acc

Vendor Information

VCU Health System Authority (VCUHS) General Terms and Conditions
 

Anti-Discrimination

In every contract over $10,000 the provisions in 1. and 2. below apply:
  1. During the performance of this contract, the Seller agrees as follows:
    1. The Seller will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the Seller. The Seller agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.
    2. The Seller, in all solicitations or advertisements for employees placed by or on behalf of the Seller, will state that such Seller is an equal opportunity employer.
    3. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting these requirements.
  2. The Seller will include the provisions of 1. above in every subcontract or purchase order over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

In every contract over $50,000 the provisions in 1. and 2. below apply:

  1. Each non-construction subcontractor must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and:
    1. Has a subcontract of $50,000 or more; or
    2. Has Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or
    3. Serves as a depository of Government funds in any amount; or
    4. Is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
  2. The affirmative action programs required under this section must be developed within 120 days from the commencement of a covered contract and must be updated annually.
For additional obligations that may apply to purchases of $50,000 or more, including annual EEO-1 Report, VETS-4212 Report and affirmative action plan (AAP) requirements, please see 41 CFR 60-1.2, 60-1.7, 60-1.12, 60-2.1, 41 CFR Part 61-300 and 29 CFR §1602.7. Also, under 29 CFR §10.11(a) and §10.21, you may be covered by the minimum wage obligations of Executive Order 13658.
 

Antitrust

By entering into a contract and/or purchase order, Seller conveys, sells, assigns, and transfers to VCUHS all rights, title and interest in and to all causes of the action it may now have or hereafter acquire under the antitrust laws of the United States and the Commonwealth of Virginia, relating to the particular goods or services purchased or acquired by VCUHS under this contract and/or purchase order.
 

Antivirus

Seller shall ensure, as appropriate to the type of product being provided, that such product(s) have been checked for viruses prior to delivery to VCUHS using the latest available release in antivirus/malware protection. All connections, remote or local, to VCUHS from Seller will be accomplished through and with devices that contain the latest available release in antivirus/malware protection.
 

Applicable Laws and Courts

Seller agrees that any contract or purchase order issued by VCUHS shall be governed in all respects by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought to the Circuit Court in Richmond, Virginia. The Seller shall comply with applicable federal, state and local laws and regulations.
 

Arbitration

Seller acknowledges VCUHS will not agree to binding arbitration
 

Assignment

Seller shall not delegate any obligations, nor assign any rights or claims hereunder without the prior written consent of VCUHS, and any attempted delegation or assignment by Seller without such written consent shall be void.
 

Audit

Seller shall retain all books and records and other documents related to an awarded contract and/or purchase order for 5 (five) years after final payment or until audited by VCUHS or its authorized agent whichever is sooner. Auditors shall have full access to and the right to examine any of said materials during this period.
 

Billing and Payment

  1. To Seller:
    1. Invoices for items ordered, delivered and accepted shall be submitted by the Seller directly to VCUHS, Accounts Payable Department, Box 980648, Richmond, VA 23298-0648. All invoices shall show the contract number and/or purchase order number; social security number (for individual Sellers) or the federal employer identification number (for proprietorships, partnerships, and corporations).
    2. Any payment terms requiring payment in less than 45 days will be regarded as requiring payment 45 days after invoice or delivery, whichever occurs last. This shall not affect offers of discounts for payment in less than 45 days, however.
    3. The following shall be deemed to be the date of payment: the date of postmark in all cases where payment is made by mail.
    4. Unreasonable Charges: Under certain emergency procurements and for most time and material purchases, final job costs cannot be accurately determined at the time orders are placed. In such cases, Sellers should be put on notice that final payment in full is contingent on a determination of reasonableness with respect to all invoiced charges. Charges which appear to be unreasonable will be researched and challenged, and that portion of the invoice held in abeyance until a settlement can be reached. Upon determining that invoiced charges are not reasonable, VCUHS shall promptly notify the Seller, in writing, as to those charges which it considers unreasonable and the basis for the determination. A Seller may not institute legal action unless a settlement cannot be reached within thirty (30) days of notification. The provisions of this section do not relieve VCUHS of its 45-day prompt payment obligations with respect to those charges which are not in dispute
  2. Payment by Seller to their Subcontractor(s):
    1. The Seller is hereby obligated to
      1. To pay the subcontractor(s) within seven (7) days of the Seller’s receipt of payment VCUHS for the proportionate share of the payment received for work performed by the subcontractor(s) under the contract; or
      2. To notify VCUHS and the subcontractor(s), in writing, of the Seller’s intention to withhold payment and the reason.
    2. The Seller is obligated to pay the subcontractor(s) interest at the rate of one percent per month (unless otherwise provided under the terms of the contract and/or purchase order) on all amounts owed by the Seller that remain unpaid seven (7) days following receipt of payment from VCUHS, except for amounts withheld as stated above. The date of mailing of any payment by U. S. Mail is deemed to be payment to the addressee. These provisions apply to each sub-tier contractor performing under the primary contract. A Seller’s obligation to pay an interest charge to a subcontractor may not be construed to be an obligation of the Commonwealth or VCUHS.
    3. Each prime Seller who wins an award in which provision of a minority business procurement plan is a condition to the award, shall deliver to VCUHS, on or before request for final payment, evidence and certification of compliance (subject only to insubstantial shortfalls and to shortfalls arising from subcontractor default) with the minority procurement plan. Final payment under the contract and/or purchase order in question may be withheld until such certification is delivered and, if necessary, confirmed by VCUHS or other appropriate penalties may be assessed in lieu of withholding such payment.

Binding Effect

The terms and conditions appearing herein shall be binding and shall apply to any purchase order or contractual agreement entered into with the Seller by VCUHS. Any proposal for additional or different terms or any attempt by the Seller to vary, in any degree, any of the terms described herein shall be null, void, and without effect, and the terms provided herein shall apply.
 
In the event of a conflict between the terms set forth herein and any supplemental contract documents that may be entered into between VCUHS and the Seller, the terms set forth herein shall govern. Such terms and conditions shall not be modified or amended except by a writing signed by an authorized representative of both parties. The pre-printed terms and conditions appearing on any Seller’s quotation, invoice, or other form order documents shall be null and void. In the event that the Seller enters into terms of use agreements or other agreements or understanding, whether electronic, click-though, verbal or in writing, with VCUHS employees or other End Users, such agreements shall be null, void and without effect, and the terms herein shall apply.
 
The use of the term Seller, Vendor, Supplier, Contractor, et al. shall be synonymous in these General Terms and Conditions as well as purchase orders and other contract documents executed by the VCUHS.
 

Captions

Captions preceding particular sections are for convenience only and shall not be considered in the interpretation or construction of any contract or purchase order.
 

Changes

Changes can be made to the contract or purchase order when the parties agree in writing to modify the scope of the contract or purchase order. An increase or decrease in the price of the contract/purchase order resulting from such modification shall be agreed to by the parties as a part of their written agreement to modify the scope of the contract/purchase order.
 

Confidentiality

As a result of doing business with VCUHS, the Seller may have access to confidential or proprietary information that belongs to VCUHS or that regards patients or patient care. The Seller, its employees or agents shall not, unless required by law, disclose to any person or entity any information related to VCUHS which is proprietary or confidential and/or pertains to patients or patient care. VCUHS may exercise its right to seek legal remedies available to it should such disclosures occur.
 

Contractual Disputes

Contractual claims, whether for money or other relief, shall be submitted in writing to the VCUHS’ Purchasing Department no later than sixty days after final payment; however, written notice of the Seller’s intention to file such a claim shall have been given at the time of the occurrence or beginning of the work upon which the claim is based. Nothing herein shall preclude a contract and/or purchase order from requiring submission of an invoice for final payment within a certain time after completion and acceptance of the work or acceptance of the goods. Pendency of claims shall not delay payment of amounts agreed due in the final payment. A Seller may not institute legal action prior to receipt of the VCUHS’ decision on the claim, unless VCUHS fails to render such a decision within forty-five days. The decision of VCUHS shall be final and conclusive unless the Seller, within six months of the date of the final decision on the claim, institutes legal action. Furthermore, Seller acknowledges VCUHS will not agree to arbitration or to the decision of any arbitration board, commission, panel, or other entity.
 

Deficit Reduction Act (DRA)

  1. Exclusion for Federal Health Care Programs:
    1. Attestation of Non-Exclusion: Seller represents that it and its officers, directors, trustees, employees, subcontractors and agents (i) have not been excluded from participation in any Federal or State Health Care Program; (ii) are not about to be excluded from participation in any Federal or State Health Care Program; and (iii) have not received notice of any investigation which may result in exclusion from participation in any Federal or State Health Care Program.
    2. Disclosure Requirements: In the event Seller receives notice that it or any of its officers, directors, trustees, employees, subcontractors or agents (i) have been, or will be, excluded from any Federal or State Health Care Program, or (ii) will be investigated for possible exclusion from participation in any Federal or State Health Care Program, Seller shall provide VCUHS with a written report of such exclusion or investigation without unreasonably delay, but in no event later than three (3) days following receipt of such notice. The written report shall contain, at a minimum, the date of the exclusion, reason for the exclusion, and sufficient demographic details (e.g., name, address, date of birth, social security number, etc,) of the excluded party to validate the exclusion. Seller shall provide written notice to the following address: VCUHS, Director of Purchasing, 830 East Main St. Suite 1601, Box 980024, Richmond, VA 23298
    3. Termination of Contract and/or Purchase Order: In the event that Seller or any of its officers, directors, trustees, employees, subcontractors or agents is excluded from any Federal or State Health Care Program, VCUHS may immediately terminate any and all Agreements with Seller in its sole and absolute discretion.
    4. Indemnification: If Seller or any of its officers, directors, trustees, employees, subcontractors or agents is excluded from a Federal or State Health Care Program and Seller fails to notify VCUHS in accordance with paragraph 1(B) herein, Seller shall, to the fullest extent permitted by law, protect, defend, indemnify and hold harmless VCUHS and its respective employees, officers, directors, trustees, affiliates, and agents (“Indemnitees”) from and against any and all losses, costs, penalties, fines, demands, liabilities, legal actions, judgments, and expense of every kind (including reasonable attorney’s fees, including at trial and on appeal) asserted or imposed against any Indemnitee arising out of such failure to report.
  2. Deficit Reduction Act Compliance: In accordance with the federal Deficit Reduction Act, VCUHS is required to inform its Sellers about the federal False Claims Act, the Virginia Fraud Against Taxpayers Act, and VCUHS’ policies to protect whistleblowers and detect and prevent fraud, waste and abuse. Information about the Deficit Reduction Act, federal and state false claims laws, and relevant VCUHS policies are provided in VCUHS’ Compliance and Privacy Manual (“Manual”) and on the VCUHS Deficit Reduction Act web site. Sellers may download a copy of the Manual at VCUHS’ Deficit Reduction Act.
 

Delivery

Goods or services delivered must be strictly in accordance with specifications referred to by VCUHS and shall not deviate in any way from terms, conditions or specifications of the contract and/or purchase order purchase order. Equipment, materials and/or supplies delivered on this order shall be subject to inspection and test upon receipt. If rejected, same shall remain the property of the Seller. Seller must notify the VCUHS Purchasing Department of any anticipated delays in delivery or performance. In case of default by the Seller, or failure to deliver the supplies/services ordered by the time specified, VCUHS, after due notice (oral or in writing), may procure them from other sources and hold Seller responsible for any excess cost occasioned thereby. 
 
Unless otherwise indicated, Delivery shall be F.O.B. Destination and Seller certifies and warrants that the price offered for F.O.B. destination includes only the actual freight rate costs at the lowest and best rate and is based upon the actual weight of the goods to be shipped. When freight cost are contractually allowed and applied by Seller, VCUHS strongly encourages Sellers to ship using its third party freight agreement by shipping freight collect via UPS account number 887FR6. (Any shipments over 150 pounds need to have special routing instructions and Seller may contact TRIOSE, at 866-241-2268 extension 204, to obtain routing information.) 
 
Except as otherwise specified by VCUHS, standard commercial packaging, packing and shipping containers shall be used. Regardless of the shipping method or F.O.B. point, risk of loss or damage to the goods to be delivered shall remain with the Seller until VCUHS’ receipt of the goods. All shipping containers shall be legibly marked or labeled on the outside with purchase order number, and container(s) shall include packing slip(s) adequately showing the purchase order number, exact quantity, and description of the goods shipped.
 

Discount

Discount date or due date will be calculated from date invoice is received by VCUHS.
 

Drug Free and Tobacco Free Workplace

During the performance of any contract or purchase order issued by VCUHS to Seller, Seller agrees to (i) provide a drug-free workplace for the Seller’s employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the Seller’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; (iii) state in all solicitations or advertisements for employees placed by or on behalf of the Seller that the Seller maintains a drug-free workplace; and (iv) include the provisions of the foregoing clauses in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or Seller.
  1. For the purposes of this section, “drug-free workplace” means a site for the performance of work done in connection with a specific contract and/or purchase order awarded to a Seller, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract and/or purchase order.
  2. During the performance of the contract and/or purchase order, the Seller acknowledges VCUHS’ Tobacco Free Policy and agrees to abide by its requirements prohibiting the use of any tobacco containing product in and around any VCUHS facility, including all satellite locations and outlying clinics. This includes all interior spaces of buildings and offices as well as on the sidewalks, roadways and grassy areas next to any VCUHS facility location.
  3. The Seller further acknowledges and certifies that it understands that a violation of these prohibitions constitutes a breach of contract and/or purchase order and may result in default action being taken by VCUHS in addition to any criminal penalties that may result from such conduct.

Drug Testing/Background Checks/Orientation

Only applicable when Seller is performing work on-site at VCUHS:
  1. Drug Testing: Seller acknowledges and certifies that appropriate drug testing shall be performed on any and all employees of the Seller, his subcontractors, and/or agents who will perform the services defined in the contract and/or purchase order, and testing will be done before such persons begin work on VCUHS premises. Upon VCUHS’ request, Seller shall immediately submit any or all the test results to VCUHS. Appropriate drug testing is defined as a 9-panel drug screen performed by a lab accredited by the Department of Health and Human Services (NIDA Labs) and the College of American Pathologists specifically in Forensic Urine Drug Testing. The 9-panel drug screen includes testing for:
  • opiates
  • phencyclidine 
  • amphetamines
  • methadone
  • marijuana
  • barbiturates
  • cocaine
  • benzodiazepine
  • propoxyphene
  1. Criminal Background Check: Seller agrees to perform a criminal background investigation in 1) the state of permanent residence, 2) Virginia, 3) each state in which the Seller’s personnel assigned to a VCUHS engagement has lived or worked within the past seven (7) years. The Seller’s assigned personnel (to include any subcontractors) shall have no convictions in the past seven (7) years for crimes related to drugs, sex offenses, theft, or violence. As required by law, for certain positions VCUHS may request additional background checks such as fingerprinting, affirmation statement regarding pending charges, confirmation for the Child Protective Services of the Department of Social Services that the candidate has no confirmed record of child abuse or neglect, and shall have no convictions as outlined in Virginia Codes 63.1-248-7:2. Upon VCUHS’ request, Seller shall immediately submit any or all the results to VCUHS.
  2. Orientation: VCUHS requires Seller’s personnel who are to be engaged at VCUHS for more than twelve-weeks attend eight hours of central orientation prior to commencement of work. The eight hours of central orientation shall be paid by the Seller. Orientation occurs on the VCUHS campus in Richmond, VA. VCUHS may, at its option, allow the Seller’s personnel to complete the orientation requirements through a self-paced study guide and successful completion of a short competency test. The orientation and competency test will be arranged by the VCUHS manager requesting the services of the contract and/or purchase order.
  3. Seller further acknowledges and certifies that it understands that a violation of these prohibitions of this Section constitutes a breach of contract and/or purchase order and may result in default action being taken by VCUHS in addition to any criminal penalties that may result from such conduct.

 

Ethics in Public Contracting

Seller certifies that any contract and/or purchase order awarded by VCUHS is made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other Seller, manufacturer or subcontractor in connection with this contract and/or purchase order, and that the Seller has not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value was exchanged.
 

Equal Opportunity

VCUHS is an equal opportunity employer and complies with the applicable provisions of Executive Order 11246, Title VII of the Civil Rights Act of 1964, Section 503 of the Rehabilitation Act of 1973 and the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as those laws have been most recently amended.  Seller agrees to comply with these laws, and their equal employment opportunity clauses, embodied at 41 CFR 60-1.4(a), 60-250.5(a), 60-300.5(a) and 60-741.5(a), as applicable. Seller further certifies to VCUHS they will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, as well as the Virginia Fair Employment Contracting Act of 1975, as amended, where applicable, the Virginians With Disabilities Act, the Americans with Disabilities Act, and the Notice Clause of Executive Order 13496 regarding Employee Rights under the National Labor Relations Act (NLRA) (29 CFR Part 471, Appendix A to Subpart A). If/as applicable, Seller makes the following additional affirmation:
 
This Seller and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
 

Equal Opportunity

VCUHS is an equal opportunity employer and complies with the applicable provisions of Executive Order 11246, Title VII of the Civil Rights Act of 1964, Section 503 of the Rehabilitation Act of 1973 and the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as those laws have been most recently amended.  Seller agrees to comply with these laws, and their equal employment opportunity clauses, embodied at 41 CFR 60-1.4(a), 60-250.5(a), 60-300.5(a) and 60-741.5(a), as applicable. Seller further certifies to VCUHS they will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, as well as the Virginia Fair Employment Contracting Act of 1975, as amended, where applicable, the Virginians With Disabilities Act, the Americans with Disabilities Act, and the Notice Clause of Executive Order 13496 regarding Employee Rights under the National Labor Relations Act (NLRA) (29 CFR Part 471, Appendix A to Subpart A).. If/as applicable, Seller makes the following additional affirmation:
 
This Seller and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
 

Evaluation of Products/ Equipment

Seller acknowledges that for any request by VCUHS to evaluate Seller’s products or equipment the following stipulations shall apply in addition to the other terms provided herein:
  1. Seller shall ensure that proper instruction and training in the use of the equipment or product is provided to all staff involved in the evaluation, to include safety care and maintenance;
  2. All electrical/electronic-powered equipment must be inspected and approved by the VCUHS Clinical Engineering department prior to use;
  3. Seller shall indemnify and hold harmless VCUHS and it employees from any liability caused by malfunction of the equipment or products. Furthermore, although VCUHS will make all reasonable effort to prevent damage or loss, VCUHS disclaims any responsibility for damage or loss of the equipment or products during the evaluation period;
  4. Seller understands VCUHS has no obligation to purchase the products or equipment being evaluated, or for any supply items or accessories associated with the equipment. Seller further understands that all purchase offers must be made only to the VCUHS Purchasing Department;
  5. All disposables, accessories and equipment necessary to conduct the evaluation for the time specified shall be provided at no charge by the Seller to VCUHS. Furthermore, VCUHS has no responsibility for any costs associated with transportation or installation;
  6. Seller agrees to promptly remove the equipment, or unused products not owned by VCUHS at the conclusion of the evaluation period;
  7. Unless specifically agreed to in writing by VCUHS, information related to this evaluation may not be used in any sales promotion or sales efforts by the Seller.

 

Evaluation of Services

VCUHS maintains deemed status with the Centers for Medicare & Medicaid Services (CMS) by maintaining accreditation with The Joint Commission (TJC) for some departments while CMS certifies others directly.  Seller understands and acknowledges that as a leading academic medical center, VCUHS may periodically monitor and evaluate Seller’s services to VCUHS to determine if such services, in VCUHS’ sole opinion, are provided safely, effectively and in compliance with TJC standards and CMS requirements.  VCUHS participates in The Joint Commission accreditation and CMS certification process which requires VCUHS to maintain oversight of contracted services through the selection of indicators to assess Seller services for safety, quality and compliance with applicable hospital TJC standards and CMS Conditions of Participation. Sellers can expect to be evaluated based on:
  1. Quality of Service/Equipment/Product
  2. Quality/Competency of Seller Personnel and Representatives
  3. Responsiveness to Issues
  4. Timeliness/Reliability of Services
  5. Adherence to applicable:
    1. Regulatory Standards
    2. VCUHS Human Resource Requirements as outline in the agreement with VCUHS, and
    3. other pertinent VCUHS Policies and Procedures, and
  6. Other relevant criteria as the parties may mutually agree upon.
As a result of the evaluation, should VCUHS determine Seller has not successfully met the above requirements and standards, VCUHS shall provide written notice to Seller, and if Seller does not cure the deficiency within thirty (30) days of receipt of notice to the reasonable satisfaction of VCUHS, VCUHS shall have, at its discretion, the right to terminate this Agreement immediately.
 

Extra Charges

No extra charges of any kind will be permitted unless specifically agreed to in writing by VCUHS.
 

FDA Compliance

Seller shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances and represents that is shall have obtained all licenses, permits, required by law to engage in the activities necessary to perform its obligations to VCUHS. Seller hereby represents and warrants that all Products provided to VCUHS shall have appropriate documentation in conjunction with FDA regulations, and copies of the approval or clearance documentation issued to Seller by the FDA will be immediately provided to VCUHS upon request.
 

FDA Recall of Products

If recall or modification of any of the Seller provided product(s) is required by the FDA or voluntarily recommended or required by the Seller, Seller shall, at its sole cost and expense, immediately notify VCUHS in writing of such recall or modification, remove, package, and ship to Seller’s or Seller’s contractor’s plant the affected Product(s) and at no additional charge to VCUHS replace such Product(s) with Seller’s products which have been evaluated and accepted by VCUHS as clinically comparable. All recall notices must be sent to VCUHS, Director of Risk Management, Box 980510, Richmond, VA 23298.
 

Force Majeure

VCUHS may delay delivery and /or acceptance occasioned by causes beyond its control.
 

Gifts, Gratuities

Seller acknowledges VCUHS’ policy that no Seller shall offer any gift, gratuity, favor or advantage of any kind to any employee of VCUHS who exercises procurement responsibility, develops procurement requirements, evaluates procurements, or otherwise influences procurement decisions. Furthermore, no monies or anything of value may be offered or paid to any individual at VCUHS regardless of the purpose, unless approved in writing by the Vice President of Support Services and Planning or designee. Failure to comply with this policy may result in debarment of the Seller, in total or part, at the sole discretion of VCUHS.
 

HIPAA

The health information of patients is strictly regulated by the Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (HIPAA) and regulations promulgated thereunder (45 CFR Parts 160-164) by the US Department of Health and Human Services (the “Privacy and Security Rules”), Title XII, Subtitle D the Health Information Technology for Economic ad Clinical Health Act provisions of the American Recovery & Reinvestment Act of 2009, 42 USC §§ 17921-17954 (“HITECH”), and other applicable laws (together referred to herein as “Privacy and Security Law”). If the Seller providing goods or services to VCUHS will receive, create, or come into non-incidental contact with patients’ Protected Health Information (PHI) as that term is defined in 45 C.F.R. Section 160.103 (individually identifiable health information of patients of VCUHS), the Seller is a Business Associate, and agrees to abide by HIPAA and Federal confidentiality requirements.
 

Immigration Reform and Control Act of 1986

Seller certifies that they do not and will not during the performance of this contract and/or purchase order employ illegal alien workers or otherwise violate the provisions of the federal Immigration Reform and Control Act of 1986.
 

Indemnification

Seller agrees to indemnify, defend and hold harmless VCUHS, the Commonwealth of Virginia, its officers, agents, and employees from any claims, damages and actions of any kind or nature, whether at law or in equity, arising from or caused by the use of any materials, goods, equipment of any kind or nature furnished by the Seller/any services of any kind or nature furnished by the Seller, provided that such liability is not attributable to the sole negligence of VCUHS or to failure of VCUHS to use the materials, goods, or equipment in the manner already and permanently described by the Seller on the materials, goods or equipment delivered.
 
Seller acknowledges that due to VCUHS’ political subdivision status with the Commonwealth of Virginia, VCUHS cannot indemnify or hold harmless the Seller for any act or omission and VCUHS does not have the right to waive the sovereign immunity of the Commonwealth of Virginia.
 

Inspection/Testing/Qualifications

VCUHS reserves the right to conduct any test/inspection it may deem advisable to assure goods and services conform to the specifications. VCUHS may make reasonable investigation as deemed necessary to determine the ability of the Seller to perform services/furnish goods and Seller shall furnish such information in a timely manner. VCUHS reserves the right to inspect Seller’s physical facilities prior to award of contract/purchase order to satisfy questions regarding Seller’s capabilities.
 

Insurance

Seller shall (and shall require its subcontractors to), throughout the Term of the Contract or Purchase Order, including any renewal terms, maintain sufficient coverage to insure all its duties and responsibilities under the Contract or Purchase Order. Seller hereby certifies that it and any of its subcontractors under the Contract or Purchase Order will maintain these insurance coverages during the entire term of the Contract or Purchase Order and that all insurance coverage will be provided by insurance companies authorized to sell insurance in Virginia by the Virginia State Corporation Commission and have a financial rating of A- or better by the AM Best and a financial size category of VIII. Seller shall insurance that all subcontractors have the same insurance as required of the Seller under any contract or purchase order.
 
MINIMUM INSURANCE COVERAGES AND LIMITS REQUIRED:
  1. Workers’ Compensation: Seller shall maintain statutory Virginia Workers’ Compensation coverage in accordance with the Virginia Code §11-46.3 and 65.2-008 for all its employees who will be engaged in the performance of the contract or purchase order. Seller shall insure that its Workers’ Compensation and Employer’s Liability carrier shall waive rights of subrogation against VCUHS Authority, its subsidiaries, affiliates, directors, officers, and employees (the “Insured Parties”)
    • AGENCY STAFF: When Seller is providing leased staffing to VCUHS and/or its affiliates, “insured Parties” shall be named as an “alternate employer” on the Seller’s Workers’ Compensation policy.
    • EMPLOYER LIABILITY: Seller shall also maintain Employer’s Liability coverage in the performance of the Contract or Purchase Order, including special coverage extensions where applicable. Employer’s liability minimums of One Million Dollars ($1,000,000) are required.
  2. Commercial General Liability: Seller agrees to maintain at its sole cost and expense, a minimum commercial general liability coverage limit of One Million Dollars ( $1,000,000) per occurrence with Three Million Dollars ( $3,000,000) general aggregate, including at least One Million Dollars ($1,000,000) Personal and Advertising Injury limit and at least One Million Dollars ( $1,000,000) for Property Damage when Seller is leasing premises from VCUHS and/or its affiliates.
  3. Umbrella or Excess Coverage: Seller shall also maintain Umbrella Coverage with a minimum limit of Three Million Dollars ($3,000,000) in the same form as the Commercial General Liability policy.
  4. Automobile Liability: Seller, when driving in performance of the Contract or Purchase Order, agrees to maintain at its sole cost and expense, a minimum Automobile Liability coverage of One Million Dollars ($1,000,000). “Insured Parties” shall be an ‘additional insured’ with respect to liability arising out of the performance of the Contract and/or Purchase Order.
  5. Crime: Seller, when Sellers employees or subcontractors are on VCUHS or its affiliates premises -or- enters into VCUHS’ patients residences, agrees to maintain, at its sole cost and expense, a minimum Crime Liability coverage limit One Hundred Thousand Dollars ($100,000) per occurrence. Seller agrees the deductible on this policy shall not exceed Five Thousand Dollars ($5,000), coverage shall include theft of client or customer property “third party coverage” and coverage shall be for the benefit of VCUHS and its affiliates.
  6. Professional Crime: Seller, when Seller’s employee or subcontractors are involved with the handling or movement of assets, investments, or funds for VCUHS and/or its affiliates, agrees to maintain, at its sole cost and expense, a minimum Crime Liability Coverage limit of Five Million Dollars ($5,000,000) per occurrence. Seller agrees that the deductible on this policy shall not exceed Five Thousand Dollars ($5,000), coverage shall include theft of client or customer property “third Party coverage” and coverage shall be for the benefit of VCUHS and its affiliates.
  7. Healthcare Professional Liability*/Medical Malpractice (when Seller is providing services that fall under the Virginia Medical Malpractice Act (§ 8.01 – 581.1 et seq): Seller agrees to maintain, at its sole cost and expense, Healthcare Professional Liability coverage (with appropriate tail coverage if a claims made policy) in the amount of the applicable limitation of liability in medical malpractice actions in Virginia that is in effect at the time of the incident (see Virginia Code § 8.01-581.15, as amended) with an annual aggregate of three times this amount. Seller agrees the deductible on this policy shall not exceed Ten Thousand Dollars (410,000)
  8. Professional Liability (when Seller is providing professional services such as accounting services, legal services, consulting services, architects or engineers, etc.): Seller agrees to maintain, at its sole cost and expense, Professional Liability coverage (with appropriate tail coverage is a claims-made policy) in the amount of Five Million Dollars ($5,000,000). Seller agrees the deductible on this policy shall not exceed Ten Thousand Dollars ($10,000).
  9. Cyber Liability/Network Liability Insurance (when Seller is providing IT services, HIPPA related services, accesses or exchanges PI/Protected Information, or provides other services that have direct access to or interface with VCUHS’ IT systems): Seller shall maintain Cyber Liability Coverage with a minimum limit of Five Million Dollars ($5,000,000)
  10. Tail Insurance Coverage: In the event any of the above insurance policies are written on a Claims Made basis or change from or to a Claims Made basis from an Occurrence basis during the term of the Contract or Purchase Order, Seller agrees to maintain appropriate coverage in the amounts stated above from a period of not less than five (5) years from the date the Contract or Purchase Order is terminated by purchasing appropriate tail or extended insurance coverage.
    • For *Healthcare Professional Liability coverage, written on Claims Made basis, in any of the medical practitioners treated any children under the age of eighteen (18), the Seller must provide lifetime tail coverage to recognize this open end exposure. 
  11. Proof: Seller shall provide evidence of the above insurance requirements prior to the execution of the Contract or Purchase Order. Seller agrees that it will provide thirty (30) days’ notice of cancellation or material change in coverage. Failure by Seller to provide the appropriate form and evidence of coverage does not relieve Seller of its obligations to meet the above requirement. This Insurance Section shall survive the termination of expiration of any Contract or Purchase Order.

 

Liens, Claims, Encumbrances

Seller warrants and represents that all goods will, when delivered, be clear of all liens claims and encumbrances of all kinds.
 

Limitation of Liability

Seller agrees it will not limit their liability to VCUHS for property damage or personal injury. In addition, Seller will not require VCUHS to accept liability limits below those required by the Commercial General Liability and Umbrella Coverages described in the Insurance heading.
 

Material Safety Data Sheet (MSDS)

Seller agrees to provide a current MSDS on each delivered product containing any substance defined or described by the U.S. Federal Hazard Communication Standard 1910.1200. Copies may be delivered to VCUHS, Safety Officer, Box 980320, Richmond, VA 23298.
 

Medical Devices

If Seller is providing medical devices as well as claims reimbursement services for device placement, the cost of such services is to be included in the cost of the price of the device.
 

National Fire Protection Association (NFPA)/Flame Retardant

Seller certifies that any provided products and materials shall meet the latest version of the National Fire Protection Association (NFPA) Code 701 for large and small scale test and/or NFPA 101 section 13-7.5 and section 6-6 as applicable to the product. Seller shall promptly submit written certification upon request by VCUHS.
 

Notices

Any and all notices, requests, demands, or other communications which relate to the other party’s failure to perform or which otherwise affect either party’s rights under a contract and/or purchase order established between the parties shall be deemed properly given when furnished by receipted hand-delivery to the other party, deposited with an express courier or deposited with the U.S. Postal Service (postage prepaid, certified mail, return receipt requested).Except in situations involving hand-delivery, the Seller shall address all notices, requests, demands, or other communications to the recipient at the following address: VCUHS, Director of Purchasing, 830 East Main Street, Suite 1601, Box 980024, Richmond, VA 23298. VCUHS shall address all notices to Seller at the address and contact information provided in the Vendor/Seller Profile information as submitted to VCUHS or the Notices section of any executed agreement by the parties.
 

Patents

By accepting a purchase order, Seller agrees to defend, protect, and save harmless, VCUHS, its successors, assigns, and users of the products identified on the purchase order, against all suits at law or in equity, and from all damages, claims, demands, for actual or alleged infringement of any United States or foreign patent or copyright by reason of the use or sales of the material ordered.
 

Pay Transparency

Seller will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the Seller’s legal duty to furnish information.
 

Policies

Seller agrees to comply with any and all applicable VCUHS’ policies and procedures when providing services at VCUHS facilities including, without limitation, its anti-discrimination, sexual harassment, immunization/vaccination policies as well as any requirements of The Joint Commission and the Virginia Department of Health and Department of Virginia Medical Services.
 

Release of Information

Seller shall not without first obtaining VCUHS’ written consent disseminate the fact that Seller has furnished or has contracted to furnish VCUHS goods or services, nor, except as necessary for performance of a contract and/or purchase order, shall Seller disclose any of the details connected with the contract and/or purchase order to third parties.
 

Severability

If any provisions or provisions of these terms are held to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 

Taxes

Sales to VCUHS are normally exempt from State sales tax. State sales and use tax certificates of exemption, Form ST-12, will be issued upon request. Deliveries shall usually be free of Federal excise and transportation taxes. VCUHS’ FIN is 54-1848065.
 

Termination for Convenience

VCUHS reserves the right to terminate any resulting contract and/or purchase order, in part or in whole, without penalty, upon 30 days written notice to the Seller unless otherwise agreed upon by the parties. Any termination notice shall not relieve the Seller of the obligation to deliver and/or perform on all outstanding orders issued prior to the effective date of termination.
 

Training

Upon initial installation of equipment, hardware, or software at VCUHS’ site, Seller will provide user training related to clinical training, applications and in-service training a reasonable required for each VCUHS location where implementation takes place. Seller will provide a properly qualified training staff to provide training and shall accommodate all shifts that require training. Seller training (to include travel and room and board related to Seller’s training staff) shall be provided at no charge unless otherwise agreed to by the Seller and VCUHS.
 

Virginia Freedom of Information Act

Except as provided below, once a purchase order or contract is issued, all related solicitation documents submitted to VCUHS, including, but not limited to, quotations, proposals, bids, contracts, statements of work, and/or specifications, will be open to the inspection of any citizen,  or any interested person, firm or corporation, in accordance with the Virginia Freedom of Information Act.  Trade secrets or proprietary information submitted by a Seller as part of its solicitation, contract, and/or purchase order documents will not be subject to public disclosure under the Virginia Freedom of Information Act; however, the Seller must invoke the protections of this section prior to or upon submission of its documents, and must identify the specific data or other materials to be protected and state the reasons why protection is necessary.
 

Waiver of Trial By Jury

Seller accepts that VCUHS will not agree to the waiver of rights to a trial by jury.
 

Warranty

Whether or not Seller is a merchant of the product provided by it, Seller warrants that all product provided by it to VCUHS shall (a) be of good quality and workmanship and free from all defects, latent, or patent, in design, materials and workmanship, (b) conform to all specifications, drawings, samples, and other descriptions furnished, specified, or adopted by VCUHS, (c) be merchantable and suitable, sufficient, and fit for their intended and particular purpose, and (d) be free of all liens and encumbrances, and any claim of title by any third party. None of the remedies available to VCUHS for the breach of any of the foregoing warranties may be limited except to the extent and in the manner agreed upon by VCUHS in a separate written agreement specifically designating such limitation and signed by an authorized represented of VCUHS. Furthermore, Seller agrees the goods or services furnished shall be covered by the most favorable commercial warranty the Seller or its manufacturer gives any customer for such goods or services. A copy of the warranty should be provided by the Seller at time of delivery.
 

Affiliates

For purposes of these terms and conditions and any associated agreement, contract, or purchase order, “Affiliates” shall mean those organizations controlling, controlled by, or under common control with Virginia Commonwealth University Health System Authority (“VCU Health System/VCUHS”). Seller shall bill VCUHS or its designated Affiliates for their respective use, lease or purchase of the goods, services, equipment and/or supplies provided under this Contract. The rights and obligations of the contract, agreement, and/Purchase Order shall apply to each Affiliate. No Affiliate shall be responsible for any act, omission, or financial obligation of VCU Health or any other Affiliate under this Agreement; nor shall VCUHS Owner be responsible for any act, omission, or financial obligation of any Affiliate.
 
(rev. April 25, 2017)