or any person or persons under Supplier'sd irection and control.
Any such indemnity shall be offset by UC's contributory negligence or misconduct, to the extent permissible under California law. UC agrees
to provide Supplier with prompt notice of any such claim or action and to permit Supplier to defend any claim or action, and that UC will
cooperate fully in such defense. UC retains the right to participate in the defense against any such claim or action, and the right to consent
to any settlement, which consent will not unreasonably be withheld.
In the event Appendix DS applies to this Agreement, Supplier shall reimburse or otherwise be responsible for any costs, fines or penalties
imposed against UC as a result of Supplier's Breach of Institutional Information and/or failure to cooperate with UC's response to such
Breach. As used herein, "Breach" means: (1) any disclosure of Institutional Information to an unauthorized party or in an unlawful manner;
(2) unauthorized or unlawful acquisition of information that compromises the security, confidentiality or integrity of Institutional
Information and/or IT Resources; and (3) the acquisition, access, use, or disclosure of Protected Health Information or medical information
in a manner not permitted under the Health Insurance Portability and Accountability Act (HIPAA) or California law. "IT Resources" means
IT infrastructure, cloud services, software, and/or hardware with computing and/or networking capability that is Supplier owned/managed,
or UC-owned, or a personally owned device that stores Institutional Information, is connected to UC systems, is connected to UC networks,
or is used for UC business.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SUPPLIER'S LIABILITY (WHETHER BY REASON OF BREACH OF
CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SUPPLIER FOR BREACH OF WARRANTY (THE SOLE
REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SUPPLIER'S STANDARD WARRANTY PROVISIONS)) SHALL NOT EXCEED AN AMOUNT
EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE PAID BY UC TO SUPPLIER FOR THE PRODUCT(S) OR SERVICES GIVING RISE TO
SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF
GOODWILL), REGARDLESS OF WHETHER SUPPLIER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. OR (b) IS NEGLIGENT.
HOWEVER, IN NO CASE SHALL THIS LIMIT OF LIABILITY APPLY TO SUPPLIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE
FOREGOING INDEMNIFICATION PROVISION STATES A PARTY'S ENTIRE LIABILITY TO THE OTHER FOR THE CLAIMS DESCRIBED HEREIN.
ARTICLE 9— INSURANCE
Supplier, at its sole cost and expense, will insure its activities in connection with providing the Goods and/or Services and obtain, keep in
force, and maintain the following insurance with the minimum limits set forth below, unless UC specifies otherwise:
A. Commercial Form General Liability Insurance (contractual liability included) with limits as follows:
1. Each Occurrence $ 1,000,000
2. Products/Completed Operations Aggregate $ 2,000,000
3. Personal and Advertising Injury $ 1,000,000
4. General Aggregate $ 2,000,000
B. Business Automobile Liability Insurance for owned, scheduled, non -owned, or hired automobiles with a combined single limit of not
less than one million dollars ($1,000,000) per occurrence. (Required only if Supplier drives on UC premises or transports UC employees,
officers, invitees, or agents in the course of supplying the Goods and/or Services to UC.)
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C. Intentionally Deleted
D. Workers' Compensation as required by applicable state law and Employer's Liability with limits of one million dollars ($1,000,000) per
occurrence. Workers' Compensation as required by applicable state law and Employer's Liability with limits of one million dollars
($1,000,000) per occurrence.
E. Intentionally Deleted.
Protection Level Classifications are defined in the UC Systemwide Information Security Classification of Information and IT Resources:
https://securitv.ucop.edu/policies/institutional-information-and-it-resource-classification.html
F. Intentionally Deleted.
I. The coverages referred to under A and B of this Article must include UC as an additional insured. It is understood that the coverage
and limits referred to under A, B and C of this Article will not in any way limit Supplier's liability. Supplier will furnish UC with certificates
of insurance (and the relevant endorsement pages) evidencing compliance with all requirements prior to commencing work under the
Agreement. Such certificates will:
1. Indicate that The Regents of the University of California has been endorsed as an additional insured for the coverage referred to
under A and B of this Article. This provision will only apply in proportion to and to the extent of the negligent acts or omissions
of Supplier, its officers, agents, or employees.
2. Include a provision that the coverage will be primary and will not participate with or be excess over any valid and collectible
insurance or program of self-insurance carried or maintained by UC.
ARTICLE 10 — USE OF UC NAME AND TRADEMARKS
Supplier will not use the UC name, abbreviation of the UC name, trade names and/or trademarks (i.e., logos and seals) or any derivation
thereof, in anyform or manner in advertisements, reports, or other information released to the public, or place the UC name, abbreviations,
trade names and/or trademarks or any derivation thereof on any consumer goods, products, or services for sale or distribution to the
public, without U C' s prior written approval. Supplier agrees to comply at all times with California Education Code Section 92000.
ARTICLE 11— FEDERAL FUNDS
Supplier who supplies Goods and/or Services certifies and represents its compliance with the following clauses, as applicable. Supplier shall
promptly notify UC of any change of status with regard to these certifications and representations. These certifications and representations
are material statements upon which UC will rely.
A. For commercial transactions involving funds on a federal contract (federal awards governed by the FAR), the following provisions
apply, as applicable:
1. FAR 52.203-13, Contractor Code of Business Ethics and Conduct;
2. FAR 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights;
3. FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements;
4. FAR 52.219-8, Utilization of Small Business Concerns;
5. FAR 52.222-17, Non -displacement of Qualified Workers;
6. FAR 52.222-21, Prohibition of Segregated Facilities;
7. FAR 52.222-26, Equal Opportunity;
8. FAR 52.222-35, Equal Opportunity for Veterans;
9. FAR 52.222-36, Equal Opportunity for Workers with Disabilities;
10. FAR 52.222-37, Employment Reports on Veterans;
11. FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act;
12. FAR 52.222-41, Service Contract Labor Standards;
13. FAR 52.222-50, Combating Trafficking in Persons;
14. FAR 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration,
or Repair of Certain Equipment - Requirements;
15. FAR 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services -
Requirements;
16. FAR 52.222-54, Employment Eligibility Verification;
17. FAR 52.222-55, Minimum Wages Under Executive Order 13658;
18. FAR 52.222-62, Paid Sick Leave under Executive Order 13706;
19. FAR 52.224-3, Privacy Training;
20. FAR 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations;
21. FAR 52.233-1, Disputes; and
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22. FAR 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels.
B. For non-commercial transactions involving funds on a federal contract, the UC Appendix titled 'Federal Government Contracts Special
terms and Conditions (Non -Commercial Items or Services)' and located at www.ucop.edu/procurement-services/policies-
forms/index.html is hereby incorporated herein by this reference.
C. For transactions involving funds on a federal grant or cooperative agreement (federal awards governed by eCFR Title 2, Subtitle A,
Chapter II, Part 200) the following provisions apply, as applicable:
1. Rights to Inventions. If Supplier is a small business firm or nonprofit organization, and is providing experimental, development,
or research work under this transaction, Supplier must comply with the requirements of 3 CFR Part 401, "Rights to Inventions
Made by nonprofit Organizations and Small Business Firms Under Government Grants, Contracts, and Cooperative Agreements".
2. Clean Air Act. Supplier agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act
(42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be
reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
3. Byrd Anti -Lobbying. Supplier certifies that it will not, and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352.
4. Procurement of Recovered Materials. If Supplier is a state agency or agency of a political subdivision of a state, then Supplier
must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.
D. In these provisions, the term "contractor" as used therein will refer to Supplier, and the terms "Government" or "Contracting Officer"
as used therein will refer to UC. Where a purchase of items is for fulfillment of a specific U.S. Government prime or subcontract,
additional information and/or terms and conditions may be included in an attached supplement. By submitting an invoice to UC,
Supplier is representing to UC that, at the time of submission:
1. Neither Supplier nor its principals are presently debarred, suspended, or proposed for debarment by the U.S. government (see
FAR 52.209-6);
2. Supplier has filed all compliance reports required by the Equal Opportunity clause (see FAR 52.222-22); and
3. Any Supplier representations to UC about U.S. Small Business Administration or state and local classifications, including but not
limited to size standards, ownership, and control, are accurate and complete.
4. Byrd Anti -Lobbying. Supplier certifies that it will not, and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352.
ARTICLE 12— EQUAL OPPORTUNITY AFFIRMATIVE ACTION
Supplier will abide by the requirements set forth in Executive Orders 11246 and 11375. Where applicable, Supplier will comply with 41 CFR
§§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), incorporated by reference with this statement: "This contractor and subcontractor shall abide
by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified
individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals
based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that
covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard
to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability." With respect to
activities occurring in the State of California, Supplier agrees to adhere to the California Fair Employment and Housing Act. Supplier will
provide UC on request a breakdown of its la borforce by groups as specified by UC and will discuss with UC its policies and practices relating
to its affirmative action programs. Supplier will not maintain or provide facilities for employees at any establishment under its control that
are segregated on a basis prohibited by federal law. Separate or single -user restrooms and necessary dressing or sleeping areas must be
provided, however, to ensure privacy.
ARTICLE 13 —LIENS
Supplier agrees that upon UC's request, Supplier will submit a sworn statement setting forth the work performed or material furnished by
sub -suppliers and material men, and the amount due and to become due to each, and that before the final payment called for under the
Agreement, will upon UC's request submit to UC a complete set of vouchers showing what payments have been made for such work
performed or material furnished. Supplier will promptly notify UC in writing, of any claims, demands, causes of action, liens or suits brought
to its attention that arise out of the Agreement. UC will not make final payment until Supplier, if required, delivers to UC a complete release
of all liens arising out of the Agreement, or receipts in full in lieu thereof, as UC may require, and if required in either case, an affidavit that
as far as it has knowledge or information, the receipts include all the labor and materials for which a lien could be filed; but Supplier may,
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if any sub -supplier refuses to furnish a release or receipt in full, furnish a bond satisfactory to UC to indemnify it against any claim by lien
or otherwise. If any lien or claim remains unsatisfied after all payments are made, Supplier will refund to UC all monies that UC may be
compelled to pay in discharging such lien or claim, including all costs and reasonable attorneys' fees.
ARTICLE 14 —PREMISES WHERE SERVICES ARE PROVIDED
A. Cleaning Up. Supplier will at all times keep UC premises where the Services are performed and adjoining premises free from
accumulations of waste material or rubbish caused by its employees or work of any of its sub -suppliers, and, at the completion of the
Services; will remove all rubbish from and about the premises and all its tools, scaffolding, and surplus materials, and will leave the
premises "broom clean" or its equivalent, unless more exactly specified. In case of dispute between Supplier and its sub -suppliers as
to responsibility for the removal of the rubbish, or if it is not promptly removed, UC may remove the rubbish and charge the cost to
Supplier.
B. Environmental, Safety, Health and Fire Protection. Supplier will take all reasonable precautions in providing the Goods and Services to
protect the health and safety of UC employees and members of the public and to minimize danger from all hazards to life and property,
and will comply with all applicable environmental protection, health, safety, and fire protection regulations and requirements
(including reporting requirements). In the event that Supplier fails to comply with such regulations and requirements, UC may, without
prejudice to any other legal or contractual rights of UC, issue an order stopping all or any part of the provision of the Goods and/or
Services; thereafter a start order for resumption of providing the Goods and/or Services may be issued at UC's discretion. Supplier will
not be entitled to make a claim for extension of time or for compensation or damages by reason of or in connection with such stoppage.
Supplier will have sole responsibility for the safety of all persons employed by Supplier and its sub -suppliers on UC premises, or any
other person who enters upon UC premises for reasons relating to the Agreement. Supplier will at all times maintain good order among
its employees and all other persons who come onto UC's premises at Supplier's request and will not engage any unfit or unskilled
person to provide the Goods and/or Services. Supplier will confine its employees and all other persons who come onto UC's premises
at Supplier's request or for reasons relating to the Agreement and its equipment to that portion of UC's premises where the Services
are to be provided or to roads leading to and from such work sites, and to any other area which UC may permit Supplier to use.
Supplier will take all reasonable measures and precautions at all times to prevent injuries to or the death of any of its employees or any
other person who enters upon UC premises at Supplier's request. Such measures and precautions will include, but will not be limited
to, all safeguards and warnings necessary to protect workers and others against any conditions on the premises that could be
dangerous and to prevent accidents of any kind whenever the Goods and/or Services are being provided in proximity to any moving or
operating machinery, equipment or facilities, whether such machinery, equipment or facilities are the property of or are being
operated by, Supplier, its sub -suppliers, UC or other persons. To the extent compliance is required, Supplier will comply with all relevant
UC safety rules and regulations when on UC premises.
C. Tobacco -free Campus. UC is a tobacco -free institution. Use of cigarettes, cigars, oral tobacco, electronic cigarettes and all other
tobacco products is prohibited on all UC owned or leased sites.
ARTICLE 15 — LIABILITY FOR UC - FURNISHED PROPERTY
Supplier assumes complete liability for any materials UC furnishes to Supplier in connection with the Agreement and Supplier agrees to pay
for any UC materials Supplier damages or otherwise is not able to account for to UC's satisfaction. UC furnishing to Supplier any materials
in connection with the Agreement will not, unless otherwise expressly provided in writing by UC, be construed to vest title thereto in
Supplier.
ARTICLE 16 — COOPERATION
Supplier and its sub -suppliers, if any, will cooperate with UC and other suppliers and will so provide the Services that other cooperating
suppliers will not be hindered, delayed or interfered with in the progress of their work, and so that all of such work will be a finished and
complete job of its kind.
ARTICLE 17 —ADDITIONAL TERMS APPLICABLE TO THE FURNISHING OF GOODS
The terms in this Article have special application to the furnishing of Goods:
A.
B.
C.
Price Decreases. Price decreases shall be provided as part of the regular catalog updates.
Declared Valuation of Shipments. Except as otherwise provided in the Agreement, all shipments by Supplier under the Agreement for
UC's account will be made at the maximum declared value applicable to the Goods.
Title. Title to the Goods purchased under the Agreement will pass directlyfrom Supplier to UC at the f.o.b. point shown, or as otherwise
specified in the Agreement, subject to UC's right to reject upon inspection.
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D. Changes. Notwithstanding the terms in Article 34, Amendments, UC may make changes within the general scope of the Agreement in
drawings and specifications for specially manufactured Goods, place of delivery, method of shipment or packing of the Agreement by
giving notice to Supplier and subsequently confirming such changes in writing. If such changes affect the cost of or the time required
for performance of the Agreement, UC and Supplier will agree upon an equitable adjustment in the price and/or delivery terms.
Supplier may not make changes without UC's written approval. Any claim of Supplier for an adjustment under the Agreement must
be made in writing within thirty (30) days from the date Supplier receives notice of such change unless UC waives this condition in
writing. Nothing in the Agreement will excuse Supplier from proceeding with performance of the Agreement as changed hereunder.
Supplier may not alter or misbrand, within the meaning of the applicable Federal and State laws, the Goodsfurnished.
E. Forced, Convict and Indentured Labor. Supplier warrants that no foreign -made Goods furnished to UC pursuant to the Agreement will
be produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction. If UC determines that Supplier
knew or should have known that it was breaching this warranty, UC may, in addition to terminating the Agreement, remove Supplier
from consideration for UC contracts for a period not to exceed one year. This warranty is in addition to any applicable warranties in
Articles 6 and 11.
F. Export Control. Supplier agrees to provide UC (the contact listed on the Purchase Order) with written notification that identifies the
export -controlled Goods and such Goods' export classification if any of the Goods is export -controlled under the International Traffic
in Arms Regulations (ITAR) (22 CFR §§ 120-130), the Export Administration Regulations (15 CFR §§ 730-774) 500 or 600 series, or
controlled on a military strategic goods list. Supplier agrees to provide UC (the contact listed on the Purchase Order) with written
notification if Supplier will be providing information necessary for the operation, installation (including on -site installation),
maintenance (checking), repair, overhaul, and refurbishing of the Goods that is beyond a standard user manual (i.e. "Use" technology
as defined under the EAR 15 CFR § 772.1), or 'Technical Data" (as defined under the ITAR 22 CFR § 120.10).
ARTICLE 18 — CONFLICT OF INTEREST
Supplier affirms that, to the best of Supplier's knowledge, no UC employee who has participated in UC's decision -making concerning the
Agreement has an "economic interest" in the Agreement or Supplier. A UC employee's "economic interest" means:
A. An investment worth $2,000 or more in Supplier or its affiliate;
B. A position as director, officer, partner, trustee, employee or manager of Supplier or its affiliate;
C. Receipt during the past 12 months of $500 in income or $440 in gifts from Supplier or its affiliate; or
D. A personal financial benefit from the Agreement in the amount of $250 or more.
In the event of a change in these economic interests, Supplier will provide written notice to UC within thirty (30) days after such change,
noting such changes. Supplier will not be in a reporting relationship to a UC employee who is a near relative, nor will a near relative be in a
decision making position with respect to Supplier.
ARTICLE 19 —AUDIT REQUIREMENTS
See section 23 of UC Statement of Work.
ARTICLE 20 —PROHIBITION ON UNAUTHORIZED USE OR DISCLOSURE OF INSTITUTIONAL INFORMATION
A. Prohibition on Access, Use and Disclosure of Institutional Information. Supplier will not access, use or disclose Institutional Information,
other than to carry out the purposes for which UC disclosed the Institutional Information to Supplier, except as required by applicable
law, or as otherwise authorized in writing by UC prior to Supplier's disclosure. Supplier shall have the limited right to disclose
Institutional Information to Supplier's employees provided that: (i) Supplier shall disclose only such Institutional Information as is
necessary for the Supplier to perform its obligations under this Agreement, and (ii) Supplier informs such employees of the
obligations governing the access, use and disclosure of Institutional Information prior to Supplier's disclosure. Supplier shall be liable
for any breach of this Agreement by its employees. For avoidance of doubt, this provision prohibits Supplier from using for its own
benefit Institutional Information and any information derived therefrom. For the avoidance of doubt, the sale of Institutional
Information is expressly prohibited.
B. Compliance with Applicable Laws and Industry Best Practices. Supplier agrees to comply with all applicable state, federal, and foreign
laws, as well as industry best practices, governing the collection, access, use, disclosure, safeguarding and destruction of Institutional
Information. Supplier agrees to protect the privacy and security of Institutional Information according to all applicable laws and
industry best practices, and no less rigorously than it protects its own information, but in no case less than reasonable care.
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C. Confidential Institutional Information. Supplier agreesto hold UC's Confidential Institutional Information, and any information derived
therefrom, in strictconfidence. Confidential Institutional Information shall be defined asany l nstitutional Information which is (i) marked
as "Confidential" at the time of disclosure; (ii) if disclosed orally, identified at the time of such oral disclosure as confidential, and
reduced to writing as "Confidential" within thirty (30) days of such oral disclosure; and (iii) if not marked as "Confidential," information
that would be considered by a reasonable person in the relevant field to be confidential given its content and the circumstances of its
disclosure. Confidential Information will not be considered confidential to the extent that: (i) Supplier can demonstrate by written
records was known to Supplier prior to the effective date of the Agreement; (ii) is currently in, or in the future enters, the public domain
other than through a breach of the Agreement or through other acts or omissions of Supplier; (iii) is obtained lawfullyfrom a third party;
or (iv) is disclosed under the California Public Records Act or legal process. For the avoidance of doubt, as applicable to Supplier's
Services, Confidential Institutional Information may include any information that identifies or is capable of identifying a specific
individual, including but not limited to:
1. Personally, identifiable information,
2. Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 (HI PAA) and the HIPAA
regulations (including, but not limited to 45 C.F.R. §160.103),
3. Medical information as defined by California Civil Code §56.05,
4. Cardholder data,
5. Student records, or
6. Individual financial information that is subject to laws restricting the use and disclosure of such information, including but not
limited to:
a. Article 1, Section 1 of the California Constitution; the California Information Practices Act (Civil Code § 1798 etseq.);
b. The federal Gramm -Leach -Bliley Act (15 U.S.C. §§6801(b) and 6805(b)(2));
c. The federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g);
d. The federal Fair and Accurate Credit Transactions Act (15 U.S.C. § 1601 et seq.);
e. The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq), and
f. Applicable international privacy laws, including, but not limited to the General Data Protection Regulation.
D. Required Disclosures of Institutional Information. If Supplier is required by a court of competent jurisdiction or an administrative body
to disclose Institutional Information, Supplier will notify UC in writing immediately upon receiving notice of such requirement and prior
to any such disclosure (unless Supplier is prohibited by law from doing so), to give UC an opportunity to oppose or otherwise respond
to such disclosure. To the extent Supplier still required to disclose Institutional Information, Supplier will furnish only that portion that
is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be afforded to
any Confidential Institutional Information.
E. No Offshoring. Supplier's transmission, transportation or storage of Institutional Information outside the United States, or access of
Institutional Information from outside the United States, is prohibited except with prior written authorization by UC.
F. Conflict in Terms. UC's Appendix — Data Security, Appendix — BAA, and/or Appendix GDPR will control in the event that one or more
appendices is incorporated into the Agreement and conflicts with the provisions of this Article.
G. Acknowledgement. Supplier acknowledges that remedies at law would be inadequate to protect UC against any actual or threatened
breach of this Section by Supplier, and, without prejudice to any other rights and remedies otherwise available to UC, Supplier agrees
to the granting of injunctive relief in UC's favor without proof of actual damages.
ARTICLE 21— UC WHISTLEBLOWER POLICY
UC is committed to conducting its affairs in compliance with the law, and has established a process for reporting and investigating suspected
improper governmental activities. Please visit http://www.ucop.edu/uc-whistleblower/ for more information.
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ARTICLE 22 — SUSTAINABLE PROCUREMENT GUIDELINES
Supplier will conduct business using environmentally, socially, and economically sustainable products and services (defined as products
and services with a lesser or reduced effect on human health and the environment, and which generate benefits to the University as well
as to society and the economy, while remaining within the carrying capacity of the environment), to the maximum possible extent
consistent with the Agreement, and with the University of California Sustainable Practices Policy (https://policy.ucop.edu/doc/3100155)
and the University of California Sustainable Procurement Guidelines:
(https://www.ucop.edu/procurement-services/ files/sustainableprocurementguidelines.pdf).
In accordance with the University of California Sustainable Practices Policy, Supplier will adhere to the following requirements and
standards, as applicable. Supplier acknowledges that failure to comply with any of the sustainability standards and requirements in the
Agreement will constitute a material breach of the Agreement and UC will have the right to terminate the Agreement without damage,
penalty, cost or further obligation.
A. Sustainability Marketing Standards. Supplier sustainability related claims, where applicable, must meet UC recognized certifications
and standards set forth in the UC Sustainable Procurement Guidelines and/or meet the standards of Federal Trade Commission's (FTC)
Green Guides.
B. Electronic Transfer of Supplier Information. Suppliers, when interacting with the UC, shall be prohibited from providing hard copies of
presentations, marketing material, or other informational materials. Suppliers will be required to present all information in electronic
format that is easily transferable to UC staff. Materials may be provided in hard copy or physical format if specifically required or
requested by a UC representative.
C. Packaging Requirements. All packaging must be compliant with the Toxics in Packaging Prevention Act (AB 455) and must meet all
additional standards and requirements set forth in the UC Sustainable Practices Policy. In addition, UC requires that all packaging meet
at least one of the criteria listed below:
1. Intentionally Deleted;
2. Uses reusable packaging (e.g. totes reused by delivery service for next delivery);
3. Uses innovative packaging that reduces the weight of packaging, reduces packaging waste, or utilizes packaging that is a
component of the product;
4. Maximizes recycled content and/or meets or exceeds the minimum post -consumer content level for packaging in the U.S.
Environmental Protection Agency Comprehensive Procurement Guidelines;
5. Uses locally recyclable or certified compostable material.
D. Foodservice Foam Ban. As of 2018, the University no longer allows packaging foam or expanded polystyrene (EPS) for takeaway
containers or other food service items, in any University -owned or -operated food service facility.
E. Product Packaging Foam Ban. Beginning January 1st, 2020, the University will prohibit all contracted and non -contracted suppliers
from selling or distributing packaging foam (other than that utilized for laboratory supply or medical packaging) to UC campuses.
Packaging foam is defined as any open or closed cell, solidified, polymeric foam used for cushioning or packaging, including but not
limited to: low -density polyethylene foam, polypropylene foam, polystyrene foam (i.e. expanded polystyrene (EPS)), polyurethane
foam, polyethylene foam, polyvinyl chloride (PVC) foam, and microcellular foam. Not included in this ban are easily biodegradable,
plant -based foams such as those derived from corn or mushrooms.
F. E -Waste Recycling Requirements. All recyclers of UC electronic equipment must be e -Steward certified by the Basel Action Network
(BAN).
G. Hosted and Punch -out Catalog Requirements. Suppliers enabled with eProcurement hosted catalog functionality must clearly identify
products with UC-recognized certifications, as defined by the UC Sustainable Procurement Guidelines, in both hosted and punch -out
catalog e -procurement environments. Upon reasonable request, Supplier can provide a data file of product attributes to assist in
creating customized icons for clear identification of UC-recognized certifications.
ARTICLE 23— PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA) EMPLOYER SHARED RESPONSIBILITY
If the Services involve Supplier furnishing UC with temporary or supplementary staffing, Supplier warrants that:
A. If Supplier is an Applicable Large Employer (as defined under Treasury Regulation Section 54.4980H -1(a)(4)):
1. Supplier offers health coverage to its full-time employees who are performing Services for UC;
2. Supplier's cost of enrolling such employees in Supplier's health plan is factored into the fees for the Services; and
3. The fees for the Services are higher than what the Services would cost if Supplier did not offer health coverage to such full-time
employees.
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B. If Supplier is not an Applicable Large Employer (as defined above):
1. Supplier offers group health coverage to its full-time employees who are performing Services for UC and such coverage is
considered Minimum Essential Coverage (as defined under Treasury Regulation Section 1-5000A-2) and is Affordable (as
defined under Treasury Regulation Section 54.4980H -5(e)); or
2. Supplier's full-time employees who are performing services for UC have individual coverage and such coverage satisfies the
PPACA requirements for mandated individual coverage.
Supplier acknowledges that UC is relying on these warranties to ensure UC's compliance with the PPACA Employer Shared Responsibility
provision.
ARTICLE 24 - PREVAILING WAGES
Unless UC notifies Supplier that the Services are not subject to prevailing wage requirements, Supplier will comply, and will ensure that all
sub -suppliers comply, with California prevailing wage provisions, including but not limited to those set forth in Labor Code sections 1770,
1771, 1771.1, 1772, 1773, 1773.1, 1774, 1775, 1776, 1777.5, and 1777.6. For purposes of the Agreement, the term "sub -supplier" means
a person or firm, of all tiers, that has a contract with Supplier or with a sub -supplier to provide a portion of the Services. The term sub -
supplier will not include suppliers, manufacturers, or distributors. Specifically, and not by way of limitation, if apprenticable occupations
are involved in providing the Services, Supplier will be responsible for ensuring that Supplier and any sub -suppliers comply with Labor Code
Section 1777.5. Supplier and sub -supplier may not provide the Services unless currently registered and qualified to perform public work
pursuantto Labor Code Section 1725.5 and 1771.1. Notwithstanding the foregoing provisions, Supplier will be solely responsible for tracking
and ensuring proper payment of prevailing wages regardless if Services are partially or wholly subject to prevailing wage requirements. In
every instance, Supplier will pay not less than the UC Fair Wage (defined as $13 per hour as of 10/1/15, $14 per hour as of 10/1/16, and
$15 per hour as of 10/1/17) for Services being performed at a UC Location (defined as any location owned or leased by UC).
The California Department of Industrial Relations (DIR) has ascertained the general prevailing per diem wage rates in the locality in which
the Services are to be provided for each craft, classification, or type of worker required to provide the Services. A copy of the general
prevailing per diem wage rates will be on file at each UC Location's procurement office, and will be made available to any interested party
upon request. Supplier will post at any job site:
A. Notice of the general prevailing per diem wage rates, and
B. Any other notices required by DIR rule or regulation.
By this reference, such notices are made part of the Agreement. Supplier will pay not less than the prevailing wage rates, as specified in
the schedule and any amendments thereto, to all workers employed by Supplier in providing the Services. Supplier will cause all
subcontracts to include the provision that all sub -suppliers will pay not less than the prevailing rates to all workers employed by such sub -
suppliers in providing the Services. The Services are subject to compliance monitoring and enforcement by the DIR. Supplier will forfeit, as
a penalty, not more than $200 for each calendar day or portion thereof for each worker that is paid less than the prevailing rates as
determined by the DIR for the work or craft in which the worker is employed for any portion of the Services provided by Supplier or any
sub -supplier. The amount of this penalty will be determined pursuant to applicable law. Such forfeiture amounts may be deducted from
the amounts due under the Agreement. If there are insufficient funds remaining in the amounts due under the Agreement, Supplier will be
liable for any outstanding amount remaining due. Supplier will also pay to any worker who was paid less than the prevailing wage rate for
the work or craft for which the worker was employed for any portion of the Services, for each day, or portion thereof, for which the worker
was paid less than the specified prevailing per diem wage rate, an amount equal to the difference between the specified prevailing per diem
wage rate and the amount which was paid to the worker. Review of any civil wage and penalty assessment will be made pursuant to California
Labor Code section 1742.
ARTICLE 25 — FAIR WAGE/FAIR WORK
If the Agreement is for Services that will be performed at one or more UC Locations, does not solely involve furnishing Goods, and are not
subject to extramural awards containing sponsor -mandated terms and conditions, Supplier warrants that it is in compliance with applicable
federal, state and local working conditions requirements, including but not limited to those set forth in Articles 11, 12 and 14 herein, and
that Supplier pays its employees performing the Services no less than the UC Fair Wage. Supplier agrees UC may conduct such UC Fair
Wage/Fair Work interim compliance audits as UC reasonably requests, as determined in UC's sole discretion. Supplier agrees to post UC
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Fair Wage/Fair Work notices, in the form supplied by UC, in public areas (such as break rooms and lunch rooms) frequented by Supplier
employees who perform Services.
For Services rendered (actual spend) not subject to prevailing wage requirements in excess of $100,000 in a year (under the Agreement or
any combination of agreements for the same service), Supplier will (i) at Supplier's expense, provide an annual independent verification
(https://www.ucop.edu/procurement-services/far-suppliers/fwfw-resources-suppliers.html) performed by a licensed public accounting
firm (independent accountant) or the Supplier's independent internal audit department (http://na.theiia.org/standards-
guidance/topics/Pages/Independence-and-Obiectivity.aspx) in compliance with UC's required verification standards and procedures
(https://www.ucop.edu/procurement-services/far-suppliers/fwfw-resources-suppliers.html), concerning Supplier's compliance with this
provision, and (ii) ensure that in the case of a UC interim audit, its independent accountant/independent internal auditor makes available
to UC its UC Fair Wage/Fair Work work papers for the most recent verification period. Supplier agrees to provide UC with a UC Fair
Wage/Fair Work verification annually, in a form acceptable to UC, no later than ninety days after the end of the 12 -month period in which
$100,000 in spend is reached.
The Fair Wage Fair Work annual independent verification requirement does not extend to contracts for professional services or consulting
for which pre -certification has been provided to UC (https://www.ucop.edu/procurement-services/for-suppliers/fwfw-resources-
suppliers.html). Please see the UC Procurement/Supply Chain Management Policy BUS -43 (https://www.ucop.edu/procurement-
services/policies-farms/business-and-finance/index.html) for the definition of professional services and consulting.
ARTICLE 26 — MEDICAL DEVICES
This Article applies when the Goods and/or Services involve UC purchasing or leasing one or more medical devices from Supplier, or when
Supplier uses one or more medical devices in providing Goods and/or Services to UC.
Medical Device as used herein will have the meaning provided by the U.S. Food and Drug Administration ("FDA") and means an instrument,
apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including a component part, or
accessory which is: (i) recognized in the official National Formulary, or the United States Pharmacopoeia, or any supplement to them; (ii)
intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in humans
or other animals, or (iii) intended to affect the structure or any function of the body of humans or other animals, and which does not achieve
any of its primary intended purposes through chemical action within or on the body of humans or other animals and which is not dependent
upon being metabolized for the achievement of any of its primary intended purposes.
Supplier warrants that prior to UC's purchase or lease of any Medical Device or Supplier's use of any Medical Device in providing Goods
and/or Services hereunder, Supplier will: (i) perform security testing and validation for each such Goods and/or Services or Medical Device,
as applicable; (ii) perform security scans to detect malware on any software embedded within any Goods and/or Services or Medical Device,
as applicable, in order to verify that the software does not contain any known malware; (iii) conduct a vulnerability scan encompassing all
ports and fuzz testing; and (iv) provide UC with reports for (i) — (iii). Supplier warrants that any Good or Medical Device is compliant with
FDA's most current guidance or regulation for the quality system related to the cybersecurity and the Management of Cybersecurity in
Medical Devices, and that Supplier will maintain compliance with any updates to such guidance or regulations.
Throughout Supplier's performance of this Agreement, Supplier will provide UC with reasonably up-to-date patches, firmware and security
updates for any Medical Device provided to UC, and any other Medical Device used in the course of providing Services, as applicable. All
such patches and other security updates will be made available to UC within thirty (30) days of its commercial release or as otherwise
recommended by Supplier or Supplier's sub -supplier, whichever is earlier.
Supplier warrants that all software and installation media not specifically required for any Medical Device used by Supplier or Goods and/or
Services delivered to UC under this Agreement as well as files, scripts, messaging services and data will be removed from all such Goods
and/or Services or Medical Device following installation, and that all hardware ports and drivers not required for use or operation of such
Goods and/or Services or Medical Device will be disabled at time of installation. In addition, Medical Devices must be configured so that
only Supplier -approved applications will run on such Medical Devices.
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Supplier agrees that UC may take any and all actions that it, in its sole discretion, deems necessary to address, mitigate and/or rectify any
real or potential security threat, and that no such action, to the extent such action does not compromise device certification, will impact,
limit, reduce or negate Supplier's warranties or any of Supplier's other obligations hereunder.
Supplier warrants that any Medical Device provided to UC, and any other Medical Device used in the course of providing such Goods and/or
Services, meet and comply with all cyber-security guidance and similar standards promulgated by the FDA and any other applicable
regulatory body.
If the Goods and/or Services entail provision or use of a Medical Device, Supplier will provide UC with a completed Manufacturer Disclosure
Statement for Medical Device Security (MDS2) form for each such Medical Device before UC is obligated to purchase or lease such Medical
Device or prior to Supplier's use of such device in its performance of Services. If Supplier provides an MDS2 form to UC concurrently with
its provision of Goods and/or Services, UC will have a reasonable period of time to review such MDS2 form, and if the MDS2 form is
unacceptable to UC, then UC in its sole discretion may return the Goods or terminate the Agreement with no further obligation to Supplier.
ARTICLE 27 — FORCE MAJEURE
Where a failure to perform under this Agreement is caused by a Force Majeure event, Supplier shall have the right to either: (i) terminate,
by written notice to UC, all or part of the Order without liability or (ii) extend the date of delivery or performance for a period equal to the
duration of the delay. "Force Majeure" means fires; strikes; riots; pandemic or epidemic; embargoes; explosions; earthquakes; floods; wars;
acts of terrorism; the elements; labor disputes; shortages of or inability to secure materials or transportation facilities; regulatory acts of
government; or other causes or events beyond a party's control. Neither Party will be liable for delays due to causes beyond the Party's
control (including, but not restricted to, war, civil disturbances, earthquakes, fires, floods, epidemics, quarantine restrictions, freight
embargoes, and unusually severe weather).
ARTICLE 28 —ASSIGNMENT AND SUBCONTRACTING
Except as to any payment due hereunder, Supplier may not assign or subcontract the Agreement without UC's written consent. In case
such consent is given, the assignee or subcontractor will be subject to all of the terms of the Agreement.
ARTICLE 29 — NO THIRD -PARTY RIGHTS
Nothing in the Agreement, express or implied, is intended to make any person or entity that is not a signer to the Agreement a third -party
beneficiary of any right created by this Agreement or by operation of law.
ARTICLE 30 —OTHER APPLICABLE LAWS
Any provision required to be included in a contract of this type by any applicable and valid federal, state or local law, ordinance, rule or
regulations will be deemed to be incorporated herein.
ARTICLE 31— NOTICES
A Party must send any notice required to be given under the Agreement by overnight delivery or by certified mail with return receipt
requested, to the other Party's representative at the address specified by such Party.
ARTICLE 32 — SEVERABILITY
If a provision of the Agreement becomes, or is determined to be, illegal, invalid, or unenforceable, that will not affect the legality, validity
or enforceability of any other provision of the Agreement or of any portion of the invalidated provision that remains legal, valid, or
enforceable.
ARTICLE 33 — WAIVER
Waiver or non -enforcement by either Party of a provision of the Agreement will not constitute a waiver or non -enforcement of any other
provision or of any subsequent breach of the same or similar provision.
ARTICLE 34 —AMENDMENTS
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The Parties may make changes in the Goods and/or Services or otherwise amend the Agreement, but only by a writing signed by both
Parties' authorized representatives. In the event there is a Material Change to the Agreement, the parties agree to meet and confer in good
faith in order to modify the terms of the Agreement. A Material Change as used herein refersto:
A. A change to the scope of Goods and/or Services to be provided by Supplier, as agreed to by UC;
B. Achange in the Institutional Information Supplier is required to create, receive, maintain or transmit in performance oftheAgreement,
such that the Protection Level Classification of such Institutional Information changes;
C. Changes in the status of the parties;
D. Changes in flow down terms from external parties; and
E. Changes in law or regulation applicable to this Agreement.
Each party shall notify the other party upon the occurrence of a Material Change.
ARTICLE 35 —GOVERNING LAW AND VENUE
California law will control the Agreement and any document to which it is appended. The exclusive jurisdiction and venue for any and all
actions arising out of or brought under the Agreement is in a state court of competent jurisdiction, situated in the county in the State of
California in which the UC Location is located or, where the procurement covers more than one UC Location, the exclusive venue is Alameda
County, California.
ARTICLE 36 —ASSISTANCE IN LITIGATION OR ADMINISTRATIVE PROCEEDINGS
Supplier will make itself and its employees, subcontractors, or agents assisting Supplier in the performance of its obligations reasonably
available to UC at no cost to UC to testify as witnesses, or otherwise, in the event of investigations, or proceedings against UC, its directors,
officers, agents, or employees relating to the Goods or Services.
ARTICLE 37 — SUPPLIER TERMS
Any additional terms that Supplier includes in an order form or similar document will be of no force and effect, unless UC expressly agrees
in writing to such terms.
ARTICLE 38 — SURVIVAL CLAUSE
Upon expiration or termination of the Agreement, the following provisions will survive: WARRANTIES; INTELLECTUAL PROPERTY,
COPYRIGHT, PATENTS, AND DATA RIGHTS; INDEMNITY AND LIABILITY; USE OF UC NAMES AND TRADEMARKS; LIABILITY FOR UC-FURNISHED
PROPERTY; COOPERATION; TERMSAPPLICABLE TO THE FURNISHING OF GOODS; AUDIT REQUIREMENTS; PROHIBITION ON UNAUTHORIZED
USE OR DISCLOSURE OF INSTITUTIONAL INFORMATION; GOVERNING LAW AND VENUE, and, to the extent incorporated into the Agreement,
the terms of the APPENDIX —DATA SECURITY, APPENDIX—BAA, and/or APPENDIX-GDPR.
ARTICLE 39 —CONTRACTING FOR COVERED SERVICES
Covered Services, for the purpose of this Agreement, are defined as work customarily performed by bargaining unit employees at the
University in the categories of services described in Regents Policy 5402, and American Federation of State, County, and Municipal
Employees (AFSCME) Collective Bargaining Agreement Article 5. Covered Services include, but are not necessarily limited to, the following
services: cleaning, custodial, janitorial, or housekeeping services; food services; laundry services; grounds keeping; building maintenance
(excluding skilled crafts); transportation and parking services; and security services.
Unless UC notifies Supplier that the Services are not Covered Services, Supplier warrants that it is in compliance with applicable federal,
state and local working conditions requirements, including but not limited to those set forth in in other Articles of the Agreement. In
accordance with Regents Policy 5402 and AFSCME Collective Bargaining Agreement Article 5, Supplier also warrants that it pays its
employees performing the Covered Services at UC locations the equivalent value of the wages and benefits — as determined in the Wage
and Benefit Parity Appendix — received by UC employees providing similar services at the same, or nearest UC location.
Supplier agrees UC may conduct such compliance audits as UC reasonably requests, and determined at UC's sole discretion. Supplier agrees
to post UC Contracting for Covered Services notices, in the template supplied by UC, in a prominent and accessible place (such as break
rooms and lunch rooms) where it may be easily seen by workers who perform Covered Services. The term "Supplier" includes Supplier and
its Sub -Suppliers at any tier. Supplier also agrees to:
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Terms and Conditions of Purchase
Fisher Scientific, Agreement 2021002889
1114 DV Z. i4.S ire
CAUFORI C
(a) upon UC's request, provide verification of an independent audit performed by Supplier's independent auditor or independent
internal audit department (http://na.theiia.org/standards-guidance/topics/Pages/Independence-and-Obiectivitv.aspx) and at
Supplier's expense; and
(b) ensure that, in the case of a UC interim audit, Supplier's auditor makes available to UC its Contracting for Covered Services work
papers for the most recently audited time period. Supplier agrees to provide UC requested verification, in a form acceptable to
UC, no later than ninety days after receiving UC's request.
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Revised 2/27/2020
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FEMA CONTRACT ADDENDUM'
This Agreement and/or Purchase Order is in response to the COVID-19 pandemic, and is eligible for
FEMA reimbursement under section 501 (b) of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5207 (the "Stafford Act"). Accordingly, the following additional terms
apply to this Agreement and/or Purchase Order. To the extent of any conflict between the terms set
forth in this Addendum and other terms set forth in the Agreement and/or Purchase Order, the terms of
this Addendum shall control.
1. Remedies. UC may by written notice terminate the Agreement for Supplier's breach of the
Agreement, in whole or in part, at any time, if Supplier refuses or fails to comply with the provisions
of the Agreement, or so fails to make progress as to endanger performance and does not cure such
failure within five (5) business days, or fails to supply the Goods and/or Services within the time
specified or any written extension thereof. In such event, UC may purchase or otherwise secure Goods
and/or Services and, except as otherwise provided herein.
2. Termination for Cause or Convenience. As specified in the termination notice, UC will pay Supplier as
full compensation the pro rata Agreement price for performance through the later of the date that (i)
UC provided Supplier with notice of termination or (ii) Supplier's provision of Goods and/or Services
will terminate.
1. Clean Air Act and Federal Water Pollution Act. Supplier agrees to comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the
Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported
to the Federal awarding agency and the Regional Office of the Environmental Protection Agency
(EPA).
2. Suspension and Debarment.
a. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As
such, the Supplier is required to verify that none of the Supplier's principals (defined at 2 C.F.R. §
180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. §
180.940) or disqualified (defined at 2 C.F.R. § 180.935).
b. The Supplier must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, and
must include a requirement to comply with these regulations in any lower tier covered
transaction it enters into.
c. This certification is a material representation of fact relied upon by (insert name of
recipient/subrecipient/applicant). If it is later determined that the Supplier did not comply with
2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to
UC, the Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment.
d. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C
and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any
'This template applies in the event UC seeks federal reimbursement from FEMA for procurements. It assumes that
none of the terms described in this Alert are incorporated in the underlying Agreement. Refer to the body of the
Alert for guidance on inclusion of each term.
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contract that may arise from this offer. The bidder or proposer further agrees to include a
provision requiring such compliance in its lower tier covered transactions.
3. Byrd Anti -Lobbying Amendment. Suppliers who apply or bid for an award of $100,000 or more
shall file the required certification set forth in Appendix A to 44 C.F.R. Part 18. Each tier certifies
to the tier above that it will not and has not used Federal appropriated funds to pay any person
or organization for influencing or attempting to influence an officer or employee of any agency,
a Member of Congress, officer or employee of Congress, or an employee of a Member of
Congress in connection with obtaining any Federal contract, grant, or any other award covered
by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non -Federal funds that takes
place in connection with obtaining any Federal award. Such disclosures are forwarded from tier
to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
4. Procurement of Recovered Materials. (i) In the performance of this contract, Supplier shall make
maximum use of products containing recovered materials that are EPA -designated items unless the
product cannot be acquired competitively within a timeframe providing for compliance with the
contract performance schedule; meeting contract performance requirements; or at a reasonable
price. (ii) Information about this requirement, along with the list of EPA designated items, is
available at EPA's Comprehensive Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensiveprocurement-guideline-cpg-program. (iii) Supplier also
agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal
Act.
5. Access to Records. The Agreement, and any pertinent records involving transactions which are
directly pertinent to the provision of FEMA funds under this Agreement, is subject to the
examination and audit of the Auditor General of the State of California or Comptroller General
of the United States or designated Federal authority for a period of up to (5) years after final
payment under the Agreement. UC, and if the underlying grant, cooperative agreement or
federal contract so provides, the other contracting Party or grantor (and if that be the United
States or an instrumentality thereof, then the Comptroller General of the United States) will
have access to and the right to examine Supplier's pertinent books, documents, papers, and
records involving transactions and work related to the Agreement until the expiration of five
(5)years after final payment under the Agreement. The examination and audit will be confined
to those matters connected with the performance of the Agreement, including the costs of
administering the Agreement. In the event that UC wishes to engage a third party auditor to
perform any audits under this agreement or related to the RFP, such third party auditor must
execute a confidentiality agreement with Supplier in a form acceptable to Supplier and shall be the
responsibility of the Supplier to obtain such documentation directly with the third party.
6. Changes. The Parties may make changes in the Goods and/or Services or otherwise amend the
Agreement as mutually agreed to, but only by a writing signed by both Parties' authorized
representatives. In the event there is a Material Change to the Agreement, the parties agree to
meet and confer in good faith in order to modify the terms of the Agreement. A Material Change as
used herein refers to:
a. A change to the scope of Goods and/or Services to be provided by Supplier, as agreed to by UC;
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b. A change in the Institutional Information Supplier is required to create, receive, maintain or
transmit in performance of the Agreement, such that the Protection Level Classification of such
Institutional Information changes;
c. Changes in the status of the parties;
d. Changes in flow down terms from external parties; and
e. Changes in law or regulation applicable to this Agreement.
Each party shall notify the other party in writing within a reasonable period, upon the occurrence of
a Material Change.
7. DHS Seal, Logo, and Flags. The Supplier shall not use the DHS seal(s), logos, crests, or reproductions
of flags or likenesses of DHS agency officials without specific FEMA pre -approval.
8. Compliance with Federal Law, Regulations, and Executive Orders. Supplier acknowledges that FEMA
financial assistance will be used to fund all or a portion of the contract. Supplier will comply with all
applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives.
9. No Obligation by Federal Government. The Federal Government is not a party to this contract and is
not subject to any obligations or liabilities to UC, Supplier, or any other party pertaining to any
matter resulting from the contract.
10. Program Fraud and False or Fraudulent Statements or Related Acts. The Supplier acknowledges that
31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the
Supplier's actions pertaining to this contract.
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UNIVERSITY
OF
CALIFORNIA
SECTION 1- GENERAL TERMS
SECTION 2 - DEFINITIONS
SECTION 3 — RIGHT TO USE
Attachment D - Electronic Commerce
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SECTION 4- e -PROCUREMENT SYSTEM RESPONSIBILITIES; MAINTENANCE OF CATALOG(S); LICENSE
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SECTION 5 — USER SUPPORT
SECTION 6 — PROPRIETARY RIGHTS
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(i)
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SECTION 7 — MULTIPLE SUPPLIERS
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SECTION 8 — WARRANTY DISCLAIMER
SECTION 9 — DISPUTES AND CHANGES IN THE SERVICES
SECTION 10 — ADDITIONAL CONTRACTUAL TERMS
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Buyer:
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