THE PURCHASE OF ANY PRODUCTS BASED ON AN ORDER ISSUED BY CUSTOMER IS SUBJECT TO AND CONDITIONAL UPON VENDOR’S ACCEPTANCE OF THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY VENDOR (INCLUDING WITHOUT LIMITATION ANY TERMS CONTAINED IN OR ATTACHED TO VENDOR’S QUOTE, ORDER CONFIRMATION, OR INVOICE) ARE EXPRESSLY OBJECTED TO BY AND WILL NOT BE BINDING UPON CUSTOMER, UNLESS SPECIFICALLY APPROVED IN WRITING BY CUSTOMER.
These Terms are deemed incorporated by reference into each Order, but to the extent there are any conflicts between the Order itself and the Terms below, the Order itself shall control.
A “Business Group” of Customer means any (i) subsidiary wholly-owned by Customer, (ii) limited liability company, partnership, joint venture, or other entity in which Customer has an ownership interest, or (iii) licensed clinical laboratory or hospital laboratory, in each case ((i)-(iii)), managed by Customer. For purposes of these Terms, “managed by Customer” means that Customer has responsibility for the day to day operations of the laboratory including, but not limited to, authority to direct and control purchases of instrumentation, reagents, and associated products to which the Order relates.
1. Purchase Order Acceptance, Cancellations, and Changes. Vendor shall promptly provide Customer with notice of Vendor’s acceptance or rejection of each Order. An Order may be accepted by Vendor by any reasonable indication of acceptance. Vendor agrees to supply Products to Customer in accordance with the terms of each accepted Order. Customer may cancel all or any portion of an Order for non-custom Products at any time prior to shipment by Vendor. Customer may reschedule delivery of the Products under an Order in whole or in part at no additional charge, provided notice is given prior to the shipment date. Vendor agrees to use reasonable efforts to accommodate any changes to a particular Order requested by Customer.
2. Shipping; Delivery; Title; Risk of Loss; Shelf Life.
a. Shipping. Vendor shall ship Products to the Customer’s location indicated in the Order. Shipment shall be made Duty Delivery Paid. Vendor shall bear all shipping cost(s) to deliver Products to Customer at Customer’s location. No additional shipping costs, handling charges or associated fees will be charged to Customer (such as expedited shipment, special handling, refrigerated shipment, and/or hazardous materials/DOT shipment fees) unless expressly agreed upon by Customer. Vendor acknowledges and agrees that in fulfilling each purchase order it shall be the exporter of record and U.S. Principal Party in Interest as set forth in Section 27.
b. Delivery. Customer will notify Vendor if Customer has any specific delivery requirements, and Vendor agrees to comply with such delivery requirements. Vendor acknowledges that time is of the essence with respect to delivery of each shipment of Products on or before the delivery date set forth in each accepted Order. Without limiting Customer’s rights and remedies, if, for any reason, Vendor cannot or will not deliver any Products on or before the requested delivery date, then Vendor shall immediately notify Customer and Customer may, in its discretion, terminate the related Order without liability.
c. Title; Risk of Loss. Title shall pass to Customer upon Customer’s acceptance of Products at Customer’s location. Risk of loss of all Products shall remain with Vendor until receipt and acceptance of the Products by Customer at Customer’s location.
d. Required Shelf Life. At the time of delivery, all Products supplied under the Order shall have at least nine (9) months remaining shelf life if the original shelf life indicated on the package or associated with the Product is one (1) year or more, and, at least six (6) months remaining shelf life if the original shelf life on the package or associated with the Product is less than one (1) year.
3. Returns. Customer may return non-custom Products within the warranty period for any reason for a full refund (other than shipping charges), and no restocking charge will apply.
4. Product Recalls. In the event any Products are recalled by Vendor, the manufacturer or any governmental agency, Vendor shall reimburse Customer for all costs associated with such recall, including without limitation the cost to replace the recalled Products with equivalent products at the same price as the recalled Products, shipment costs, costs to validate any replacement products, reasonable associated labor costs and costs to re-run any tests performed using Products subject to a recall, and costs associated with generating and sending corrected reports. Vendor shall promptly notify Customer in writing if Vendor receives a warning letter from the Food and Drug Administration or other regulatory body during the period between its acceptance of the Order and two (2) years after delivery of all Products under the Order which relates to any Product sold under the Order.
5. Pricing; Invoicing; Payment.
a. Pricing. The total price for the Products supplied shall be the amount designated in the Order. Vendor hereby represents to Customer that the prices charged to Customer are no higher than the prices that have been charged by Vendor to any other customers purchasing similar quantities of the Products.
b. Submission of Invoice. All Vendor invoices must be submitted to Customer within ninety (90) days of the close of the applicable month in which Products were shipped to Customer. Customer shall have no obligation to pay for invoices submitted beyond this ninety (90) day period. If Vendor is unable to meet the e-commerce provisions of Section 6 below, invoices will be mailed to Customer at its address as reflected on the Order.
c. Payment. All invoices shall include a reference to Customer’s applicable Order number. Customer shall make payment net forty-five (45) days of the date of receipt of Vendor’s invoice. Customer is taxable based on the shipment destination and all applicable local/state taxes are the responsibility of Customer. In those states where Vendor collects local/state sales taxes, Vendor will add these taxes to the invoices and remit to the appropriate taxing authority. In those countries or states where Vendor collects sales tax, VAT or GST, Vendor will add the taxes to the invoice and remit to the appropriate taxing authority. In the event Vendor submits to Customer invoices at prices lower than those previously agreed to in the Order, then Customer’s sole responsibility shall be payment of the lesser of the invoice amount or the amount in the Order. Invoices shall be paid in the currency of the shipment destination (i.e. U.S. dollars for Products delivered to any U.S. destination and in the currency of the country of shipment destination for products delivered in countries outside the U.S.).
d. Early Invoice Payment. If Customer pays any invoice amount within fifteen (15) days of receipt of such invoice, an early payment discount will apply. The amount of the early payment discount will be two percent (2%) of the total amount of the invoice.
6. Electronic Transmission of Documents. Vendor and Customer acknowledge the efficiency of automated ordering, invoicing and payment. Both parties desire to automate certain operations for purchase and sale transactions (“Transactions”) by transmitting and receiving documents electronically (hereinafter called “Documents”) in substitution for conventional paper-based documents, and the parties agree to do so at their own, individual expense. Examples of Documents which may be transmitted include: Vendor Bulletins; Catalogues; Orders; Acknowledgments; Modifications to Orders; Ship Notices; Invoices; Schedule Changes; and Change Orders. For example, Vendor agrees to accept Orders from Customer’s ERP system. Any signed Document transmitted through e-commerce shall constitute an “original” when printed from electronic files or records established and maintained in the normal course of business. The parties further agree not to contest the validity or enforceability of signed Documents under the provisions of any applicable law relating to whether certain agreements are to be in writing and signed by the party to be bound thereby.
7. Inspection. All Products furnished under the Order will be subject to Customer’s inspection and approval within ninety (90) days of delivery, irrespective of payment date. Customer shall have a reasonable period of time to submit claims relating to count, weight, quantity, loss or damage to delivered Products.
8. Warranties. Vendor represents and warrants that all Products furnished by Vendor (i) will be free from defects in materials and workmanship and will be in full conformity with Vendor’s specifications; (ii) shall not be adulterated or misbranded within the meaning of the U.S. Food, Drug, and Cosmetic Act; (iii) will be fit for Customer’s intended use provided Vendor has reason to know of such use, (iv) will have clear and good title, free and clear from all liens, claims and encumbrances; (v) will comply with all applicable laws and regulations; and (vi) will be labeled and packaged in accordance with industry standards and any instructions provided by Customer. Vendor’s warranty with respect to clause (i) of the preceding sentence will continue (1) with respect to equipment, for the longer of Vendor’s specifications or twelve (12) months from delivery; or (2) until the expiration of the applicable shelf-life required under Section 2.d. hereof for consumables and other Products. Vendor hereby represents and warrants that the sale of any Products covered by these Terms, and the use of such Products (including without limitation the use of any process, patents or technology described in the labeling, package insert, manufacturer’s specifications, or instructions), does not and will not infringe or otherwise violate any patents or other intellectual property rights of any third parties. Vendor hereby represents and warrants that it shall (x) at all times, maintain all the consents necessary to carry out its obligations under these Terms; and (y) maintain adequate procedures designed to prevent the breach of any laws or regulations by its employees and agents.
9. Indemnification. Vendor agrees to defend, indemnify, and hold Customer (including its Business Groups) and its/their directors, officers, employees, agents, sponsors and customers (the “Customer Indemnitees”) wholly harmless from and against all damages, losses, liabilities, obligations, judgments, settlements, costs and expenses, including reasonable attorney fees incurred by any of the Customer Indemnitees arising from any claim, demand, lawsuit, or other action made or brought against any of the Customer Indemnitees by any third party that is caused by or attributable to (a) Vendor’s breach of these Terms (including without limitation any of its representations or warranties in these Terms), (b) the failure of a Product to function in accordance with the Product’s written specifications, (c) any negligence or willful misconduct of Vendor, (d) any infringement or violation of any third party patents or other intellectual property rights of any third parties based on the Products or Customer’s use of the Products (including without limitation the use of any process, patents or technology described in the labeling, package insert, manufacturer’s specifications, or instructions), or (e) any other liability resulting from Customer’s use of the Products. However, the foregoing rights to indemnity shall not apply to the extent that such claim results from Customer’s sole negligence or willful misconduct including, without limitation, the negligence of Customer’s employees, or from the modification of any Product of Vendor by a third party not within Vendor’s control or without Vendor’s permission. In the event of a lawsuit or other action in connection with which Customer is seeking indemnification from Vendor hereunder, Customer agrees to give timely notice of the lawsuit or action to Vendor and to cooperate with Vendor in the defense of the lawsuit or action (at Vendor’s expense).
10. Insurance. Vendor hereby represents that it has obtained, and Vendor agrees to continue to keep in force, until the delivery of all Products under the Order, at its sole cost and expense, a policy of commercial general liability insurance with bodily injury, death, and property damage limits of at least One Million U.S. Dollars ($1,000,000) per occurrence and Ten Million U.S. Dollars ($10,000,000) in the aggregate, including product and contractual liability coverage. In addition, Vendor will maintain any insurance required by applicable law. Vendor shall, upon request from Customer, provide a certificate of liability insurance as evidence that it has secured the insurance required herein. In the event that Vendor has “claims made” coverage, Vendor agrees that it shall either maintain continuous “claims made” coverage for a period of six (6) years after all Products under the Order have been delivered or secure a six (6) year “tail” policy.
11. Force Majeure. Neither party shall be liable for any delays in the performance of its obligations under the Order due to any act or cause beyond the reasonable control and without the fault of such party, including without limitation acts of God such as flood, tornado, earthquake; acts of government (i.e., civil injunctions or enacted statutes and regulations); or acts or events caused by third parties such as riot, strike, power outage or explosion; or the inability due to any of the aforementioned causes to obtain necessary labor or materials (a “Force Majeure Event”). A party experiencing a Force Majeure Event shall provide the other party with prompt written notice of such Force Majeure Event, and use commercially reasonable efforts to resolve any delay caused by such Force Majeure Event.
12. Confidentiality.
a. Definition. For the purpose of this Section 12, “Confidential Information” means the terms of each Order, any amounts payable under the Order, and all information (whether oral, written or in electronic or any other form) belonging to or relating to Customer, its business affairs or activities (including information concerning any trade secrets, intentions or business plans of Customer) which is marked or stated to be confidential or which due to its character or nature, a reasonable person in a like position and under like circumstances would treat as and/or reasonably believe to be confidential.
b. Restrictions. Vendor agrees that Vendor will not use any Confidential Information for any purpose other than for performance of its obligations under the Order, and Vendor will not disclose or otherwise make available any Confidential Information to any third party without the written consent of Customer. Vendor will treat Customer’s Confidential Information with the same degree of care as if it were its own proprietary information. All persons receiving Confidential Information on behalf of Vendor under the Order shall be subject to written obligations of confidentiality and non-use consistent with the obligations set forth herein. The restrictions on use and disclosure of Confidential Information set forth in this Section 12 shall become effective upon Vendor’s acceptance of the Order and remain in effect thereafter (1) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for so long as such Confidential Information retains its status as a trade secret, and (2) with respect to Confidential Information that does not rise to the level of a trade secret under applicable law, for a period of five (5) years following the delivery of all Products under the Order.
c. Exceptions. The obligations set out in this Section 12 shall not apply to Confidential Information that Vendor can reasonably demonstrate: (i) is or has become publicly known other than through breach of this Section 12; (ii) was in the possession of Vendor prior to disclosure by Customer; or (iii) was received by Vendor from an independent third party who is not subject to an obligation of confidentiality to Customer. The restrictions on disclosure also shall not apply to the extent the Confidential Information is required to be disclosed by a governmental authority, provided that Vendor gives Customer prompt written notice of the requirement and cooperates with any efforts of Customer to limit such disclosure.
d. Duty to Report. Vendor shall immediately notify Customer of any breach of its obligations under this Section 12, regardless of whether Vendor deems such breach to be immaterial.
e. Equitable and Injunctive Relief. Vendor acknowledges that its breach of this Section 12 may cause irreparable damage, and, therefore, Customer shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with any breach hereof.
f. HIPAA. Customer is a Covered Entity under the Health Insurance Portability and Accountability Act of 1996, as amended, and its accompanying regulations (“HIPAA”). As such, Customer is required to make reasonable efforts to limit as necessary the disclosure of Protected Health Information (“PHI”) as defined by HIPAA. To the extent that Vendor has access to such PHI while supplying Products or otherwise performing under the Order or complying with these Terms, Vendor will treat such PHI in accordance with the applicable Business Associate Addendum between the parties, including but not limited to the use of commercially reasonable safeguards to prevent the use or disclosure of PHI except as provided under the Order. Furthermore, Vendor will ensure that any subcontractor or third party that has access to PHI agrees to restrictions and conditions no less restrictive than apply to Vendor with respect to PHI.
13. Non-Exclusivity. Customer shall not be precluded from making purchases of the same or similar products from any other supplier.
14. Performance; Remedies.
a. Technical Problems. For purposes of the Order, “Technical Problems” means deficiencies related to quality, availability and/or shipment of Products, including without limitation inconsistent shipments, and Products that do not meet package insert claims or performance specifications as published in the manufacturers’ publications. In the event that Technical Problems are identified, Customer will notify Vendor of the problem by telephone or electronic communication, and Vendor will, within the course of five (5) days thereafter, develop an action plan to promptly correct the Technical Problem and deliver this, in writing, to Customer.
b. Remedies. In the event Vendor (i) supplies any defective or nonconforming Products hereunder (including without limitation damaged Products or Products not in compliance with the Order, product specifications, or any Product warranties hereunder), or (ii) fails to timely supply conforming Products hereunder, Customer may, at its option: (a) receive from Vendor a discount for such non-conforming Products (in an amount to be agreed upon by the parties); (b) terminate the Order or any part thereof; (c) reject and return (or destroy, at Vendor’s request) such Products and charge Vendor all costs and expenses related to the shipment and return; (d) cover and charge Vendor for any loss and costs incurred; or (e) require Vendor to replace or otherwise correct, without expense to Customer, any such Products. If Customer has already paid for the Product and Customer does not wish to receive a replacement Product, then Customer shall receive, at its option, either a full refund or credit against future purchases. If Customer requests a replacement Product, then Vendor shall send a replacement Product on an expedited basis at Vendor’s expense. No limit on time to return will apply to defective Products unless agreed by Customer in writing. All rights and remedies stated herein shall be in addition to any rights and remedies provided by law, and shall survive inspection, test, acceptance and payment.
15. Use of Name. Vendor acknowledges that Customer has a proprietary interest in its legal and business name and reputation. Therefore, Vendor agrees that it shall not use Customer’s name nor shall Vendor mention or describe an Order or its relationship with Customer in any press release, advertising, marketing, and promotional materials or other publications or materials without first obtaining the prior written approval of Customer.
16. Governing Law. Each Order shall be governed by the laws of the State of North Carolina, excluding application of its conflict of laws provisions. Vendor agrees that any action asserting a claim against Customer or any claim for which Vendor has agreed to indemnify Customer under the Order shall be brought exclusively in the state or federal court having jurisdiction over Alamance County, North Carolina and Vendor agrees to submit to the jurisdiction of said court. Notwithstanding the foregoing, proceedings may be brought by Customer in any court of competent jurisdiction for the purpose of: (i) Customer obtaining preliminary or permanent injunctive relief, or (ii) impleading, joining or adding Vendor as a third-party defendant in any legal action brought by a third party.
17. Change in Law or Regulation. Should either party reasonably conclude that any portion of the Order or these Terms is or may be in violation of any applicable law, including any changes to applicable law made after acceptance of the Order by federal, state or local authorities, or if any such change or proposed change would materially alter the amount or method of compensating Vendor for Products purchased by Customer, or would materially increase the cost of Vendor's performance hereunder, the parties agree to negotiate written modifications to the Order as may be necessary to establish compliance with such legal requirements and/or to reflect applicable changes in compensation necessitated by such legal requirements.
18. Audit. Vendor shall maintain accurate and complete records relating to its compliance with its obligations under the Order and these Terms, including without limitation the “most favorable pricing” commitment in Section 5.a. During the period between Vendor’s acceptance of the Order and five (5) years after final payment by Customer, Vendor shall permit Customer or its agents, on a confidential basis, to audit, and receive copies of, Vendor’s records relating to its compliance with its obligations under the Order. Such audit shall be conducted upon at least ten (10) days’ prior notice, during regular business hours. Such audits will not be conducted more than once annually, unless Customer conducts additional audits ‘for cause’ based on quality incidents. Vendor shall grant Customer, upon Customer’s request, access to Vendor’s facilities in connection with any such audit for the purpose of assessing Vendor’s compliance with applicable law and these Terms. Customer shall not unreasonably interfere with Vendor’s business activities while conducting a compliance audit. Customer will bear the cost of such audit unless such audit reveals a material breach or reveals that Customer was overcharged by an amount exceeding five percent (5%) of the total amount paid by Customer to Vendor over the applicable period of review, in which case Vendor shall reimburse Customer for its costs associated with the audit.
19. Assignment and Customer’s Business Groups. Neither party shall assign or transfer its rights or obligations under the Order without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that Customer shall have the right to extend its rights under the Order to its Business Groups.
20. Amendment; Waiver. With respect to an Order that has already been accepted, these Terms may not be amended or modified except by written agreement of both parties. With respect to future Orders, Customer reserves the right to amend or modify these Terms at any time in its sole discretion by posting to its website or otherwise making such amended or modified terms available, in which case such amendments or modifications will apply to all subsequent Orders accepted by Vendor. No course of dealing between the parties or any delay on the part of either party in exercising any rights they may have under an Order shall operate as a waiver of any of the rights of the other party. No express waiver shall affect any condition, covenant, rule, regulation, right or remedy other than the one specified in such waiver and only for the time and in the manner specifically stated.
21. Independent Relationship. None of the provisions of the Order or these Terms are intended to create, nor shall be deemed or construed to create, any relationship between Vendor and Customer other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of the Order. Neither of the parties, nor any of their respective employees shall be construed to be the agent, employer or representative of the other.
22. Headings. The headings in these Terms are for convenience and reference only and are not intended to, and shall not, define or limit the scope of the provisions to which they relate.
23. Enforceability; Severability. The invalidity or unenforceability of any term or provision of these Terms in any jurisdiction shall not affect the validity or enforceability of any of the other terms or provisions in that jurisdiction or of the entire Order in any other jurisdiction. If any provision is held invalid by a court of competent jurisdiction, such shall be severed and the Terms shall be interpreted as though the severed provision had not existed.
24. Notices. Any notice required to be given pursuant to the terms and provisions hereof shall be in writing and shall be sent by certified or registered mail, or by express delivery service (such as Federal Express) where the recipient must execute its receipt, to the other party at the address for such party reflected on the Order, or to such other address as such party may hereafter designate in writing.
25. Subcontractor Flowdown.
a. Government Contractor Requirements. To the extent applicable to Vendor pursuant to Customer’s status as a contractor with the Federal Government of the United States, Vendor agrees to comply with all relevant and applicable statutory, regulatory, and contractual requirements. In furtherance thereof, Vendor will provide Customer with all required written certifications, representations, and disclosures as may be required and Vendor represents and warrants that it will comply with the following provisions of Federal law:
- FAR 52.203-13, Contractor Code of Business Ethics and Conduct (Apr. 2010)
- FAR 52.219-8, Utilization of Small Business Concerns (Dec. 2010) (incorporating 15 U.S.C. § 637(d)(2) and (3))
- FAR 52.222-26, Equal Opportunity (Mar. 2007) (incorporating Executive Order 11246)
- FAR 52.222-35, Equal Opportunity for Veterans (Sep. 2010) (incorporating 38 U.S.C. § 4212 and 41 C.F.R. §60-300.5(a))
- FAR 52.222-36, Affirmative Action for Workers with Disabilities (Oct. 2010) (incorporating 29 U.S.C. § 793 and 41 C.F.R. §60-741.5(a))
- FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec. 2010) (incorporating E.O. 13496)
- FAR 52.222-41, Service Contract Act of 1965 (Nov 2007) (41 U.S.C. 351, et seq.)
- FAR 52.222-50, Combating Trafficking in Persons (Mar. 2015) (incorporating 22 U.S.C. 7104(g))
- FAR 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment--Requirements (Nov 2007) (41 U.S.C. 351, et seq.)
- FAR 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services--Requirements (FEB 2009) (41 U.S.C. 351, et seq.)
- FAR 52.222-54, Employment Eligibility Verification (JAN 2009)
- FAR 52.222-55 Minimum Wages Under Executive Order 13658. (Dec 2015)
b. Vendor Subcontractors. Vendor agrees that it shall not engage any entity or individual that is not an employee of Vendor (a “Subcontractor”) to perform any portion of its obligations under the Order unless Vendor has received Customer’s prior written authorization. Vendor shall ensure that each Subcontractor executes an agreement in which such Subcontractor agrees to be bound to all of the obligations described in the Order, to the extent of the work to be performed by Subcontractor for the benefit of Customer, and naming Customer as a third party beneficiary of such agreement. Vendor shall provide Customer with copies of such agreement(s) upon request by Customer. Notwithstanding the foregoing, Vendor shall remain responsible for the provision of the Products and services in accordance with the Order.
26. Ethical Labor and Anti-Human Trafficking Requirements.
a. Government Contractor Requirements. Vendor recognizes that Customer’s parent company is a U.S. company, and the United States Government has adopted a zero tolerance policy regarding trafficking in persons and in accordance with U.S. regulations, Customer has adopted such policy. Pursuant to Customer’s status as a contractor with the Federal Government of the United States, Customer is required under U.S. Federal Acquisition Regulation (“FAR”) 22.1705 to flow down to its contractors, including Vendor, the anti-trafficking obligations set forth in FAR 52.222.50. In furtherance thereof, Vendor agrees to comply with the following:
Vendor and Vendor’s employees shall not: (1) engage in severe forms of trafficking in persons during the period of performance of the Order; (2) procure commercial sex acts during the period of performance of the Order; (3) use forced labor in the performance of the Order; (4) destroy, conceal, confiscate, or otherwise deny access by an employee to the employee’s identity documents, such as passports or drivers’ licenses; (5) use misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose in a format and language accessible to the worker, basic information or making material misrepresentations during the recruitment of employees regarding key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions and housing, any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work; (6) use recruiters that fail in any way to comply with local labor laws of the country in which the recruiting took place; (7) use recruiters that charge “recruiting fees” to employees; (8) provide or arrange housing that fails to meet the host country and safety standards; (9) fail to provide a written employment contract, recruitment agreement, or similar work paper, if required by law or contract, in the employee’s native language at least five (5) days before the employee parts from his or her country of origin; or (10) fail to provide or reimburse return transportation costs upon the end of employment for employees who were brought into a country for the purpose of working on a U.S. Government contract or subcontract.
Vendor shall: (1) notify its employees of the zero tolerance policy of the United States Government, as a customer of Customer, regarding trafficking in persons, and the actions that will be taken against employees for violations of this policy; (2) take appropriate action, up to and including termination, against employees or subcontractors that violate the policy; (3) notify Customer of any conduct that violates this policy; (4) cooperate with Customer and participate in any investigations, audits, or other reviews resulting from an alleged violation of the representations made above, whether formal or informal, as reasonably requested by Customer. Such cooperation includes Customer’s ongoing monitoring of Vendor for Human Trafficking-related activities and random audits by the Customer or its delegates. Such cooperation does not require the waiver of (1) any existing attorney-client privilege by Vendor or (2) any right of Vendor or any of Vendor’s officers, principals, owners, employees or agents not to self-incriminate. Vendor shall also include the substance of this Section (“Ethical Labor and Anti-Human Trafficking Requirements”) in all relevant subcontracts.
b. Certification. The following shall only apply to and be completed by Vendors providing supplies or services outside the U.S. exceeding $500,000 USD. In the event that any portion of the supplies or services acquired by Customer through Vendor under the Order have an estimated value expected to exceed $500,000USD, and are for supplies, other than commercial off the shelf items, to be acquired outside the United States, Vendor certifies by acceptance of the Order that it has implemented a compliance plan to prevent any prohibited activities under the U.S. Government’s zero tolerance policy (identified at FAR 52.222-50(b)) and to monitor, detect, and terminate any agent, subcontract or subcontractor employee engaging in prohibited activities. By acceptance of the Order, Vendor certifies that to the best of its knowledge and belief, no U.S. Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any U.S. Government agency, a Member of the U.S. Congress, an officer or employee of the U.S. Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of the Order. The Vendor has provided or will provide the Customer with a copy of any OMB Standard Form LLL submitted with respect to the Order. After having conducted due diligence, Vendor certifies that neither it nor any of its agents, subcontractors, or their agents is engaged in any of the prohibited activities described above; or if abuses relating to any of the prohibited activities described above have been found, Vendor has taken the appropriate remedial and referral actions.
c. Violations. Consequences of violations of this Section 26 may include, but are not limited to reduction in benefits or immediate termination of the Order.
27. Global Compliance Warranties. Pursuant to these Terms, each party represents that it has not and agrees that it will not violate the laws and regulations of the United States of America (including the Foreign Corrupt Practices Act), any local laws of the country of operation, the country in which business is being conducted, or any other relevant country as applicable (including the United Kingdom Bribery Act of 2010) pertaining to bribery, improper payments, and kickbacks. Pursuant to these Terms, each party represents that it has not and agrees that it will not, either directly or indirectly, engage in bribery, or offer, or promise, or solicit, or make any “improper payment”, or receive an “improper payment,” including, but not limited to, cash, loan, gift, travel, entertainment, hospitality, facilitation payment, kickback, political or philanthropic contribution, anything of value for the benefit of the client or its personnel or any entity or individual associated with the client or its personnel, or for any other perceived benefit as an inducement to act or refrain from acting, or in order to improperly obtain or retain a business advantage in relation to the Order. Vendor represents and warrants that it will comply with all applicable U.S. and foreign export, import, and customs laws and regulations, including, but not limited to, the Export Administration Regulations (“EAR”), the Foreign Trade Regulations (“FTR”), the sanctions laws, regulations, and executive orders administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the U.S. Anti-boycott Laws as such term is defined below (collectively, the “Trade Control Laws”) at its sole cost and expense. In the event of a conflict between any U.S. and foreign Trade Control Laws, the U.S. Trade Control Laws shall prevail. Vendor acknowledges and agrees that in fulfilling each purchase order it shall be the exporter of record and U.S. Principal Party in Interest under the EAR and the FTR and that it is as such responsible for export compliance, including, but not limited to, accurately (i) determining the applicable export control classifications and licensing requirements, (ii) obtaining any necessary export licenses, and (iii) submitting any necessary export clearance declarations, including the Electronic Export Information, as applicable, for each export. Vendor shall further comply with all regulatory requirements that apply to the importation of the Products. Vendor shall complete and return to Customer the Vendor Export Classification Form attached as Exhibit A prior to the delivery of Products, except for basic medical supplies or other commercial products that fall under the EAR99 catch-all of the EAR. If Vendor does not provide a Vendor Export Classification Form to Customer, Vendor is deemed to have certified to Customer that the respective Products are classified as EAR99. Vendor must notify Customer before providing any technical data that is controlled under Trade Control Laws, if any, and clearly mark such data as export-controlled. Customer will not be liable to Vendor for any loss or expense if Vendor fails to comply with the applicable Trade Control Laws or with the provisions set forth herein. Vendor shall immediately notify Customer if Vendor becomes listed on, or owned or controlled by anyone on, any restricted persons list published by the U.S. Departments of Commerce, Treasury, or State, the European Union, or the United Kingdom, or if Vendor’s export privileges are fully or partially denied, suspended, or revoked. Notwithstanding anything to the contrary set forth herein, Customer may disclose Confidential Information to government agencies as Customer may deem reasonably necessary for the purpose of disclosing, resolving, or remediating any violation or potential violation of any applicable Trade Control Laws Notwithstanding any other provision herein, the obligation of Customer to enter into any order pursuant to these Terms shall be, at all times, subject to its ability to do so in a manner consistent with all applicable anti-boycott laws and regulations of the United States, including those regulations administered by the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Export Administration Regulations (“EAR”), 15 C.F.R. § 760, and the U.S. Department of the Treasury Internal Revenue Service’s (“IRS”) Internal Revenue Code (“IRC”), I.R.C. § 999 and Treas. Reg. § 1.999-1 (collectively, “U.S. Anti-boycott Laws”). Customer shall not be required to take, or to refrain from taking, any action where to do so would be inconsistent with or penalized under the U.S. Anti-boycott Laws. Vendor’s breach of the representations or prohibitions described in this Section 27 shall constitute a material breach of the Order, and in the event of such breach, Customer shall have the right to terminate the Order in whole or in part, immediately upon written notice to Vendor. Regardless of whether Customer exercises its right to terminate the Order, Vendor shall indemnify Customer for any claims made against Customer in connection with Vendor’s violation of the prohibitions described in this Section 27 and Vendor agrees to release any claim for any unpaid and/or future compensation under the Order.
28. Equal Employment Opportunity (EEO) Compliance. Vendor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. Vendor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals with disabilities and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. The contractual requirements of 41 CFR 60-1.4 and 29 CFR Part 471, Appendix A to Subpart A are incorporated by reference herein.
29. Prevention of Fraud, Waste and Abuse. These Terms are intended to be in compliance with all federal, state and local statutes, regulations and ordinances applicable on the date of the acceptance of the Order, including but not limited to HIPAA, the Program Fraud Civil Remedies Act of 1986, the Deficit Reduction Act of 2005, the related federal False Claims Act, state False Claims Acts, the federal Anti-Kickback Statute, the federal Stark Law and state kickback and healthcare referral laws, and whistleblower protections associated with any of the foregoing. Vendor has written policies and procedures for detecting and preventing fraud, waste, and abuse and will ensure that Products and services provided to Customer under the Order are in accordance with the requirements of the applicable federal and state laws.
30. Compliance with Policies. Customer has adopted and updated a “Compliance with False Claims Acts under Federal and State Laws Policy” that sets forth Customer’s commitment to compliance with the federal Civil False Claims Act and similar state laws including the whistleblower protections under such laws. In addition, Customer has posted Customer’s Code of Conduct and Ethics and the LabCorp Supplier Code of Conduct that both set forth standards of conduct required of employees as well as Customer’s suppliers, vendors, contractors, consultants and agents. These documents are being provided to Vendor for Vendor’s records via the internet at www.labcorp.com/contractors. Copies of these documents are also available upon request from Customer’s Corporate Compliance Department. As a supplier to Customer, Vendor and its employees agree to consult and comply with Customer’s policies as necessary with respect to all Products and services Vendor provides to Customer, and Vendor agrees to act in accordance with the requirements of applicable federal and state laws.
31. Entire Agreement. The Order and these Terms constitute the entire understanding between the parties concerning the subject matter herein and therein and is a complete statement of the terms thereof and shall supersede all previous understandings between the parties, whether oral or written with respect to the subject matter herein. The parties shall not be bound by any representation made by either party or an agent of either party that is not set forth in the Order or these Terms. Any applicable provisions required by federal, state, or local law are hereby incorporated by reference.
