The following terms and conditions are incorporated into the attached Purchase Order.

1. JHHS General Terms and Conditions.  Johns Hopkins’ standard General Terms and Conditions for the Purchase and Sale of Products (“PO Terms & Conditions”) as referenced in the Purchase Order shall apply in addition to the terms and conditions set forth herein. In the event there is a conflict between the PO Terms & Conditions and this Addendum, the provisions of this Addendum shall apply.
2. Invoices. Vendor shall submit its invoices to Johns Hopkins by emailing to the following email address: [email protected].
3. Right to Inspect, Reject. Vendor shall ensure that all Products supplied by it to Johns Hopkins meet Johns Hopkins’ quality standards as such are set forth in paragraphs 7 and 8 herein. Johns Hopkins reserves the right to inspect Products upon delivery and reject Products that (i) do not meet its quality standards; or (ii) are substituted products to which the parties have not mutually agreed. Further, Johns Hopkins shall have the right, upon reasonable prior notice to Vendor, to perform quality control inspections of Vendor’s operations from time to time during Vendor's regular business hours to determine if Vendor is in compliance with the applicable federal and state standards and procedures for processing the Products. Johns Hopkins agrees that such inspections shall not unreasonably interfere with Vendor’s operations. In the event that a Product does not conform to the quality standards, industry standards and/or applicable federal and/or state laws and regulations, Johns Hopkins shall be permitted to reject all nonconforming Products and services and shall be entitled to, at Johns Hopkins’ sole option, replacement of such Product or reimbursements for the all amounts paid to Vendor for such Products.
4. Notice of Out-Of-Stock Product. Vendor will provide Johns Hopkins with prompt notice of any out-of-stock Product identified on an order. The parties will mutually agree to substitute products.
5. Commitment to Supply, Priority Status. Vendor will use its best efforts to supply all of Johns Hopkins needs for the Products hereunder. In the event that Vendor experiences a shortage of supply or disruption in the production and\or distribution of a Product for any reason, Johns Hopkins shall have first priority access to Vendor’s supply of such Product; and Vendor will use commercially reasonable efforts to fulfill, to the extent of its supply of the Product, Johns Hopkins’ existing order(s) for such Product prior to supplying the Product to Vendor’s other customers.
6. Product Quality Standards. The Products provided hereunder to Johns Hopkins shall be top grade pursuant to the U.S. Official Grading Standards for such Products promulgated by the Agricultural Marketing Service of the United States Department of Agriculture (“Product Grading Standards”) and comply with any applicable Food and Drug Administration and Department of Health statutes and regulations.  Product Grading Standards are set forth at www.ams.gov/grades.
7. Product Packaging and Labeling. All Products shall be packaged and labeled in accordance with applicable federal and state laws and regulations and, where appropriate, include Product name, manufacture date, ship date, expiration date and proper storage information.
8. USDA, FDA Recall of Products.  If recall or modification of any of the Products is required by the USDA and/or the FDA or is voluntarily recommended or required by the Vendor, Vendor shall, at its sole cost and expense, notify Johns Hopkins of such recall or modification as promptly as possible, but in no event later than as required by the USDA and/or FDA, and shall, at Vendor’s sole cost and expense, remove the affected Product(s) from Johns Hopkins’ premises. Vendor may replace the recalled Product(s) with mutually agreed to substitute or refund to Johns Hopkins any amounts pre-paid for the recalled Product(s).
9. Shipments and Delivery of Products.  To ensure next-day delivery, Johns Hopkins must place Product orders in compliance with Vendor’s ordering policies and procedures as previously provided by Vendor to Johns Hopkins.  Vendor shall promptly notify Johns Hopkins of any change in said policies and procedures.  In the event Johns Hopkins does not comply with Vendor’s policies and procedures so that a Product order is not eligible for next-day delivery, Vendor shall deliver such Products to Johns Hopkins on the next applicable scheduled delivery date.
   1. The parties shall ascertain a mutually agreeable time for deliveries to the designated Johns Hopkins location
   2. Prices include all costs of shipping and delivery of Products to the specific locations within Johns Hopkins’ facility.
   3. Vendor shall package and ship Products to Johns Hopkins in a manner that will best ensure that the Products are delivered in condition fit for consumer consumption. For Products requiring refrigeration, Vendor shall package Products appropriately and ship Products via refrigerated carrier with refrigeration calibrated pursuant to applicable federal and state laws and regulations. All Products provided by Vendor hereunder shall from harvesting or packaging until delivery to Johns Hopkins’ facility be maintained at temperatures in accordance with federal, state and local laws and regulations and industry standards. Vendor will make all commercially reasonable efforts to consolidate multiple orders in a single shipment. Cost of special delivery and/or air shipments must be authorized in advance by Johns Hopkins, prepaid by Vendor and identified as a separate line item on Vendor’s invoice.

Exhibit A

GENERAL TERMS AND CONDITIONS FOR THE PURCHASE AND SALE OF PRODUCTS

1. Incorporated Terms and Conditions.  The following terms and conditions (the "Terms") apply to any Purchase Order, Evaluation or Pricing Agreement to which they are attached (the "Agreement").
2. Vendor Invoices. Upon receipt of a Purchase Order, Vendor will invoice Johns Hopkins for any amounts due therein.  Vendor’s invoices must contain the relevant Purchase Order number(s) and any Invoice that fails to contain such information shall be rejected by Johns Hopkins.  Thereafter, Vendor will issue a new, corrected invoice to Johns Hopkins for payment.   Invoices containing more than one Purchase Order shipment must be itemized by Purchase Order numbers.  Vendor shall issue any and all invoices within six (6) months of issuance of each Purchase Order in order to receive payment for same from Johns Hopkins.  Payment by Johns Hopkins shall be NET 60 days from the date of receipt of Vendor’s invoice.
3. Shipments and Delivery of Products. Products will be delivered, F.O.B. Destination (shipment, handling, insurance pre-paid by Vendor) no later than the delivery date indicated on the Purchase Order. Vendor will provide Johns Hopkins with immediate notice of any out-of-stock inventory identified on a Purchase Order. No substitutions are allowed without the prior written consent of Johns Hopkins. All Products must be shipped in their original packaging and Vendor will make all commercially reasonable efforts to consolidate multiple orders in a single shipment. Cost of special delivery and/or air shipments must be authorized in advance by Johns Hopkins, prepaid by Vendor and identified as a separate line item on Vendor’s invoice.  A packing slip or shipping documentation must be attached to the exterior packaging of each shipping container to identify the content’s Purchase Order number(s), contents and quantity, and to indicate partial shipments.
4. Most Favored Customer Pricing. Vendor will provide Johns Hopkins the most favored customer pricing for the Products as Vendor quotes to other customers purchasing comparable quantities. Vendor will notify Johns Hopkins of any reduction in the price of any Products and provide Johns Hopkins with a price reduction that is comparable to the largest price reduction given to its other customers purchasing comparable quantities. Vendor will issue Johns Hopkins either a full refund or credit for any Products returned to Vendor pursuant to this Agreement.
5. No Taxes. Johns Hopkins represents that it is a tax-exempt corporation under Sections 501(a) and 501(c)(3) of the Internal Revenue Code of the United States, as amended, and under applicable laws of the State of Maryland.  A copy of the tax exemption certificate for the appropriate Johns Hopkins entity, issued by the State of Maryland, will be provided upon request. Vendor shall take all action required to cause Johns Hopkins's purchase of the Products to be treated as tax-exempt transactions, and in no event shall Johns Hopkins be responsible for any sales, use, property, gross receipts, or similar taxes levied against any party to this Agreement.
6. Indemnification on Intellectual Property Claims. Vendor shall defend, indemnify and hold harmless Johns Hopkins and its subsidiaries or affiliates, and their trustees, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Johns Hopkins’ use or possession of the Products pursuant to and for the purposes set forth in this Agreement infringes or violates the copyright, trade secret, trademark, United States patent, or other proprietary right of any third party. Vendor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Johns Hopkins gives Vendor (i) the sole right to control and direct the investigation, preparation, defense, and settlement of any such claim, (ii) prompt notice of any claim, provided, however, that Johns Hopkins’ failure to give prompt notice to Vendor of any such claim shall not relieve Vendor of any obligation hereunder except and to the extent that such failure prejudices Vendor’s ability to defend against such claim, and (iii) its cooperation and assistance with the investigation, defense or  settlement of the claim. No settlement that prevents Johns Hopkins from continuing to use the Products, as provided herein, shall be made without Johns Hopkins’ prior written consent. Johns Hopkins shall, at its own cost and expense, have the right to participate in the defense of any suit or proceeding through counsel of its own choosing. In the event the Products, or any part thereof, are held to constitute such an infringement and its use enjoined, then Vendor shall, at Johns Hopkins’ option, and at Vendor’s expense, either procure for Johns Hopkins the right to continue using the Products, replace or modify the Products with a non-infringing version, or remove the Product and refund the purchase price.
7. General Indemnification. Vendor shall defend, indemnify and hold Johns Hopkins, and its subsidiaries or affiliates, and their trustees, officers, employees and agents, harmless from any and all loss, lawsuit, liability, damage, cost and expense (including legal fees) which may arise out of or result from: (i) claims by third persons against Johns Hopkins that the Products provided hereunder cause damage to property or bodily injury (including death), or (ii) the willful misconduct or any acts or omissions of Vendor, its agents or employees in connection with this Agreement, or (iii) any defect in the Products, or (iv) any breach or default in the performance of Vendor's obligations. The provisions of this Section 7 shall survive termination of this Agreement.  Vendor's indemnification obligation hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Johns Hopkins. 
8. FDA Recall of Products. If recall or modification of any of the Products is required by the FDA or voluntarily recommended or required by the Vendor, Vendor shall, at its sole cost and expense, immediately notify Johns Hopkins in writing of such recall or modification; remove, package, and ship to Vendor's plant the affected Product(s); and at no additional charge to Johns Hopkins replace such Product(s) with Vendor Products which have been evaluated and accepted by Johns Hopkins as clinically comparable. All recall notices must be immediately faxed to Johns Hopkins Risk Management Department at: 410-614-3678.
9. FDA Compliance. Vendor shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances, and represents that it shall have obtained all licenses and permits required by law to engage in the activities necessary to perform its obligations under this Agreement. Vendor hereby represents and warrants that all Products provided to Johns Hopkins hereunder have appropriate documentation in conjunction with FDA regulations, and copies of the approval or clearance documentation issued to Vendor by the FDA will be provided to Johns Hopkins, upon request.
10. Confidentiality. "Confidential Information" refers to any (i) technical or design information related to the Products; (ii) business or financial information, including but not limited to product plans, costs or prices; and (iii) any information designated by a party as confidential or proprietary.  The parties shall hold in confidence any information designated by a party as Confidential Information and will exercise the same degree of care to protect it from disclosure that it uses to protect its own Confidential Information of similar importance.  Each party shall only use the other party’s Confidential Information as necessary to perform its obligations hereunder and will return or destroy it at the request of the disclosing party or upon the termination or expiration of this Agreement. Confidential Information does not include information: (i) otherwise available from a third party, without any limitations on its use, distribution or disclosure; (ii) in the public domain; or (iii) known to the receiving party prior to its disclosure, as evidenced by written records.  The parties hereby covenant that they shall not disclose Confidential Information to any third party without prior written authorization of the disclosing party. Vendor further agrees not to disclose or use the name of Johns Hopkins in any publication or any articles, advertising or publicity without the prior written consent of Johns Hopkins.
11. Warranties.
    1. Warranty of Products. Vendor warrants that all Products provided hereunder are of clear title, free of any liens and encumbrances and free from defects in material and workmanship and will conform to its written product specifications.  Vendor further warrants that the Products are merchantable and will conform to any express warranties made by affirmation, promise, description or sample.  Johns Hopkins will notify Vendor of any known or reported defect constituting a breach of the foregoing warranties. Vendor will provide Johns Hopkins, at no additional charge to Johns Hopkins, a toll free customer support telephone number available twenty-four hours per day, seven days per week to report problems with or defects in the Products and will make every commercially reasonable effort to immediately respond to any reports of problems with any of the Products.
    2. Software Warranty. In the event any Products are accompanied by or embedded with software, Vendor warrants that the software: (i) is free from defects in material and workmanship and will substantially conform to its written product descriptions and any technical specifications and (ii) does not contain any virus, worm, timer or clock that would erase data or programming or otherwise cause the software to become inoperable.  Vendor further agrees to provide Johns Hopkins, at no additional charge, any and all routine changes, updates and maintenance services intended to provide general improvements to the performance of the Products or as may be required for compliance with applicable government regulations.
    3. Additional Warranties. Vendor further warrants to Johns Hopkins, as follows: (i) any technical support or services will be performed in accordance with industry practices, in a professional manner by properly trained and suitably skilled personnel, (ii) Vendor is a corporation duly organized and in good standing under the laws of the jurisdiction of its incorporation, with full corporate power and authority to conduct its business in the manner contemplated by this Agreement and (iii) Vendor is not sanctioned or excluded from participating in any federally funded health care programs, as provided in Sections 1128 and 1128A of the Social Security Act, 42 U.S.C. §1320a-7a.  Vendor shall notify Johns Hopkins immediately in the event it becomes sanctioned or excluded from any federally funded health care program(s). Such notification shall include the grounds for sanction or exclusion and the duration thereof.
12. Insurance. Vendor shall maintain in full force and effect, at its sole expense, policies of general liability and product liability insurance in the minimum amount of Five Million Dollars ($5,000,000) for each claim for each policy year to insure Johns Hopkins, its officers, trustees, employees and agents against any claim or claims for damages resulting, directly or indirectly, from the intentional or negligent acts of Vendor in connection with the performance of its obligations under this Agreement or the defective performance of any of the Products.  All such insurance policies shall provide that they will not be canceled without providing at least thirty (30) days prior written notice to Johns Hopkins.
13. Product Demonstrations. Prior to any contact with Johns Hopkins patients, an employee of Vendor must submit to Johns Hopkins: (i) evidence of HBV vaccination or a declination form; (ii) proof of completion of blood-borne pathogen safety training, per OSHA regulations, in effect; and (iii) proof of a negative tuberculin test.
14. Access to Books and Records. Pursuant to 42 U.S.C. 1295x(1) (I) and42 C.F.R.§ 420.302 if the value or cost of services, goods or products rendered to Buyer by Company or by an organization related to the Company is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Company and Buyer agree that until the expiration of four (4) years after the furnishing of such services, goods or products, Company and Buyer shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the "Secretary"), the Secretary's duly authorized representative, the Comptroller General, or the Comptroller General's duly authorized representative, such books, documents and records as may be necessary to certify the nature and extent of the costs of such services, goods or products.
15. Notices. All legal notices and other communications must be in writing and will be considered given upon (i) delivery by hand or (ii) one (1) day after delivery by receipted overnight delivery courier, or (iii) three (3) days after mailed by certified or registered mail, return receipt requested, with postage prepaid to the parties at the addresses set in the Agreement, with a copy to Johns Hopkins at:  733 N. Broadway, Suite 102, ATTENTION:  General Counsel, Baltimore, Maryland 21287-1900.
16. In the event of any recall notice issued by Vendor or the FDA, Vendor shall send such notice to Johns Hopkins, Attention: Risk Management Department, Facsimile Number 410-614-3678.
17. Vendor Full Disclosure Statement. Vendor will execute the Vendor Full Disclosure Statement, attached hereto as Attachment 1.  The proper execution and delivery of the Vendor Full Disclosure Statement is a condition precedent to Johns Hopkins’ obligations under this Agreement.
18. No Modification. This Agreement may not be modified except by a written document executed by both parties. Vendor may not assign any of its rights or obligations hereunder without the prior written consent of Johns Hopkins.  The provisions of this Agreement shall be binding upon and inure to the benefit of Johns Hopkins and Vendor, their respective successors and permitted assigns.  All rights, remedies and powers of Johns Hopkins are irrevocable and cumulative and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers to which it may be entitled at law or in equity.  This Agreement may be executed by counterparts or duplicate originals, all of which shall be regarded as one and the same instrument.
19. Construction and Jurisdiction. This Agreement shall be governed by the laws of the State of Maryland (excepting any conflict of laws or provisions which would serve to defeat application of Maryland substantive law).  Each of the parties to this Agreement hereby irrevocably and unconditionally:  (i) consents to submit to the exclusive jurisdiction of the courts of Howard County, Maryland for any proceeding arising in connection with this Agreement and each such party agrees not to commence any such proceeding except in such courts, and (ii) waives any objection to the laying of venue of any such proceeding in the courts of Howard County, Maryland.  If for any reason venue is not accepted in Howard County, the parties irrevocably consent as provided in this Section to the exclusive jurisdiction of the courts of Baltimore County, Maryland.  EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
20. Miscellaneous.
    1. This Agreement, including these Terms, constitute the final, complete and exclusive agreement between the parties with respect to the purchase and sale of the Products and shall supersede all prior or contemporaneous agreements between the parties, whether written or oral, including those terms and conditions which may be included in a proposal, price quotation or an order acknowledgement. 
    2. If any portion of this Agreement is held invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part, will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted so as to best accomplish its intent within the limits of the applicable law.
    3. No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver.
    4. Any provisions, which, by their nature are intended to survive the termination or expiration of this Agreement, will survive its termination or expiration, including each party’s confidentiality and indemnification obligations and any warranties.
    5. Vendor certifies that it is in compliance with and agrees to be bound by affirmative action clauses set forth in 41 CFR §60-1.4 (addressing race, sex, color, religion, and national origin), 41 CFR §60-250.4 and 41 CFR §60-250.5 (addressing veteran status), and 41 CFR §60-741.4 and 41 CFR §60-741.5 (addressing disabilities).
    6. The provisions of Sections 6, 7, 10 and 11 shall survive the expiration or termination of this Agreement.
21. Conflict. These Terms shall supersede any and all terms and conditions set forth in Vendor’s invoice or policy or any other agreement, including Vendor’s price quotation or proposal, and in the event of any conflict between any such terms and conditions, these Terms shall apply.
22. Procurements Issued Under Government Contracts. The following clauses and certifications contained in Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations (DFAR) to the extent required by law or the Purchaser's contract award from the government and as constituted on the date of this Purchase Order, are hereby incorporated by reference as fully as if they were set forth at length herein, except that as used in said clauses and certifications the terms "Contract," "Contractor," and "Contracting Officers" shall be deemed to refer respectively to "Purchase Order," "Vendor," and "Purchaser." Upon request of the Vendor, the Purchaser will furnish the Vendor with copies of the referenced clauses and certifications: All Orders: 52.203-6 Restrictions On Subcontractor Sales To The Government, 52.203-7 Anti-Kickback Procedures, 52.203-12 Limitation On Payments To Influence Certain Federal Transactions, 52.204-2 Security Requirements, 52.209-6 Protecting The Government’s Interest When Subcontracting With Contractors Debarred, Suspended, Or Proposed For Debarment, 52.215-1 Instructions To Offerors - Competitive Acquisition, 52.219-8 Utilization Of Small Business Concerns, 52.222-1 Notice To The Government Of Labor Disputes, 52.222-4 Contract Work Hours And Safety Standards Act - Overtime Compensation, 52.222-21 Prohibition Of Non-Segregated Facilities, 52.222-26 Equal Opportunity, 52.222-35 Affirmative Action For Disabled Veterans And Veterans Of The Vietnam Era, 52.222-36 Affirmative Action For Workers With Disabilities, 52.222-37 Employment Reports On Disabled Veterans And Veterans Of The Vietnam Era, 52.223-3 Hazardous Material Identification And Material Safety Data, 52.227-1 Authorization And Consent, Alternate I, 52.227-2 Notice And Assistance Regarding Patent And Copyright Infringement, 52.227-10 Filing Of Patent Applications - Classified Subject Matter, 52.227-11/12/13 Patent Rights, 52.247-63 Preference For U.S.-Flag Air Carriers, 52.247-64 Preference For Privately-Owned U.S.-Flag Commercial Vessels, 252.203-7001 Special Prohibition On Employment, 252.204-7000 Disclosure Of Information, 252.225-7009/7010 Duty-Free Entry, 252.225-7025 Reporting Of Overseas Subcontracts, 252.227-7013 Rights In Technical Data And Computer Software, 252.227-7018 Restrictive Markings On Technical Data, 252.227-7037 Validation Of Restrictive Markings On Technical Data, Orders Over $2,000: 52.222-6 Davis Bacon Act, 52.222-7 Withholding Of Funds, 52.222-8 Payrolls And Basic Records, 52.222-9 Apprentices And Trainees, 52.222-10 Compliance With Copeland Act Requirements, 52.222-11 Subcontracts (Labor Standards), 52.222-12 Contract Termination-Debarment, 52.222-13 Compliance With Davis-Bacon And Related Act Regulations, 52.222-14 Disputes Concerning Labor Standards, 52.222-15 Certification Of Eligibility, Orders Over $2,500: 52.222-41 Service Contract Act Of 1965 As Amended, Orders Over $25,000: 52.215-2 Audit And Records - Negotiation, Alternate II, 52.215-14 Integrity Of Unit Prices, 52.223-6 Drug Free Workplace Cost Or Pricing Data - Modifications, 52.219-9 Small Business Subcontracting Plan, 52.225-13 Restrictions on Certain Foreign Purchases, 252.227-7034 Patents - Subcontracts, 252.227-7039 Reporting of Subject Inventions, Orders Over $100,000: 52.223-2 Clean Air And Water, Orders Over $550,000: 52.219-9 Small Business Subcontracting Plan, Orders Over $650,000: 52.215-12/13 Subcontractor Cost or Pricing Data – Modifications.
23. Procurements Issued Under Government Grants. Procurements made with Federal funds are subject to compliance with the standards and requirements as set forth in OMB Circular A-110, Section 48, Contract Provisions, and Appendix A, and OMB Circular A-133, Paragraph 5. All procurement requirements contained in the above referenced Circulars are incorporated herein by reference.                                                                                                                           

Vendor: __________________________________________________

Name of Agreement or Purchase Order No.:______________________

Date of Agreement or Purchase Order:___________________________

JH Entity: ______________________________________________

 

For further information regarding these Terms and Conditions, please contact [email protected].

ATTACHMENT TO PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF EQUIPMENT

1. Incorporated Terms and Conditions. The following terms and conditions (the “Terms”) are attached to and made a part of the applicable Purchase Order issued by Buyer. The Purchase Order and these Terms are collectively referred to as the “Agreement”. To the extent that a copy of the Vendor’s Quote and the Equipment Specifications are attached to the Purchase Order, such materials are hereby incorporated herein by reference; provided, however, that in the event that Equipment Specifications are not attached to the Purchase Order, the Equipment Specifications shall refer to Vendor’s performance specifications for the Equipment (the “Specifications”).
2. Vendor Invoices. Upon receipt of a Purchase Order, Vendor will invoice Buyer for any amounts due therein. Vendor’s invoices must contain the relevant Purchase Order number(s) and any invoice that fails to contain such information shall be rejected by Buyer. In that event, Vendor will issue a new, corrected invoice to Buyer for payment. Invoices containing more than one Purchase Order shipment must be itemized by Purchase Order numbers. Vendor shall issue any and all invoices within six (6) months of issuance of each Purchase Order in order to receive payment for same from Buyer. Payment by Buyer shall be NET 60 days from the date of receipt of Vendor’s invoice.
3. Equipment and Delivery of Equipment. Equipment will be delivered, F.O.B. Destination (shipment, handling, insurance pre-paid and absorbed by Vendor) no later than the delivery date indicated on the Purchase Order. Title and risk of loss or damage to items shall remain with Vendor until delivered to the Installation Site and Buyer has inspected the delivered components and determined that the shipment is complete and the components undamaged. The Equipment shall be packaged appropriately and all cartons shall be clearly stamped with Buyer's Purchase Order Number. Buyer must be able to identify easily all items of the Equipment contained within each carton. The Equipment shall be packaged appropriately and all cartons shall be clearly stamped with Buyer's Purchase Order Number.
   1. Vendor shall provide Buyer with two (2) copies of operator and service instruction manuals (which shall include electrical and mechanical schematics, and parts and current price lists).
   2. Vendor shall be responsible for the removal of any and all trash and waste from the installation site.
4. Commitment to Supply. Vendor will reimburse Buyer for the difference between the Contract Price and List Price of the Products purchased from any alternate wholesaler or supplier other than Vendor when Vendor is unable or unwilling to supply the Products for any reason.
5. Vendor Responsibilities. Vendor agrees to: (i) deliver the Equipment described on attached purchase order at no cost or expense to Hopkins; (ii) install the Equipment or provide installation instructions to Hopkins; and (iii) provide training or instructions regarding the Equipment’s operation to Hopkins personnel; and (iv) provide a toll-free hotline number for technical assistance. In the performance of the services hereunder, all Vendor personnel shall comply with all applicable Buyer policies and procedures provided in advance to Vendor.
6. Testing/Certification/Acceptance. Upon completion of installation of the Equipment, Vendor shall perform prescribed tests to determine that the Equipment is operating in conformance with Vendor’s published performance specifications for the Equipment and any other requirements agreed to by the parties (“Equipment Turnover”). A three conductor (grounded) power cord, no less than 18 AWG, with an approved hospital grade plug cap, is required. For portable or mobile equipment, the power cord is to be permanently attached; if portable equipment is provided without a permanently attached power cord, Buyer may, in its discretion, attach such permanent cord. Said modification to the Equipment will not affect the warranty provided by the Vendor. Grounding resistance is to be less than 0.5 ohms to any exposed conductive surface. Leakage current is to be no more than 50 microamperes (10 microamperes if the Equipment is specified as being patient-isolated) between any patient lead and ground or any other patient lead, with the Equipment on or off, grounded or ungrounded, and correct or reversed polarity. In the event the Equipment or any feature or option thereof requires certification under Federal law, Vendor will complete and file all necessary reports regarding Vendor’s manufacture, assembly, installation or other activity relating to the Equipment. Final payment from Buyer shall not be due and owing unless and until the Equipment reaches Acceptance. “Acceptance" of the Equipment shall be deemed to occur on the date when, in the reasonable opinion of Buyer, the Equipment conforms to the Equipment Specifications, and has continuously operated in compliance with the Specifications for thirty (30) days after Equipment Turnover.
7. Training. If applicable and necessary, training on the use and operation of the Equipment and related disposables will be provided at a mutually agreeable time at the request of Buyer. Training will be conducted at Buyer’s location, and the training, as well as any written materials distributed by Vendor, shall be provided to Buyer at no additional cost.
8. No Taxes. Buyer represents that it is a tax-exempt corporation under Sections 501(a) and 501(c)(3) of the Internal Revenue Code of the United States, as amended, and under applicable laws of the State of Maryland. A copy of the tax exemption certificate for the appropriate Buyer entity, issued by the State of Maryland, will be provided upon request. Vendor shall take all action required to cause Buyer's purchase of the Equipment to be treated as tax-exempt transactions, and in no event shall Buyer be responsible for any sales, use, property, gross receipts, or similar taxes levied against any party to this Agreement.
9. Indemnification on Intellectual Property Claims. Vendor shall defend, indemnify and hold harmless Buyer and its subsidiaries or affiliates, and their trustees, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Buyer’s use or possession of the Equipment pursuant to and for the purposes set forth in this Agreement infringes or violates the copyright, trade secret, trademark, United States patent, or other proprietary right of any third party. Vendor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Buyer gives Vendor (i) the sole right to control and direct the investigation, preparation, defense, and settlement of any such claim, (ii) prompt notice of any claim, provided, however, that Buyer’s failure to give prompt notice to Vendor of any such claim shall not relieve Vendor of any obligation hereunder except and to the extent that such failure prejudices Vendor’s ability to defend against such claim, and (iii) its cooperation and assistance with the investigation, defense or settlement of the claim. No settlement that prevents Buyer from continuing to use the Equipment, as provided herein, shall be made without Buyer’s prior written consent. Buyer shall, at its own cost and expense, has the right to participate in the defense of any suit or proceeding through counsel of its own choosing. In the event the Equipment, or any part thereof, are held to constitute such an infringement and its use enjoined, then Vendor shall, at Buyer’s option, and at Vendor’s expense, either procure for Buyer the right to continue using the Equipment, replace or modify the Equipment with a non-infringing version, or remove the Equipment and refund the purchase price. The provisions of this Section 9 shall survive expiration or termination of this Agreement.
10. General Indemnification. Vendor shall defend, indemnify and hold Buyer, and its subsidiaries or affiliates, and their trustees, officers, employees and agents, harmless from any and all loss, lawsuit, liability, damage, cost and expense (including legal fees) which may arise out of or result from: (i) claims by third persons against Buyer that the Equipment provided hereunder caused damage to property or bodily injury (including death); (ii) the willful misconduct or any acts or omissions of Vendor, its agents or employees in connection with this Agreement; (iii) any defect in the Equipment, or (iv) any breach or default in the performance of Vendor's obligations. The provisions of this Section 10 shall survive expiration or termination of this Agreement. Vendor's indemnification obligation hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Buyer.
11. FDA Recall of Equipment. If recall or modification of any of the Equipment is required by the FDA or voluntarily recommended or required by the Vendor, Vendor shall, at its sole cost and expense, immediately notify Buyer in writing of such recall or modification; remove, package, and ship to Vendor's plant the affected Equipment and at no additional charge to Buyer, replace such Equipment with Vendor Equipment which has been evaluated and accepted by Buyer as clinically comparable. All recall notices must be immediately faxed to Buyer’s Risk Management Department at: 410-614-9507.
12. FDA Compliance. Vendor shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances, and represents that it shall have obtained all licenses and permits required by law to engage in the activities necessary to perform its obligations under this Agreement. Vendor hereby represents and warrants that all Equipment provided to Buyer hereunder has appropriate documentation in conjunction with FDA regulations, and copies of the approval or clearance documentation issued to Vendor by the FDA will be provided to Buyer, upon request.
13. Confidentiality. "Confidential Information" refers to any (i) technical or design information related to the Equipment; (ii) business or financial information, including but not limited to Equipment plans, costs or prices; and (iii) any information designated by a party as confidential or proprietary. The parties shall hold in confidence any information designated by a party as Confidential Information and will exercise the same degree of care to protect it from disclosure that it uses to protect its own Confidential Information of similar importance. Each party shall only use the other party’s Confidential Information as necessary to perform its obligations hereunder and will return or destroy it at the request of the disclosing party or upon the termination or expiration of this Agreement. Confidential Information does not include information: (i) otherwise available from a third party, without any limitations on its use, distribution or disclosure; (ii) in the public domain; or (iii) known to the receiving party prior to its disclosure, as evidenced by written records. The parties hereby covenant that they shall not disclose Confidential Information to any third party without prior written authorization of the disclosing party. Vendor further agrees not to disclose or use the name of Buyer in any publication or any articles, advertising or publicity without the prior written consent of Buyer. The provisions of this Section 13 shall survive expiration or termination of this Agreement.
14. License to Software. Vendor hereby grants to Buyer a limited, nonexclusive, royalty-free license and/or sublicense to use any software and its accompanying documentation delivered with or embedded in the Equipment. Any charge for the license is included in the purchase price set forth on the Agreement.
15. Warranties.
    1. Warranty of Equipment. Vendor warrants that the Equipment provided hereunder is of clear title, free of any liens and encumbrances and free from defects in material and workmanship and will conform to its written specifications. Vendor further warrants that the Equipment is merchantable and will conform to any express warranties made by affirmation, promise, description or sample. Buyer will notify Vendor of any known or reported defect constituting a breach of the foregoing warranties. Vendor will provide Buyer, at no additional charge to Buyer, a toll free customer support telephone number available twenty-four hours per day, seven days per week to report problems with or defects in the Equipment and will make every commercially reasonable effort to immediately respond to any reports of problems with any of the Equipment.
    2. Software Warranty. In the event any Equipment are accompanied by or embedded with software, Vendor warrants that the software: (i) is free from defects in material and workmanship and will substantially conform to its written descriptions and any technical specifications and (ii) does not contain any virus, worm, timer or clock that would erase data or programming or otherwise cause the software to become inoperable. Vendor further agrees to provide Buyer, at no additional charge, any and all routine changes, updates and maintenance services intended to provide general improvements to the performance of the Equipment or as may be required for compliance with applicable government regulations.
    3. Additional Warranties. Vendor further warrants to Buyer, as follows: (i) any technical support or service will be performed in accordance with industry practices, in a professional manner by properly trained and suitably skilled personnel, (ii) Vendor is a corporation duly organized and in good standing under the laws of the jurisdiction of its incorporation, with full corporate power and authority to conduct its business in the manner contemplated by this Agreement and (iii) Vendor is not sanctioned or excluded from participating in any federally funded health care programs, as provided in Sections 1128 and 1128A of the Social Security Act, 42 U.S.C. §1320a-7a. Vendor shall notify Buyer immediately in the event it becomes sanctioned or excluded from any federally funded health care program(s). Such notification shall include the grounds for sanction or exclusion and the duration thereof.
16. Insurance. Vendor shall maintain in full force and effect, at its sole expense, policies of general liability and commercial general liability insurance in the minimum amount of Five Million Dollars ($5,000,000) for each claim for each policy year to insure Buyer, its officers, trustees, employees and agents against any claim or claims for damages resulting, directly or indirectly, from the intentional or negligent acts of Vendor in connection with the performance of its obligations under this Agreement or the defective performance of any of the Equipment. All such insurance policies shall provide that they will not be canceled without providing at least thirty (30) days prior written notice to Buyer.
17. Equipment Demonstrations. Prior to any contact with Buyer’s patients, an employee of Vendor must submit to Buyer: (i) evidence of HBV vaccination or a declination form; (ii) proof of completion of blood-borne pathogen safety training, per OSHA regulations, in effect; and (iii) proof of a negative tuberculin test.
18. Access to Books and Records. Pursuant to 42 U.S.C. 1395x(1)(I)and 42 C.F.R.§ 420.302, if the value or cost of Equipment or services rendered to Buyer by Vendor or by an organization related to Vendor is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Vendor and Buyer agree that until the expiration of four (4) years after the furnishing of such Equipment or services, Vendor and Buyer shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the "Secretary"), the Secretary's duly authorized representative, the Comptroller General, or the Comptroller General's duly authorized representative, such books, documents and records as may be necessary to certify the nature and extent of the costs of such Equipment or services.
19. Notices. All legal notices and other communications must be in writing and will be considered given upon (i) delivery by hand or (ii) one (1) day after delivery by receipted overnight delivery courier, or (iii) three (3) days after mailed by certified or registered mail, return receipt requested, with postage prepaid to the parties at the addresses set forth in the Agreement, with an additional copy to Buyer at: 733 N. Broadway, Suite 102, ATTENTION: General Counsel, Baltimore, Maryland 21205.
    1. In the event of any recall notice issued by Vendor or the FDA, Vendor shall send such notice to Buyer, Attention: Risk Management Department, Facsimile Number 410-614-9507.
20. No Modification. This Agreement may not be modified except by a written document executed by both parties. Vendor may not assign any of its rights or obligations hereunder without the prior written consent of Buyer. The provisions of this Agreement shall be binding upon and inure to the benefit of Buyer and Vendor, their respective successors and permitted assigns. All rights, remedies and powers of Buyer are irrevocable and cumulative and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers to which it may be entitled at law or in equity. This Agreement may be executed by counterparts or duplicate originals, all of which shall be regarded as one and the same instrument.
21. Construction and Jurisdiction. This Agreement shall be governed by the laws of the State of Maryland (excepting any conflict of laws or provisions which would serve to defeat application of Maryland substantive law). Each of the parties to this Agreement hereby irrevocably and unconditionally: (i) consents to submit to the exclusive jurisdiction of the courts of Howard County, Maryland for any proceeding arising in connection with this Agreement and each such party agrees not to commence any such proceeding except in such courts, and (ii) waives any objection to the laying of venue of any such proceeding in the courts of Howard County, Maryland. If for any reason venue is not accepted in Howard County, the parties irrevocably consent as provided in this Section to the exclusive jurisdiction of the courts of Baltimore County, Maryland.
    
    *Each Party, Knowingly and After Consultation With Counsel, for Itself, Its Successors and Assigns, Waives All Right to Trial By Jury of Any Claim Arising With Respect to This Agreement or Any Matter Related in Any Way Thereto.
22. Vendor Full Disclosure. Vendor shall not provide or distribute any “Gifts, Services or Consideration” of any value to any Johns Hopkins Personnel. "Gifts, Services or Consideration" includes, but is not limited to: gifts, gratuities, social entertainment offered or sponsored by the vendor, samples, consulting and research activities, vendor-sponsored travel, educational conferences, seminars, other business courtesies and discounts and any additional items or services not described in the Agreement regardless of the monetary value of such “Gifts, Services or Consideration”. Gifts include items such as pens, coffee mugs or mouse pads.
23. Miscellaneous.
    1. This Agreement, including these Terms, constitutes the final, complete and exclusive agreement between the parties with respect to the purchase and sale of the Equipment and shall supersede all prior or contemporaneous agreements between the parties, whether written or oral, including those terms and conditions which may be included in a proposal, price quotation or order acknowledgement.
    2. If any portion of this Agreement is held invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part, will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted so as to best accomplish its intent within the limits of the applicable law.
    3. No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver.
    4. Any provisions, which, by their nature are intended to survive the termination or expiration of this Agreement, will survive its termination or expiration, including any warranties.
    5. Affirmative Action. It is the policy of Buyer to provide equal job opportunities to all people. Buyer prohibits discrimination and maintains a written Affirmative Action Plan designed to ensure equal employment opportunities based on race, color, religion, sex, national origin, and status as a qualified individual with a disability or a protected veteran. Buyer incorporates by reference into this Agreement all applicable requirements (as amended) mandated by the Office of Federal Contract Compliance Programs (“OFCCP”) of the U.S. Department of Labor for federal government contractors pursuant to Executive Order 11246, the Rehabilitation Act of 1973, Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act (“VEVRAA”). In addition, retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes any employment practice covered by OFCCP.
    6. Sunshine Act Reporting. Vendor acknowledges and agrees that prior to or simultaneously with submitting any reports pursuant to the Physician Payment Sunshine Act (the “Sunshine Act”) which pertain to Buyer, Vendor shall provide a written copy of such report to Buyer at the following address: The Johns Hopkins Health System Corporation, Attention: Betty Gibula, 3910 Keswick Road, Suite N4100, Baltimore, Maryland 21211. Such written report shall include, without limitation, the name of the individual or department to whom the transfer of value was provided and a detailed description of what was transferred. In the event that Buyer has any questions or comments in connection with such report, Buyer may contact the Vendor by telephone and/or email.
24. Conflict. These Terms Shall Supersede Any and All Terms and Conditions Set Forth In Vendor’s Invoice or Policy or Any Other Agreement, Including Vendor’s Price Quotation or Proposal, and in the Event of Any Conflict Between Any Such Terms And Conditions, These Terms Shall Apply.

* * End of Terms * *

The following terms and conditions (“Terms”) are attached to or referenced and made a part of the applicable purchase order (“Purchase Order”) issued by The Johns Hopkins Health System Corporation or its affiliate referenced therein (“Hopkins”) and apply to the evaluation of any equipment and/or instrumentation and related software and services (collectively, the “Equipment”) of the vendor identified on the Purchase Order (the “Vendor”), unless Hopkins and Vendor sign a separate agreement related to this Equipment evaluation expressly superseding these Terms. The Purchase Order and these Terms are collectively referred to as the “Agreement”. Upon delivery of Equipment for evaluation, Vendor agrees to be legally bound by these Terms, and these Terms shall supersede all prior or contemporaneous agreements between the parties related to this Equipment evaluation, unless such agreement is signed by both parties, including those terms and conditions which may accompany a proposal, price quotation, order acknowledgement, or delivery of any Equipment.

1. Equipment. Vendor shall provide Equipment for evaluation at no charge to Hopkins during the Evaluation Period, as hereinafter defined. Vendor shall provide a quotation detailing the value of the Equipment and the Equipment value shall be incorporated herein by reference.
2. Disposables. Vendor shall provide disposables at no cost to Hopkins.
3. Evaluation Period. The evaluation period shall not to exceed ninety (90) days (the “Evaluation Period”). Vendor will, at its sole cost and expense, promptly remove any Equipment Hopkins elects not to purchase at the conclusion of the Evaluation Period, without any further obligation to Hopkins.
4. Purpose. The Equipment is provided to Hopkins, at no cost, for evaluation purposes only, to enable Hopkins to determine whether it meets its clinical and patient care needs. Equipment is delivered without commitment, risk, or obligation on the part of Hopkins. At the conclusion of the Evaluation Period, the Equipment will either be purchased (under a separate purchase agreement if required by Hopkins) or returned to Vendor, at Vendor’s expense.
5. Vendor Responsibilities. Vendor agrees to: (i) deliver the Equipment described on the Purchase Order at no cost or expense to Hopkins; (ii) install the Equipment or provide installation instructions to Hopkins; (iii) provide training or instructions regarding the Equipment’s operation to Hopkins personnel; (iv) provide a toll-free hotline number for technical assistance; (v) insure that any patient information that may be stored on the Equipment during the Evaluation Period will be expunged once the Evaluation Period terminates and the Equipment is returned to Vendor; (vi) provide all maintenance, repair, or replacement services at no cost or expense to Hopkins; and (vii) provide, at no charge to Hopkins, the number of disposable products needed for Hopkins to be able to evaluate the Equipment.
6. Vendor Warranties and Indemnities. Vendor represents and warrants, as follows: (i) the Equipment, including any component or sub-assembly thereof, or any software embedded therein, shall be delivered free of any rightful claim by any third party of infringement or misappropriation of any United States patent, copyright, trade secret or other intellectual property right; (ii) Vendor is not an “excluded provider” as defined in Sections 1128 and 1128A of the Social Security Act (42 U.S.C. 1320a-7a); and (iii) all patient information will be expunged from any Equipment (including software associated with its operation) upon return to Vendor. Vendor agrees to indemnify, defend and hold Hopkins, its trustees, directors, officers, contractors, employees and agents harmless from and against any and all liability, losses, damages, costs and expenses (including reasonable attorney fees and court costs) arising out of or resulting from: (i) any breach of the foregoing warranties; (ii) claims by third persons asserted against Hopkins that the Equipment has caused damage to property or bodily injury (including death); (iii) the acts or omissions of Vendor, its agents or employees, in connection with this Agreement; (iv) any defects in the Equipment. Vendor warrants that neither it nor any of those workers which it shall provide to Hopkins pursuant to the Agreement are sanctioned or excluded from any federally funded health care programs as provided in Sections 1128 and 1128A of the Social Security Act (42 U.S.C. 1320a-7a). Vendor further warrants that it checks the excluded provider list found at http://oig.hhs.gov and the Systems for Awards Management (SAM) listing www.SAM.gov for excluded employees and entities upon hiring or contracting with a temporary worker and on an annual basis thereafter. Vendor agrees that it will notify Hopkins immediately in the event it or any of the workers it has provided to Hopkins become sanctioned or excluded from any federally funded health care programs. Such notification shall include the grounds for sanction or exclusion and the duration thereof. The provisions of this Section 6 shall survive termination of this Agreement.
7. Compliance with Laws. Vendor shall comply with all applicable Federal, State, and local laws, rules, regulations, and ordinances, and represents that it has obtained all licenses and permits required by law to perform its obligations hereunder. Vendor hereby represents and warrants that all Equipment have received FDA clearance and/or approval, and that copies of the clearance/approval documentation issued to Vendor by the FDA will be provided to Hopkins upon Hopkins’ request.
8. Title. Title to Equipment and risk of loss shall at all times remain with Vendor during term of this Agreement.
9. Insurance. Vendor shall carry and at all times maintain in full force and effect, at its sole expense, policies of commercial general liability and product liability insurance in the minimum amount of Five Million Dollars ($5,000,000) for each claim for each policy year. Commercial general liability insurance policies, shall include, but not be limited to, coverage for the indemnity provisions contained in this Agreement. Vendor shall maintain in full force and effect, during the Term of this Agreement, at its own expense, cyber liability insurance in the minimum amount of One Million Dollars ($1,000,000) per occurrence and in the aggregate covering network security and privacy risks, including but not limited to, unauthorized access, failure of security, breach of privacy perils, wrongful disclosure, collection, or other negligence in the handling of Hopkins data and confidential information, and including coverage for related notification costs and regulatory defense and penalties.
10. License to Software. Vendor hereby grants to Hopkins a non-exclusive, nontransferable, royalty-free, right and license to use any software and its accompanying documentation delivered with or embedded in the Equipment during the Evaluation Period.
11. Confidential Information. Confidential information means any data or information disclosed by one party to the other party that is not generally known to the public and is identified as confidential or by its nature or under the circumstances surrounding its disclosure should be reasonably considered confidential (“Confidential Information”). Each party agrees to hold the Confidential Information of the other party in strict confidence and to protect it from disclosure with the same degree of care that it uses to protect its own information of like importance. Each party shall limit the disclosure of Confidential Information to employees who have a reasonable need to know and who are under a duty of confidentiality no less restrictive than the obligations set forth herein. The parties acknowledge that the terms of this Agreement are to be considered as Confidential Information and Vendor may not disclose the participation of Hopkins in this Agreement without the written permission of Hopkins, which consent may be withheld at the sole discretion of Hopkins. The provisions of this Section 12 shall survive termination of this Agreement. Vendor acknowledges and agrees that it is subject to and shall comply with the Maryland Personal Information Protection Act under Section 14-3501, et seq., of the Commercial Law Article of the Annotated Code of Maryland. Vendor shall comply with the requirements of the Health Information Technology for Economic and Clinical Health (HITECH) Act and its implementing regulations as and when applicable to Vendor as a Business Associate. Vendor further covenants not to disclose or otherwise make known to any party nor to issue or release for publication any articles or advertising or publicity matter relating to this Agreement in which the name of Hopkins or any of its affiliates is mentioned or used, directly or indirectly, unless prior written consent is granted by Hopkins.
12. Governing Law and Forum. This Agreement shall be governed in all respects by the laws of the State of Maryland without regard to the conflicts of law principles. All disputes arising under this Agreement shall be brought exclusively in the state and federal courts located in Howard County, Maryland, and Vendor hereby submits to the personal jurisdiction of the above stated courts. The provisions of this Section 13 shall survive termination of this Agreement. EACH PARTY, FOR ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THE AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
13. Notice. All notices and other communications required hereunder must be in writing and sent to the parties at the addresses on the Purchase Order, with a copy to The Johns Hopkins Health System Corporation at: 733 N. Broadway, Suite 102, ATTENTION: General Counsel, Baltimore, Maryland 21205. Recall Notice: In the event of any recall notice issued by the Vendor or the FDA, Vendor shall send such notice to The Johns Hopkins Health System Corporation, Attention: Risk Management Department, Facsimile Number 410-955-0636. The provisions of this Section 13 shall survive termination of this Agreement.
14. Vendormate Registration. All Vendor representatives are required to register with Vendormate in order to begin or continue doing business with Hopkins. Go to http://ssc.jhmi.edu/supplychain/vendors/jhhs/registration2.html to register Page 2 your company, create a representative profile and complete the registration process. Please contact Vendormate customer support at (888) 476-0377 with any questions.
15. Conflict. THESE TERMS SHALL SUPERSEDE ANY AND ALL TERMS AND CONDITIONS SET FORTH IN VENDOR’S INVOICE OR POLICY OR ANY OTHER AGREEMENT, INCLUDING VENDOR’S PRICE QUOTATION OR PROPOSAL, AND IN THE EVENT OF ANY CONFLICT BETWEEN ANY SUCH TERMS AND CONDITIONS, THE AGREEMENT SHALL APPLY.
16. Access to Books and Records. Pursuant to 42 U.S.C. 1395x(1)(I)and 42 C.F.R.§ 420.302, if the value or cost of Equipment or services rendered to Hopkins by Vendor or by an organization related to Vendor is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Vendor and Hopkins agree that until the expiration of four (4) years after the furnishing of such Equipment or services, Vendor and Hopkins shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the "Secretary"), the Secretary's duly authorized representative, the Comptroller General, or the Comptroller General's duly authorized representative, such books, documents and records as may be necessary to certify the nature and extent of the costs of such Equipment or services.
17. Affirmative Action. The Vendor 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.

The following terms and conditions (“Terms”) are attached to or referenced and made a part of the applicable purchase order (“Purchase Order”) issued by The Johns Hopkins Health System Corporation or its affiliate referenced therein (“Customer”) and apply to Services, as hereinafter defined, provided by the vendor identified on the attached service agreement and/or Purchase Order (“Vendor”). These Terms amend the attached service agreement which is being entered into simultaneously with these Terms (such service agreement, as amended herein, referred to as the “Agreement”).

1. Warranties.
   1. Vendor will perform all services (the “Services”) with promptness and diligence and executed in a professional manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services.
   2. Vendor will provide all Services necessary to maintain the equipment and all software licensed or sublicensed from Vendor for use with the equipment that are covered under the Agreement (the foregoing equipment and software are referred to collectively as the “Equipment”) in good and safe operating condition in accordance with the original manufacture specifications(the “OEM Specifications”). The term “Vendor Software,” when used in these Terms, refers specifically to the software licensed or sublicensed from Vendor.
   3. Vendor warrants that neither it nor any of those workers which it shall provide to Customer pursuant to the Agreement are sanctioned or excluded from any federally funded health care programs as provided in Sections 1128 and 1128A of the Social Security Act (42 U.S.C. 1320a-7a). Vendor further warrants that it checks the excluded provider list found at http://oig.hhs.gov and the Systems for Awards Management (SAM) listing www.SAM.gov for excluded employees and entities upon hiring or contracting with a temporary worker and on an annual basis thereafter. Vendor agrees that it will notify Customer immediately in the event it or any of the workers it has provided to Customer become sanctioned or excluded from any federally funded health care programs. Such notification shall include the grounds for sanction or exclusion and the duration thereof.
2. Fees.
   1. Any references to security interests, late payment fees, interest, or penalties in the Agreement shall be deemed deleted and of no effect.
   2. The annual service fee set forth in the Agreement is fixed for the term of the Agreement. Notwithstanding any provision of the Agreement, there shall be no increases in the annual service fee during the term of the Agreement, including, without limitation, any increases based upon a set percentage or the Consumer Price Index, Employment Cost Index, or any other index. Notwithstanding any provision of the Agreement, any increase in the annual fee after the first year shall not apply to Customer, and Customer shall pay the same annual price for each year of the term.
3. Term, Renewal Terms and Termination.
   1. The Agreement shall expire at the end of the term specified in the Agreement. Any reference to an automatic term renewal shall be deemed deleted and of no effect. At the end of the term, the parties may agree in writing to renew or otherwise extend the Agreement, and such writing shall specify the terms and conditions that will apply during the renewal or extension term.
   2. Customer shall have the right to terminate the Agreement upon thirty (30) days’ notice in the event that the Equipment is taken out of use by Customer. Vendor shall refund to Customer any prepaid Service fees, prorated based upon the period of time the Equipment was used by Customer. c. Customer shall have the right to terminate the Agreement upon written notice to Vendor in the event that the Vendor breaches the Agreement, and Vendor has failed to cure such breach within thirty (30) days after Customer has provided Vendor written notice of the breach.
4. Indemnification, Limitation of Liability.
   1. Except with respect to Vendor’s obligation to defend, indemnify and hold Customer harmless against claims or causes of action that the Services, the Equipment or the Vendor Software infringe a patent, trade secret or any other intellectual property right, neither party shall have a contractual duty to indemnify the other party. The foregoing shall not limit any claims or causes of action for indemnification or contribution that either party may have against the other under law or in equity.
   2. Notwithstanding any provision of the Agreement, any limitation of Vendor’s liability (including, without limitation, any disclaimer of liability, cap on liability or exclusion of remedies or damages available to Customer) shall not apply to any claim or cause of action for indemnification or contribution that Customer may have against Vendor, or any other liability or damages arising out of or related to Vendor’s acts or omissions that result in either: (i) damage of property; (ii) death or personal injury; and (iii) any breach of the Business Associate Agreement (assuming a Business Associate Agreement is required under the Additional Terms and Conditions set forth in Section 16).
5. Taxes. Customer is a tax-exempt corporation under Sections 501(c)(3) of the Internal Revenue Code of the United States, as amended, and under applicable state or District of Columbia laws. Vendor shall take all action required to cause the provision of Services hereunder or the purchase of any products hereunder to be treated as a tax-exempt transaction, and in no event shall Customer be responsible for any sales, use, property, gross receipts, or similar taxes levied against any party to this Agreement.
6. Notices. All notices and other communications pertaining to this Agreement shall be in writing and shall be deemed duly to have been given if personally delivered to the other party or if sent by the United States Postal Service certified mail, return receipt requested, postage prepaid, or by Federal Express, United Parcel Service, or other nationally recognized overnight carrier. All notices or communications between Customer and Vendor pertaining to this Agreement shall be addressed as follows:

   1. If to the Customer:

      The Johns Hopkins Health System Corporation
      Attention: Asst. Director, Procurement, Capital
      3910 Keswick Road, Ste. N4100
      Baltimore, MD 21211

      With a copy to:

      The Johns Hopkins Health System Corporation
      Attention: General Counsel
      733 N. Broadway Street, #102
      Baltimore, MD 21205

      If to Vendor:

      To the address set forth on the Agreement. Either party may change its notification address by giving written notice to that effect to the other party in the manner provided herein.

7. Construction and Jurisdiction. The Agreement shall be governed by the laws of the State of Maryland (excepting any conflict of laws or provisions which would serve to defeat application of Maryland substantive law). Each of Vendor and Customer hereby irrevocably and unconditionally: (a) consents to submit to the exclusive jurisdiction of the courts of Howard County, Maryland for any proceeding arising in connection with the Agreement and each such party agrees not to commence any such proceeding except in such courts, and (b) waives any objection to the laying of venue of any such proceeding in the courts of Howard County, Maryland. If for any reason venue is not accepted in Howard County, the parties irrevocably consent as provided in this Section to the exclusive jurisdiction of the courts of Baltimore County, Maryland. EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THE AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
8. Insurance. Vendor shall carry and at all times maintain in full force and effect, at its sole expense, policies of general liability and product liability insurance in the minimum amount of Five Million Dollars ($5,000,000) for each claim for each policy year resulting, directly or indirectly, from the intentional or negligent acts of Vendor in connection with the performance of its obligations under this Agreement.
9. Publicity. Vendor agrees that no public or private announcements, media releases, press conferences, advertising or similar publicity in any form relating to the Customer’s name, image, or logo (or any variation or combination of such name, image, or logo), as well as the name or image of any employee or patient of Customer shall be made without the prior written consent of Customer, which consent may be withheld in the Customer’s sole discretion.
10. Approval of Subcontractors. Vendor shall not use any subcontractors without the prior written consent of Customer, which may be withheld in Customer’s sole discretion.
11. Compliance with Laws. Vendor shall perform this Agreement in compliance with all applicable Federal, State, and local laws, rules, regulations, and ordinances, and represents that it shall have obtained all licenses and permits required by law to engage in the activities necessary to perform its obligations under this Agreement.
12. Affirmative Action. It is the policy of Customer to provide equal job opportunities to all people. Customer prohibits discrimination and maintains a written Affirmative Action Plan designed to ensure equal employment opportunities based on race, color, religion, sex, national origin, and status as a qualified individual with a disability or a protected veteran. Customer incorporates by reference into these Terms all applicable requirements (as amended) mandated by the Office of Federal Contract Compliance Programs (“OFCCP”) of the U.S. Department of Labor for federal government contractors pursuant to Executive Order 11246, the Rehabilitation Act of 1973, Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act (“VEVRAA”). In addition, retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes any employment practice covered by OFCCP.
13. Vendor Credentialing Programs. All Vendor representatives are required to register in order to begin or continue doing business with Johns Hopkins Medicine. Go to http://ssc.jhmi.edu/supplychain/vendors/jhhs/registration2.html to register your company, create a representative profile and complete the registration process. Please contact customer support at (888) 476-0377 with any questions.
14. Remainder of Agreement in Effect. These Terms supersede the terms and provisions of the Vendor’s service agreement. All other terms and provisions of the Vendor’s service agreement shall remain unchanged, and the Vendor’s service agreement, as specifically amended, restated, and/or supplemented by these Terms, shall be in full force and effect.
15. GPO Contract. In the event Vendor and a group purchasing organization (“GPO”) of which Customer is a member, enters into a master agreement or pricing agreement governing the purchase and sale of any or all the Equipment and/or Services hereunder (the “Master Agreement”), Vendor agrees that Customer shall have the option, in Customer’s sole discretion and upon prior notice to Vendor and on a prospective basis only, to (i) continue this Agreement, but to adjust the pricing hereof to reflect the pricing set forth in the Master Agreement, without any penalty, or (ii) terminate this Agreement, without any penalty, and enter into the Master Agreement.
16. PHI and Business Associate Agreement. If the Equipment processes or stores Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)), Customer and Vendor shall execute a Business Associate Agreement. Vendor agrees to comply with the Maryland Personal Information Protection Act under Section 14-3501 et seq. of the Commercial Law Article of the Maryland Annotated Code (and/or the equivalent act of the state or District of Columbia law which governs this Agreement pursuant to section 10).
17. Vendor Software. If the Equipment has Vendor Software, then Vendor will use it best efforts to test any software provided by Vendor to detect and remove any viruses or other malware that could have an adverse impact on the Vendor Software or the Equipment. If Vendor introduces a virus or other malware into the Vendor Software, the Vendor will, at its sole cost and expense, remediate the effects of the virus or malware, including restoring any lost data, such that the Equipment and Vendor Software operates in accordance with the OEM specifications.
18. Remote Access. If the Equipment is connected to the Customer’s network, then throughout the term of this Agreement, the Vendor shall always comply with the Customer’s then current Remote Access Policies, which Customer will make available upon Vendor’s request.
19. On-Site Services. If Vendor personnel will provide Services onsite, then Vendor agrees that it shall perform a criminal background check on all such personnel prior to their providing on-site services. Vendor shall not assign any personnel who has been convicted or charged with a felony to perform Services at Customer’s site unless Vendor has fully disclosed the conviction or felony charge to Customer and Customer consents to the assignment. 3 C:\Users\Dtayl103\Desktop\PO JHHS Terms And Conditions To Amend Service Agreement FINAL 3-31-18.Docx
20. Equipment Loaner Program. If feasible, Equipment requiring Service will be shipped by Customer to Vendor’s Service Center under Vendor’s loaner program. Under this program, Customer will inform Vendor of defective Equipment in order to have a “Loaner” piece of equipment shipped to Customer within twentyfour (24) hours of such notification. Customer will have full use of the Loaner equipment until defective Equipment has been repaired or replaced and received by Customer. Vendor shall provide on a 24x7 basis a telephone number for Customer personnel to call for all purposes regarding support and maintenance. Vendor shall call back within one (1) hour of a reported problem.
21. Records. If the value or cost of Services rendered to Customer by Vendor or by an organization related to Vendor is Ten Thousand Dollars ($10,000) or more over any twelve (12) month period during the term of this Agreement, Vendor and Customer agree that until the expiration of four (4) years after the furnishing of such Services, Vendor and Customer shall, upon written request, make available to the Secretary of the Department of Health and Human Services of the United States (the “Secretary”), the Secretary’s duly authorized representative, the Comptroller General, or the Comptroller General’s duly authorized representative, this Agreement and such books, documents and records as may be necessary to certify the nature and extent of the costs of such Services. This provision shall also apply to any subcontractors Vendor hires to perform the Services hereunder.