Procurement Services – Library of Provisions
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Procurement Services – Library of Provisions The following document serves as a reference library for UC legal documents and language that can be used as part of RFx requirements, Agreements or Statements of Work (SOWs) and based on the specific goods or services being procured. Index of Provisions BY SUBJECT IN UC TERMS AND CONDITIONS OF PURCHASE IN AGREEMENT - PURCHASE OGC-Approved Standard Legal Language • • • • • • • • • • • • • • • • • • • • • • • • • Library of Provisions AGENCY BACKGROUND CHECKS – CRIMINAL BACKGROUND CHECKS – GENERAL CONSENT FOR FILM, PHOTOGRAPHY, VIDEO CREATIVE SERVICES EVENTS – GENERAL EVENTS – COMPLIMENTARY TICKETS EVENTS – EXCLUSIVE PERFORMANCES EVENTS – PROMOTIONAL AND PROGRAM MATERIAL EVENTS – REPRODUCTION OF PERFORMANCE EVENTS – SALE OF SOUVENIRS FAIR WAGE/FAIR WORK HOTELS INDEMNITY – UC TO SUPPLIER PATIENT PROTECTION AND AFFORDABLE CARE ACT PATRONAGE DIVIDEND PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS (PCI DSS) PIGGYBACK – CSU PIGGYBACK – UC PREVAILING WAGES RESEARCH – GENERAL RIGHT OF FIRST REFUSAL SUSTAINABILITY TRAINING TRANSITION ASSISTANCE Revised: 4/26/16 Sample Language Error! Reference source not found. STAFFING – EXECUTIVE RECRUITING STAFFING – TEMP AGENCY STAFFING – TEMP AGENCY, MEDICAL OPERATIONS USE OF UC FACILITIES Communications with Bidders NOTICE OF NON-AWARD Page 1 of 39 Procurement Services – Library of Provisions Index of Provisions by Subject Subject Agency Amendments Assigned Personnel; Character of Services Assignment and Subcontracting Audit Requirements Background Check - Criminal Background Check - General Billing Provisions CANRA Changes Communications with Bidders Confidential Information Include in RFx Where to include the provision Requirements Add to Agreement If applicable If applicable Confidentiality Conflict of Interest Consent for Film, Photography, Video Cooperation Copyright, Intellectual Property, Patents Credit Card Transactions Library of Provisions If applicable Included in Terms and Conditions (T&Cs) Included in T&Cs Included in T&Cs Included in T&Cs Add to Statement of Work (SOW) Add to SOW Included in SOW Included in T&Cs Included in T&Cs and SOW Send written notification via letter or email When services involve temporary staff, recommend adding to Agreement for low risk services if Appendix - Data Security is not used. Included in T&Cs Included in T&Cs Add to SOW Included in T&Cs Provisions for 1) work made for hire, and 2) work not made for hire are included T&Cs. Buyer must designate in the Agreement which provisions (work for hire, or not) apply. If credit card transactions are involved, use Appendix - Data Security and Privacy Revised: 4/26/16 Reference Library T&Cs T&Cs T&Cs T&Cs Library Library SOW T&Cs T&Cs, SOW Library Library T&Cs T&Cs Library T&Cs T&Cs, Agreement Purchase Appendix - Data Security and Privacy Page 2 of 39 Procurement Services – Library of Provisions Subject Data Security Declared Valuation of Shipments Include in RFx Where to include the provision Requirements Use Appendix - Data Security and Privacy when Supplier will create, receive, maintain or transmit confidential information on behalf of UC. Because this includes PCI Data Security Standards as applicable, Buyer must indicate in the Agreement whether the PCI standards will apply. See Section 2(A) of Appendix - Data Security and Privacy for definition of Protected Information. Included in T&Cs Earned Incentive Environmentally Preferable Products Equal Opportunity Affirmative Action Events--Complimentary Tickets Events--Exclusive Performances Events--Promotional and Program Material Events--Reproduction of Performance Events-Sale of Souvenirs Expense Reimbursement Federal Acquisition Regulations If applicable Fair Wage/Fair Work Force Majeure Forced, Convict, and Indentured Labor Governing Law and Venue Indemnity Indemnity – from UC to Supplier Inspection Independent Consultant If applicable Library of Provisions If If If If If applicable applicable applicable applicable applicable Reference Appendix - Data Security and Privacy T&Cs Included in SOW SOW Included in T&Cs T&Cs Included in T&Cs T&Cs Add to Agreement Library Add to Agreement Library Add to Agreement Library Add to Agreement Library Add to Agreement Library Included in T&Cs T&Cs Included in T&Cs T&C Baseline for procurement of commercial goods and services is included in T&Cs. Appendix – Federally Add federal contract number to Agreement if known. Funded For non-commercial procurements, additional requirements are included in Appendix - Federally Funded. Included in T&Cs T&Cs Included in T&Cs T&Cs Included in T&Cs T&Cs Included in T&Cs T&Cs Included in T&Cs T&Cs Add to Agreement Library Included in T&Cs T&Cs Use Agreement - Independent Consultant in combination with the T&Cs and Agreement SOW. Independent See BUS-34, -43 and -77 for definition of Independent Consultant. Consultant Revised: 4/26/16 Page 3 of 39 Procurement Services – Library of Provisions Subject Include in RFx Requirements Insurance Included in T&Cs Baseline included in T&Cs. Any additional requirements should be added in SOW. Included in T&Cs Included in T&Cs Included in T&Cs Included in T&Cs; Buyer must specify contacts in the Agreement. Liability for UC Furnished Property Mandatory Use Policy No Third-Party Rights Notices Other Applicable Law Patient Protection and Affordable Care Act (PPACA) – temporary and supplementary staff Patronage Incentive Payment Card Industry Data Security Standards Payment, Extra Charges, Taxes Protected Health Information (PHI) Permits Piggyback - CSU Piggyback - UC Locations Premises Where Services Are Provided Prevailing Wages Price Decreases Library of Provisions Where to include the provision If applicable If applicable If applicable If applicable If applicable If applicable Included in T&Cs In RFx For new contracts: provision is in T&Cs For new contracts: PO or Agreement will need to indicate applicability of T&Cs provision For existing contracts: in contract amendment Included in SOW Included in Appendix – Data Security and Privacy; if excluded see Library Included in T&Cs If Supplier will have access to PHI, federal law requires Agreement – HIPAA Business Associate Agreement (BAA). Use BAA with appropriate Agreement and T&Cs. See BAA section 2.6 for definition of PHI, Included in T&Cs Add to Agreement Add to Agreement Included in T&Cs and SOW In RFx T&Cs assumes that prevailing wages apply. If not the case, indicate in the Agreement or PO Included in T&Cs Revised: 4/26/16 Reference T&C T&Cs T&Cs T&Cs T&Cs, Agreement Purchase T&Cs See Library for RFx and PO language Library Library T&Cs Agreement – HIPAA BAA T&Cs Library Library T&Cs, SOW Library See Library for PO language T&Cs Page 4 of 39 Procurement Services – Library of Provisions Subject Include in RFx Where to include the provision Requirements Privacy & Confidentiality If applicable Professional Services If applicable Right of First Refusal Severability Source Code Escrow If applicable Supplier Terms Survival Clause Sustainability Taxes Term and Termination Title Training Transition Assistance UC Whistleblower Policy Use of UC Name and Trademarks Use of University Facilities Waiver Warranties Library of Provisions If applicable If applicable If applicable Reference See the following subjects: Personal Health Information (PHI); Data Security; and Confidential Information. Reference: Agreement – HIPAA BAA for PHI Appendix – Data Security and Privacy for non-PHI confidential information and Library for Confidential Information Provision. Use Agreement - Professional Services (not the Purchase Agreement) with T&Cs Agreement and SOW. Professional Services See BUS-43 for definition of Professional Services. Add to Agreement Library Included in T&Cs T&Cs Use as a part of the Agreement - Software License and Support Agreement. Library, Agreement Software License and Support Included in T&Cs (supplier terms not incorporated unless agreed upon in T&Cs writing) Included in T&Cs T&Cs Add to Agreement Library Included in T&Cs T&Cs Included in T&Cs and specified in SOW T&Cs, SOW Included in T&Cs T&Cs Add to SOW Library Add to SOW Library Included in T&Cs T&Cs Included in T&Cs T&Cs Included in T&Cs Library Included in T&Cs T&Cs Baseline is in T&Cs; provide additional requirements in SOW T&Cs Revised: 4/26/16 Page 5 of 39 Procurement Services – Library of Provisions Index of Provisions in UC Terms & Conditions UC Terms and Conditions of Purchase 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. General Term and Termination Payment, Extra Charges, Taxes Inspection Assigned Personnel; Character of Services Warranties Intellectual Property, Copyright and Patents Indemnity Insurance Use of UC Name and Trademarks Federal Acquisition Regulations – Commercial Goods and Services Equal Opportunity Affirmative Action Liens Premises where Services are Provided Liability for UC – Furnished Property Cooperation Additional Terms Applicable to the Furnishings of Goods Conflict of Interest Audit Requirements Confidentiality UC Whistleblower Policy Environmentally Preferable Products Patient Protection and Affordable Care Act (PPACA) Empolyer Shared Responsibility Prevailing Wages Fair Wage/Fair Work Force Majeure Assignment and Subcontracting No Third-Party Rights Other Applicable Laws Notices Severability Waiver Amendments Governing Law and Venue Supplier Terms Survival Clause Library of Provisions Revised: 4/26/16 Page 6 of 39 Procurement Services – Library of Provisions Index of Provisions in Agreement – Purchase 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Agreement - Purchase Statement of Work Term of Agreement/Termination Purchase Order Invoices and Pricing Notices Intellectual Property, Copyright and Patents Patient Protection and Affordable Care Act (PPACA) Prevailing Wages Fair Wage/Fair Work Federally Funded Contracts; Grants and Cooperative Agreements Restriction Relating to Consulting Services or Similar Contracts – Follow-on Contracts Insurance Service-Specific and/or Goods-Specific Provisions Records about Individuals Amendments to UC Terms and Conditions of Purchase Incorporated Documents Entire Agreement Library of Provisions Revised: 4/26/16 Page 7 of 39 Procurement Services – Library of Provisions OGC-Approved Standard Legal Language AGENCY Supplier will act as an agent on behalf of UC to make acquisitions in _______ of ___________________ to the specifications set by UC and to not exceed total cost of $__________. These examples will become UC property and will be the basis of the exhibition. Agent warrants that Agent has full and current legal authority to act and contract on behalf of Supplier. BACKGROUND CHECKS – CRIMINAL Before any Temporary Staff may be assigned (and enter UC premises) in connection with any order, Supplier will conduct a background check of the Temporary Staff. All felony and misdemeanor convictions (except marijuana related offenses greater than two years old) must be reported to UC and may result in the Temporary Staff being prohibited from performing work at UC. Acceptable background screening will consist of the last seven years residence and employment verification. The background screen will also include a criminal conviction records investigation conducted by any third-party agencies that adheres to the California Investigative Consumer Reporting Agencies Act. A criminal convictions records investigation will consist of a records search (documented by a written report retained by Supplier) by the appropriate law enforcement or other local or state agency in each location in which the Temporary Staff has resided and worked in during at least seven years preceding the date of the criminal conviction records investigation. UC may require persons, before entering UC premises, to complete a criminal convictions questionnaire. In the event that UC has grounds to believe that a Temporary Staff falsified his or her criminal convictions questionnaire in any way, such person will not perform any work for UC or enter onto UC premises. UC reserves the right, at its discretion, to request from Supplier documentation of the completion of a criminal conviction records investigation for any Temporary Staff assigned to work on UC premises. Supplier's failure to have completed a criminal convictions investigation of any of its Temporary Staff in accordance with this clause will be grounds for immediate expulsion of the Temporary Staff and UC will have the right to terminate the Agreement both with respect to the Temporary Staff and Supplier. BACKGROUND CHECKS – GENERAL Supplier will arrange for background checks, verifications, references, and other investigations, as requested, as part of the overall assessment of candidates presented for consideration. Library of Provisions Revised: 4/26/16 Page 8 of 39 Procurement Services – Library of Provisions Supplier warrants that Temporary Staff will have had a full background check initiated by Supplier and that the Temporary Staff will have no known criminal records or criminal charges which would in any way affect the ability of Temporary Staff, to discharge their responsibilities according to the highest ethical standards which exist in regards to patient and financial data and the systems that process such information. Background checks will include, but are not limited to, reference checks and criminal checks. UC reserves the right to perform additional background checks on Temporary Staff providing Services, and to require Temporary Staff to be fingerprinted for such purpose. CONSENT FOR FILM, PHOTOGRAPHY, VIDEO Supplier will obtain such consent forms in accordance with all UC policies, including [Buyer: insert campus policy, if applicable] regarding Photography and Filming. Supplier will obtain consent forms from all parties before filming, using the UC consent form provided to Supplier. UC retains ownership of all such recordings. CREATIVE SERVICES Compensation. It is understood that UC will make best efforts to secure adequate funding to mount the Exhibition. If funding is not received, however, Supplier understands that UC may inform Supplier that the Services will not go forward and that compensation will be pro-rated based on the Services that Supplier has provided up to the date UC terminates the Services. [Buyer: May want to include the following in Statement of Work] Supplier warrants that the Services are original and have not been published before and that Supplier has not granted, pledged, or assigned rights to the Services to others; and that Supplier has the power to enter into the Agreement. Supplier understands and agrees that the final decision as to how many and which of the submitted photographs or drawings are used in the Services resides with UC. Supplier agrees to give UC non-exclusive, worldwide rights to reproduce the field photographs in the Services in all editions, including foreign-language editions produced by or for other Exhibition venues. Supplier also agrees to give UC and other exhibition venues the rights to use Supplier’s field photographs or drawings in the Exhibition and for non-commercial education, publicity, promotional, and archival purposes, including without limitation on its Web site in any media now existing or later developed. Library of Provisions Revised: 4/26/16 Page 9 of 39 Procurement Services – Library of Provisions If a photograph was taken by a photographer other than the Supplier, then Supplier must submit written proof that Supplier has permission of the photographer or artist to reproduce the image in question in the Services in accordance with all the terms of the Agreement. Supplier will undertake the following tasks relating to the Exhibition: [insert] EVENTS – GENERAL UC Obligations. UC agrees to be responsible for staffing the venue for the performance described above and for the necessary set-ups (including lights and stage arrangements completed, to the extent possible to have done so, prior to Supplier’s arrival at the aforementioned venue), technical run through, and rehearsals. Total time in the venue will be limited to __ hours. Should additional time be required, Supplier will pay UC for space, staff and equipment used during the additional time. If Supplier arrives more than thirty (30) minutes late for mutually agreed upon time of crew call, Supplier will be liable for cost of idle crew. UC will provide a non-union crew adequate to handle customary and traditional back-of -the house needs of Supplier. Should Supplier demand back-of-house services in excess of customary needs, as UC will determine in its sole discretion, UC may either refuse compliance or, after due notice, charge Supplier for additional costs arising from compliance with Supplier's demands. UC will provide such stage equipment, including lighting and sound system, as may be in the possession of the UC location and readily available for use. UC will charge Supplier the cost of Supplier’s additional stage equipment requirements no later than six weeks following the performance. Tickets, the sale of tickets and ticket takers. [Add] House programs. [Add] Supplier Obligations. Supplier agrees to provide at Supplier's cost and expense such services equipment, information and materials as are listed below: Transportation to and from UC (or _______ Airport) for Supplier and all of Supplier's baggage and equipment. All lodging, meals, salaries, and expenses for Supplier's engagement at UC. Promotional and program material, as specified in the Agreement. UC reserves the right to edit all promotional and program copy submitted by Supplier. Should Supplier fail to deliver the Services by the specified date(s), UC will notify Supplier or Agent of such failure. Unless delivery of the Service is made within seven calendar days following receipt of said notice, UC will deduct from the compensation specified herein an amount equal to one percent of that Library of Provisions Revised: 4/26/16 Page 10 of 39 Procurement Services – Library of Provisions compensation for each seven days of delinquency commencing after the above cited seven day period. Ticket Prices. UC will determine the prices of tickets for the performance. Music License Fees. UC will pay all music license fees required by ASCAP, SESAC, and BMI. Anticipatory Breach. In the event that after the execution of the Agreement, (a) Supplier or Agent indicates or states that Supplier or any other member of Supplier's traveling component deemed by UC to be material to the performance hereunder is unwilling or unable to appear or present the performance, and such failure is not excusable under the Agreement, or (b) if Supplier or any authorized agent of Supplier takes any voluntary action which, in UC's discretion, renders impossible substantial performance of Supplier's contractual duties hereunder, then UC may cancel the performance or any portion(s) thereof and Supplier will pay for any and all costs, expenses, damages, and claims arising from such cancellation. Such cancellation will be without prejudice to UC's other rights and remedies hereunder. Any breach or anticipatory breach of this agreement by Supplier will be deemed a material breach. EVENTS – COMPLIMENTARY TICKETS UC will be the only party authorized to issue complimentary tickets to the performance described herein. A maximum of four complimentary tickets for each performance will be available to Supplier. Supplier must notify UC on the disposition of such tickets no later than noon on the day of performance. If UC does not receive such notice, UC may release the tickets for general sale. EVENTS – EXCLUSIVE PERFORMANCES Supplier agrees not to accept any other engagement of any sort or kind between the issuance of the Agreement and date(s) of p erformance per the Agreement and within a radius of __ miles from UC without UC’s express written permission. In the event of any such unauthorized performance, the performance described hereinabove, or any portion or portions thereof, may be canceled by UC, and the cancellation will be without prejudice to UC's other rights and remedies thereunder. EVENTS – PROMOTIONAL AND PROGRAM MATERIAL Supplier Obligations. Supplier agrees to provide at Supplier's cost and expense promotional and program material, as specified in the Agreement. UC reserves Library of Provisions Revised: 4/26/16 Page 11 of 39 Procurement Services – Library of Provisions the right to edit all promotional and program copy submitted by Supplier. EVENTS – REPRODUCTION OF PERFORMANCE UC agrees to prevent, to the best of its ability, the photographing, filming, broadcasting, recording or reproduction by radio, television, or any other device, of the performance defined hereinabove or of any portion or portions thereof, without written permission of Supplier. Conversely, UC’s written permission will be required for any photographing, filming, broadcasting, recording or reproduction by radio, television, or any other device of the performance defined hereinabove, or of any portion or portions thereof, by Supplier, Supplier's agent, or any other person. EVENTS – SALE OF SOUVENIRS Supplier may sell souvenir programs, records, or any other Supplier souvenir in the lobby of the performance facility if written permission is obtained from UC no later than seven days prior to the performance. UC reserves the right to withhold approval for such sales. If approval is granted, Supplier will pay UC ___ percent of the gross souvenir sales within one hour following completion of the performance. Supplier must provide UC with access to souvenir inventory and sales records. UC may provide personnel for the selling of souvenirs, at a charge of $____ per hour, if Supplier requests such services in writing by Supplier no later than seven days prior to the performance. FAIR WAGE/FAIR WORK [Buyer: the following clause must be used in the RFx when services will be performed at one or more UC campuses and/or medical centers. Exceptions: 1) the services involve furnishing goods; 2) are a Public Work with a wage determination at or above the UC Fair Wage (defined as $13 per hour as of 10/1/15, $14 per hour as of 10/1/16, and $15 per hour as of 10/1/17); or 3) are subject to extramural agreements (including sub-agreements and subcontracts) containing sponsor-mandated terms and conditions.] Language for RFx: Supplier will be required to agree to the UC Fair Wage/Fair Work provision in UC’s Terms and Conditions of Purchase. This provision requires supplier to warrant that it is in compliance with applicable workplace requirements; to pay no less than the UC Fair Wage to employees who perform the Services ($13 per hour as of 10/1/15, $14 per hour as of 10/1/16, and $15 per hour as of 10/1/17); to be subject to interim audits by UC in this regard; and in the case of services that exceed $100,000 per year, annually to certify completion of an independent audit of compliance with the UC Fair Wage/Fair Work provision. Annual audits may be performed by supplier’s independent auditor or independent internal audit department in compliance with UC’s required audit standards and procedures. By Library of Provisions Revised: 4/26/16 Page 12 of 39 Procurement Services – Library of Provisions way of illustration, UC would consider firms listed in Inside Public Accounting’s most recent annual ranking of the 200 largest accounting firms to be acceptable independent auditors (http://insidepublicaccounting.com/newsletters/ipa-100-and-ipa-200/). Language for Purchase Order if Fair Wage does not apply and there will be no Agreement other than the T&Cs: Supplier is not required to pay the UC Fair Wage when providing the Services. Language to inform Supplier that existing agreement must be amended to comply with Fair Wage: Because your agreement with UC is being amended or extended on or after October 1, 2015, UC policy requires us to add UC’s Fair Wage/Fair Work provision to the agreement. Attached is a proposed amendment to our agreement, incorporating the Fair Wage/Fair Work provision. Please return the signed amendment to me no later than [date]. If we do not receive a signed amendment by this date, it may be necessary for UC to terminate the agreement. Please don’t hesitate to contact me if you wish to discuss this. Language to remind Supplier of annual audit requirement: As required in our agreement, supplier must provide an annual independent compliance audit performed by supplier’s independent auditor or independent audit department in compliance with UC’s required audit standards and procedures. These standards and procedures may be found at [insert link]. Supplier is required to provide an audit certification form within 90 days of the agreement’s anniversary date, which is [date]. The form may be found at [insert link]. Please return the completed audit certification to my attention no later than [anniversary date plus 90 days]. If we do not receive a completed amendment by this date, it may be necessary for UC to terminate the agreement. Please don’t hesitate to contact me if you wish to discuss this. HOTELS UC Liability for Its Subcontractor’s Acts or Omissions. UC may desire to utilize the services of a subcontractor (“Subcontractor”), typically for audio-visual services, while on site at Supplier’s property. UC Regental policy prohibits UC from indemnifying Supplier for the actions of third parties. UC will notify Supplier of its intent to utilize a Subcontractor. Upon request by Supplier, UC will include in its own agreement with Subcontractor that Subcontractor will defend, indemnify, and hold Supplier, and UC and its officers, employees, and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys' fees), or claims for injury or damages arising out of the performance of the Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of Subcontractor, its officers, employees, or agents. Upon request by Supplier, UC will obtain from Subcontractor evidence of Subcontractor’s insurance. Planner Points or Incentives. In the event that any function booked at Supplier’s property is eligible for Meeting Planner Points, such Points will not be credited Library of Provisions Revised: 4/26/16 Page 13 of 39 Procurement Services – Library of Provisions to any individual Planner’s account but rather will be either (a) credited to UC or (b) will take the form of a gratuity (upgrade, complimentary meeting room, etc.) to be utilized during the Services. Under no circumstances will any individual receive Points or gratuities specifically designated for that individual’s use (room service, room upgrades, future discounts, etc.). INDEMNITY – FROM UC TO SUPPLIER [Buyer: if Supplier insists on an indemnification running from UC to Supplier, this language is consistent with the requirements of Regents Standing Order 100.4(dd)(9) and the T&Cs.] Supplier’s indemnity of UC is set forth in UC’s Terms and Conditions. Additionally, UC will defend, indemnify and hold harmless Supplier, its officers, employees, and agents from and against all losses, expenses (including, without limitation, reasonable attorneys’ fees and costs), damages, and liabilities of any kind resulting from or arising out of this Agreement but only in proportion to and to the extent such losses, expenses, damages or liabilities are caused by or result from the negligent or intentional acts or omissions of UC, its officers, employees, or agents. Supplier agrees to provide UC with prompt notice of any such claim or action and to permit UC to defend any claim or action. Supplier agrees to cooperate fully in such defense. Supplier retains the right to participate in the defense against any such claim or action, and the right to consent to any settlement, which consent will not unreasonably be withheld. PATIENT PROTECTION AND AFFORDABLE CARE ACT [Buyer: the following clauses must be used when the services involve supplementary or temporary staffing] Language for RFx: Because the Services involve temporary or supplementary staffing and are subject to the Patient Protection and Affordable Care Act (PPACA) employer responsibility provisions, supplier will be required to agree to the PPACA warranties in UC’s Terms and Conditions. Language for Purchase Order (if there will be no Agreement other than the T&Cs): Because the Services involve temporary or supplementary staffing, they are subject to the PPACA warranties in the T&Cs. Language to use amending existing, active agreements if Amendment to Agreement template is not used: Library of Provisions Revised: 4/26/16 Page 14 of 39 Procurement Services – Library of Provisions Patient Protection and Affordable Care Act (PPACA) Employer Shared Responsibility Provision. If the Services involve Supplier furnishing UC with temporary or supplementary staffing, Supplier warrants that: A. If Supplier is an Applicable Large Employer (as defined under Treasury Regulation Section 54.4980H-1(a)(4)): 1. Supplier offers health coverage to its full-time employees who are performing Services for UC; 2. Supplier’s cost of enrolling such employees in Supplier’s health plan is factored into the fees for the Services; and 3. The fees for the Services are higher than what the Services would cost if Supplier did not offer health coverage to such full-time employees. B. If Supplier is not an Applicable Large Employer (as defined above): 1. Supplier offers group health coverage to its full-time employees who are performing Services for UC and such coverage is considered Minimum Essential Coverage (as defined under Treasury Regulation Section 1-5000A-2) and is Affordable (as defined under Treasury Regulation Section 54.4980H-5(e)); or 2. Supplier’s full-time employees who are performing services for UC have individual coverage and such coverage satisfies the PPACA requirements for mandated individual coverage. Supplier acknowledges that UC is relying on these warranties to ensure UC’s compliance with the PPACA Employer Shared Responsibility provision. PATRONAGE DIVIDEND Language for RFx: The successful bidder(s) will be required to provide a quarterly Patronage Incentive of ___% of the total sales of products resulting from the contract. This Patronage Incentive will be used by UC to provide support in the implementation, administration, and management of the successful bidder(s) program in order to maximize UC’s participation and/or other purposes at UC discretion. The amount of quarterly Patronage Incentive provided to each UC location will be calculated based on the total quarterly sales to each location. Each location will have the right to modify proposal pricing for the individual campus up to 2% in the event a UC location decides not to implement an incentive program. Please provide UC’s company’s commitment to comply with this requirement. Language for Agreement: Refer to the Statement of Work Template. PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS (PCI DSS) [Buyer: if PCI DSS do not apply, add this section to the applicable agreement] Amendments to UC Appendix – Data Security and Privacy Library of Provisions Revised: 4/26/16 Page 15 of 39 Procurement Services – Library of Provisions Article 7 is deleted. PIGGYBACK – CSU Language for RFx: Successful awardee will be required to extend terms of the agreement to all CSU locations. Language for Agreement: Supplier agrees to extend pricing and services to the California State University institutions (CSU) under the terms of the Agreement. All contractual administration issues (e.g. terms and conditions, extensions, and renewals) will remain UC’s responsibility. Operational issues, fiduciary responsibility, payment issues, performance issues and liabilities, and disputes involving individual CSU campuses will be addressed, administered, and resolved by each CSU campus. PIGGYBACK – UC Language for RFx: Successful awardee will be required to extend terms of the agreement to all UC locations. Language for Agreement: Supplier agrees to extend the pricing basis, terms and conditions of the Agreement to all UC locations. Supplier will make available to any UC location its improved pricing basis, terms or conditions resulting from increased usage or aggregation of activity by multiple UC locations. All contractual administration issues (e.g. terms and conditions, extensions, and renewals), operational issues, fiduciary responsibility, payment issues, performance issues and liabilities, and disputes involving individual UC locations will be addressed, administered, and resolved by each UC location. Any delay in payment or other operational issue involving one UC location will not adversely affect any other UC location. PREVAILING WAGES [Buyer: the following clause must be used when Buyer determines that services are a public work as defined in the Labor Code] Language for RFx: Library of Provisions Revised: 4/26/16 Page 16 of 39 Procurement Services – Library of Provisions The successful awardee will be required to pay prevailing wages. The work described in the RFP is a public work subject to California Labor Code section 1771. No contractor or subcontractor may be listed on a bid for the work unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor may be awarded any portion of the work unless registered with the DIR pursuant to Labor Code section 1725.5. The successful awardee will be required to post the applicable prevailing wage rate determination and any job site notices as prescribed by the DIR. The work is subject to compliance monitoring and enforcement by the DIR. Language for PO if moving Services are being supplied: Article 24 of the Terms & Conditions of Purchase contains prevailing wage requirements, and requires Supplier to be solely responsible for tracking and ensuring proper payment for Services that are only partially subject to prevailing wage requirements. For instance, commercial moving Services for relocating goods in offices or facilities or institutions, or any portion thereof, are only subject to the payment of prevailing wages to the extent they include modular furniture or any affixing or detachment of goods to or from realty, all as defined by the California Labor Code. Language for PO – Buyer, insert in the PO if there will be no Agreement other than the T&Cs, and Prevailing Wage is inapplicable: Supplier is not required to pay prevailing wages when providing the Services.Agreement – Note to Buyer: A prevailing wages article is in the T&Cs and must not be deleted if the Services are subject to prevailing wages requirements. RESEARCH – GENERAL Any publication (including World Wide Web pages) developed under the Agreement will cite UC [site specific campus as applicable] as an institutional affiliation and will contain the following citation: “This material is based upon work supported by University of California and _____________________ (“Sponsor”) under Grant Number ____________. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the view of the University or the Sponsor.” All publications describing the Services will state clearly: a) the dollar amount of Federal funds for the Services; b) the percentage of the total cost of the Services that will be financed with Federal funds; c) the percentage and dollar amount of the total cost of the Services that will be financed by non-governmental sources. Library of Provisions Revised: 4/26/16 Page 17 of 39 Procurement Services – Library of Provisions RIGHT OF FIRST REFUSAL [Buyer: To use this provision, please define Installation/Artworks, and set forth the fees for Copyright Royalty and Crating/Packing.] 1. 2. 3. 4. 5. Supplier will promptly inform UC if a bona fide third party purchaser offers to purchase some or all of the Installation/Artworks. Before Supplier sells some or all of the Installation/Artworks, Supplier will give UC [number of days] days to decide whether UC wishes to purchase the Installation/Artworks, at the purchase price offered by the bona fide third party purchaser. If UC notifies Supplier that UC will purchase some or all of the Installation/Artworks, Supplier will deduct, from the purchase price offered by the bona fide third party purchaser, the amount UC originally paid to Supplier and any vendors for Copyright Royalty and Crating/Packing for the Installation/Artworks (the Royalty/Crating Expenses). If Supplier transfers some or all of the Installation/Artworks without consideration, UC’s right of first refusal will survive the transfer of the Installation/Artworks, and apply to the transferee of the Installation/Artworks. Supplier agrees that if UC takes legal action to enforce this provision, Supplier will pay UC’s costs and attorney’s fees. If some or all of the Installation/Artworks are sold to one or more third parties within two years from the end of the Exhibition and Tour, Supplier will reimburse UC the greater of the purchase price or the Royalty/Crating Expenses. If Supplier sells the Installation/Artworks in more than one transaction, Supplier will reimburse UC for the greater of each purchase price or the Royalty/Crating Expenses until Supplier has fully reimbursed UC for the Royalty/Crating Expenses. If Supplier reimburses UC for such amounts, Supplier will be the sole owner of the part of the Installation/Artworks that was sold. Supplier will provide its agent and/or gallery with written notice of this provision. SUSTAINABILITY Language for RFx: Bidder Commitment to Sustainability: UC is committed to responsible stewardship of resources and to demonstrating leadership in sustainable business practices and thus will require Bidders to present their commitment to sustainable practices as it applies to its goods and services. Environmental Sustainability: Describe Bidder’s commitment to sustainable practices as it applies to its services. Refer to the UC Presidential Policy on Sustainable Practices, and align Bidder’s response with the applicable categories outlined in the policy statements. Environmentally Responsible Packaging: UC encourages its suppliers to utilize environmentally responsible packaging and recycling practices. Bidder’s proposal must include a statement indicating what measures will be taken to minimize the adverse effects of packaging on the environment. Sustainable Transportation: Describe Bidder’s program(s) for promoting sustainable transportation practices within Bidder’s organization. Sustainable Operations: Describe Bidder’s program(s) for promoting sustainable practices within Bidder’s offices, warehouses, and other facilities. Library of Provisions Revised: 4/26/16 Page 18 of 39 Procurement Services – Library of Provisions Include within factors that will be used to evaluate proposals: Sustainable practices Language for Agreement: Environmentally Preferable Products (or EPP): Supplier agrees to provide EPPs, defined as goods that are manufactured in a manner such that the impact on the environment is minimized throughout the entire lifecycle of the goods by implementing sustainable practices during material sourcing, manufacturing, and transportation. EPPs need to be capable of being disposed of in an environmentally acceptable manner. Environmentally Responsible Packaging: Supplier agrees to use good faith efforts to utilize environmentally responsible packaging and recycling practices to minimize the adverse effects of packaging on the environment. Sustainability: UC is committed to responsible stewardship of resources and to demonstrating leadership in sustainable business practices and thus will require Supplier to present its commitment to sustainable practices as it applies to the Services. Refer to the UC’s Policy on Sustainable Practices. Environmentally Responsible Packaging: Supplier agrees to use good faith efforts to utilize environmentally responsible packaging and recycling practices to minimize the adverse effects of packaging on the environment. Sustainable Transportation: Supplier agrees to work towards creating a delivery and transportation model which minimizes Green House Gas (GHG) emissions and has the least impact on the environment. The purchase of the cleanest and most efficient vehicles and tires will be a Supplier goal. The use of alternative fuels will be utilized where and when appropriate. Sustainable Operations: Supplier agrees to implement a continuous improvement program related to sustainable operations of its facilities. Reporting: Supplier will report to UC during the quarterly business reviews regarding the improvements that have been made in the previous quarter and planned improvements for the upcoming quarters. Supplier will provide UC quarterly summary reports as specified in the RFP detailing purchases, incentives and the purchase of sustainable products by UC systemwide and by location. TRAINING Supplier will provide UC with training for the purposes of understanding and using the Services. Supplier will provide training as detailed below at no additional cost to UC. Training will be provided by Supplier at UC at mutually agreeable dates and times, but no later than __________ (__) calendar days following the Effective Date. Library of Provisions Revised: 4/26/16 Page 19 of 39 Procurement Services – Library of Provisions TRANSITION ASSISTANCE Should UC determine that it is in its best interest to change the location of its current operations, UC will have the right to use the Services and associated support and maintenance services in both locations for a transition period not to exceed twelve (12) months at no additional cost. Supplier will provide the following transition assistance (“Transition Assistance”) to support UC’s transition from its current software, or other solution in this area, to Supplier’s Services. Transition Assistance will be provided by Supplier as detailed below at no additional cost to UC. Transition assistance will be provided by Supplier at UC at mutually agreeable dates and times, but no later than ten (10) days following the Effective Date of the Agreement. Library of Provisions Revised: 4/26/16 Page 20 of 39 Procurement Services – Library of Provisions Sample Language SOURCE CODE ESCROW [Buyer: Use in conjunction with Software Licensing and Services Agreement. Only include this section in cases where UC requires Source Code Escrow. Usually Source Code Escrow involves a third party (holder of Source Code in escrow) and therefore a three party stand-alone agreement should be attached and/or referenced in the Software Licensing and Services Agreement. These provisions have not yet been reviewed by OGC’s procurement attorney and rationalized with T&Cs. They are included only as sample provisions.] Within thirty (30) days of the Effective Date, Supplier will, at its own expense, (a) establish a Source Code escrow (“Escrow”) with an escrow agent (the “Escrow Agent”) reasonably acceptable to UC pursuant to a written agreement (the “Escrow Agreement”) which complies with the terms of the Agreement, and which Escrow Agreement either (i) will be jointly signed by Supplier and UC or (ii) will be an already existing Escrow Agreement, with respect to which UC will become a signatory; and (b) deposit into the Escrow, the Source Code for the Software, including code for any Enhancements hereafter developed, and all technical and design Documentation relating to the Source Code that would allow a reasonably competent software programmer to understand, use, support and modify the Source Code (collectively, the “Deposit”). Supplier will update the Deposit whenever an Enhancement is made available to the Software, but not less frequently than quarterly, such that at least on a quarterly basis the Deposit will be complete and accurate as it relates to the then-current version of the Software. The Escrow Agreement will have such other provisions as may be mutually agreeable. Supplier will pay all costs of the Escrow, and the Escrow Agreement will provide that before the Escrow Agent can terminate the Escrow for failure to pay, the Escrow Agent must give at least thirty (30) days prior written notice to UC. The Escrow Agreement will provide that upon UC’s written notice to the Escrow Agent that a Release Condition has occurred (“Notice of Release Condition”), the Escrow Agent will deliver a copy of the Deposit to UC, and a written notice to Supplier that a “release” has been made under the Escrow Agreement (a "Release Notice"). A “Release Condition” will mean the existence of one or more of the following events: Supplier's commission of a breach of any material term or condition of the Agreement; Supplier breaches its obligations to update the Escrow as provided herein; Any of the representations and/or warranties set forth in the Escrow are untrue or incorrect when made, or become untrue or incorrect; Supplier fails to provide, decides not to provide, or materially breaches its obligations with respect to the Support and Maintenance Services; Supplier's failure to continue to do business in the ordinary course; or A Bankruptcy Condition. Supplier will have thirty (30) days following the date of the Release Notice to provide written notice to the Escrow Agent (with a copy to UC) that it, in good faith, believes that the Release Condition did not occur or has been cured (a "Contrary Notice"), and if the Contrary Notice is not timely given, then Supplier waives any right to contest the release of the Deposit to UC. If Supplier does provide the Contrary Notice within the required time period, then, notwithstanding such Library of Provisions Revised: 4/26/16 Page 21 of 39 Procurement Services – Library of Provisions Contrary Notice, UC will continue to have the right to possess and use the Deposit as provided herein unless and until (a) Supplier and UC mutually agree in writing that the Deposit will be returned to Supplier or Escrow Agent or (b) there has been a legal determination through the procedure set forth in this Agreement by a court or mutually agreed arbitration, that the Release Condition did not occur or was cured within thirty (30) days following the date of the Release Notice. So long as the Notice of Release Condition was issued in good faith, UC will have no liability to Supplier for an incorrect Notice of Release Condition. UC’s use of the Deposit is subject to the following terms and conditions: UC’s right to use the Deposit will be limited to the maintenance and support of the Software, including the development of Enhancements ("Permitted Use"). UC may make up to three (3) copies of the Deposit as necessary for archival and backup purposes. Except when actually being utilized for its Permitted Use, the Deposit will be kept in a restricted, limited access area with access thereto limited to designated personnel (including subcontractors) who have a need to use the Deposit for the Permitted Use. UC may not remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Deposit. UC may not market, sell, lend, rent, lease, or otherwise distribute, or assign, sublicense or otherwise transfer any rights in and to, the Deposit, except in connection with a permitted assignment and/or transfer of the Software. In addition, UC may not provide, disclose or otherwise make available the Deposit to any third party, except as provided herein, and except that copies of the Deposit may be kept at a Third Party disaster or data recovery/use center and may be disclosed to subcontractors of UC for the Permitted Use. UC will have the right to routinely verify that Escrow Deposits are current and in accordance with the terms of the Agreement, or have a Third Party do so on its behalf. STAFFING – EXECUTIVE RECRUITING [Buyer: Consider the following provisions/language for the SOW but note that these provisions have not yet been reviewed by OGC’s procurement attorney and rationalized with T&Cs. They are included only as sample provisions.] Details: Position; Position Short Description; Additions (if any) to Standard Search Approach and Methodology in Attachment [ ]; Anticipated annual compensation; Schedule of Fees and Expenses; Professional Fee; Estimated Advertising Expenses; Search-Related Expenses; Direct Out-ofPocket Expenses; Strategic Relationship Discount; Commitment to Diversity and Applicant Flow Tracking; Terms of Payment; Other Administrative Arrangements Unique to the Engagement; Schedule of Events; Address to send invoices; Identifying information (if any) to include on invoices. Supplier will furnish to UC the following described Services: Services for the successful recruitment and placement of professional positions for UC. These searches will be on a retainer basis and are not contingent upon Library of Provisions Revised: 4/26/16 Page 22 of 39 Procurement Services – Library of Provisions placement of a candidate. Each individual recruitment engagement (“Engagement”) will be subject to the terms and conditions of the Agreement, and will be defined by the Statement of Work outlined in Attachment [ ]. A separate Statement of Work will be prepared for each Engagement. Supplier will not begin a search process without a purchase order evidencing a UC commitment to the search. Supplier's objective will be to identify, evaluate and present qualified and interested candidates for UC’s consideration to fill positions, as described below. Services will include, as appropriate, the activities outlined below. 1. Objective: To accomplish this objective, Supplier will: Use best judgment in assessing the qualifications of candidates and will present only individuals who meet the specifications as described in the written position description. Research and outreach to gather names of individuals who hold similar positions in universities and other organizations, or who have the experience and education necessary to perform the duties required by UC. Outreach includes but is not limited to advertising the position in appropriate media, as agreed with the hiring executive. Include UC-identified candidates presented to Supplier for evaluation along with the other candidates being considered. 2. Search Process and Methodology: To find the most qualified and diverse candidates for UC, Supplier will follow its process as described in Attachment _. If any supplement to this process is required for a specific search, it will be incorporated into the Statement of Work. 3. Research and Sourcing of Prospects. Supplier is expected to: Take affirmative and expansive steps to recruit beyond the pool that applies, based on normal job posting processes, and generate a diverse pool of qualified candidates. Identify potential qualified candidates who may not currently be in the job market and tap into their own recruitment sources and prospects to identify and generate interest from qualified individuals. Ensure that any potential candidate referred to UC has a genuine interest and realistic expectations of the terms and conditions of employment, including salary that can be tendered in a job offer. Provide written progress reports to UC as may be required. 4. Assessment and Screening of Prospects. Supplier is expected to: Obtain a resume or curriculum vitae of any prospective qualified candidates. Interview, by phone or in person, any likely prospects initially identified, to further test the candidate’s suitability for and interest in any position. Based on these initial assessments, provide written feedback to UC regarding possible candidates and identify an initial list of potentially suitable prospects. Assessments should be followed by a meeting as soon as possible with one or more designated UC official(s) to provide context to the materials and respond to particular questions about any candidate. 5. Interview and Screening Support. Supplier is expected to: Library of Provisions Revised: 4/26/16 Page 23 of 39 Procurement Services – Library of Provisions Work with UC to schedule a mutually convenient meeting between identified UC representatives and each candidate, and make travel arrangements for the individual(s) as necessary. After each interview, check back with both UC and the candidate(s) for feedback. 6. References Checks. Once UC identifies a final candidate for a particular position, Supplier is expected to: Contact a minimum of three (3) individuals who are capable of providing insight about the candidate’s qualifications and suitability for an offer of employment. Provide a written summary to UC, of the collective comments made by these references, in a timely manner. 7. Closure Process. As the search comes to a close, Supplier is expected to: Assist UC, as needed, in developing a suitable compensation package. Contact all those individuals who have been involved in the search, including potential or actual applicants, and communicate appropriately the disposition of the search. If requested, provide an affirmative action profile (race and gender) for each candidate referred to UC. 8. Compliance: Supplier will comply with all provisions outlined in the Agreement. Written reports will be required to demonstrate recruitment activity. While fulfilling these services for UC, the place of performance will be Supplier’s place of business. UC will not provide working space, equipment, furniture, utilities, or services in the performance of this work. Non-Exclusivity: Supplier acknowledges that the Agreement is non-exclusive and that UC retains the right to use other executive search firms and employment agencies and/or solicit candidates directly on its own behalf to fill any and all positions, other than during the Period of Engagement for the Engagement defined in Attachment B and the Period of Engagement for each subsequent search for which UC retains the services of Supplier pursuant to this Agreement. Supplier agrees not to solicit executive level employees for other clients from each specific campus or location, including the Office of the President, for which a search is rendered, for a period of one year after the end of the Period of Engagement defined in Attachment [ ] (or as extended by mutual agreement), and for one year after the end of the Term for each subsequent search (or as extended by mutual agreement) for which UC retains the services of Supplier pursuant to the Agreement. Exceptions to this non-solicitation provision includes instances where UC fails to pay all undisputed fees and expenses when due or materially violates the terms of this Agreement. Supplier agrees not to solicit a placed candidate indefinitely, while candidate is employed by UC. Applicant Flow Tracking: Supplier agrees to assist UC in fulfilling its obligations as a Federal Contractor. These obligations include the development of a written affirmative action plan and updating it on an annual basis. An important component of such a plan is an analysis of applicant flow and hires to determine whether there are selection disparities in the hiring of minorities and women. Supplier agrees to tracking and reporting applicant flow information for each Engagement to enable UC to analyze qualified candidate gender and race/ethnicity for candidates personally interviewed by the search firm, search committee Library of Provisions Revised: 4/26/16 Page 24 of 39 Procurement Services – Library of Provisions or hiring manager. The details of the methodology to be used to collect and report the required information will be established as part of each Engagement under the Agreement. Quarterly Reporting: Supplier agrees to provide management reports to UC Office of the President, Human Resources department, on a quarterly basis, commencing one quarter after the Effective Date, identifying each search undertaken, in process, or completed by Supplier on behalf of UC, whether under this Agreement or other UC Agreement, including anticipated and actual compensation for the executive position and for Supplier. At the discretion of UC, UC may establish meetings for Quarterly Business Reviews (“QBRs”), including but not limited to reviewing the previous quarter’s activity and discussing opportunities for process improvement. Guarantee. If the executive that Supplier places in any Engagement does not perform satisfactorily and ceases to be employed by UC in any capacity within one year of his/her commencement of employment, Supplier will search for a replacement to fill the original position and provide full credit, but not a refund, of the Supplier prior fees paid, provided the professional fees and expenses for the initial search were paid as agreed and there is no material change to the original position specification. This excludes candidates who leave for reasons other than candidate choice and job performance, such as organizational realignment and restructuring. Additional expenses associated with the replacement search will be charged in the same manner as the original search. Strategic Relationship Discounts: Supplier agrees to offer additional discounts to UC as the annual volume of business in professional fees increases, per the following table. $0 - $____ $_____ - $1 Over $1M an Professional Fees ___% ___% ___% Professional Fee Discount ___ % ___% ___% Support Fee Discount The Strategic Relationship Discount will apply to all searches for UC, whether performed under this Agreement or any separate agreement for an individual UC medical center or campus. Conduct Reference Checks on Successful Candidates. Once a final candidate has been identified and a contingent verbal offer made, it is our practice to speak directly with individuals who are, or have been, in positions to evaluate the candidate’s performance on the job. Supplier relies, therefore, on the information provided to us by those individuals. Written summaries of our conversations with reference providers will be presented to UC on each candidate who receives an offer of employment. Supplier also verifies educational credentials. As a client, UC has the option of requesting a comprehensive background check of credit, criminal and DMV records. Costs for this service will be billed back to UC at cost. However, Supplier does not warrant or guarantee the accuracy of the information provided from 3rd party reports. Facilitate Offer Negotiation. Once a candidate is selected, Supplier will assist UC in finalizing the details of employment to the extent that UC require our active involvement. Upon request, Supplier will help UC construct a competitive employment offer based on realistic market data and UC’s internal compensation strategy. Supplier can present the offer and explain it to the chosen candidate. Finally, Supplier can also act as an intermediary in the event changes or Library of Provisions Revised: 4/26/16 Page 25 of 39 Procurement Services – Library of Provisions adjustments in the initial employment offer are necessary to gain acceptance. Throughout this part of the search process, Supplier will always represent UC and act in accordance with UC’s directions. Follow-Up. Between 60 and 90 days after the candidate has begun work, Supplier will speak with the candidate. Our role will be to assist the candidate in documenting observations and clearly communicating goals and the resources needed to achieve those goals. It is our experience that this early communication contributes greatly to successful relations between the client and placement. STAFFING – TEMP AGENCY [Buyer: These provisions have not yet been reviewed by OGC’s procurement attorney and rationalized with T&Cs. They are included only as sample provisions. SEE ALSO the Patient Protection and Affordable Care Act provisions set forth above. ] [Note: “Agency” refers to the company UC has contracted with under this Agreement to provide Temporary Staff. To conform with T&Cs, consider replacing “agent” and agency with “supplier.” ] “Temporary Staff” means any individual provided by Supplier to UC under the Agreement. Unless pre-approved by UC, Supplier’s services will be billed hourly or on a per shift basis of either eight (8), ten (10) or twelve (12) hours as specified in the Statement of Work. Overtime work must have prior approval. There will be no reimbursement for out-of-pocket expenses. 1. General. Agency and/or Temporary Staff will comply with University policies and procedures and federal, state and local laws, regulations and interpretations governing patient confidentiality and access to, use and disclosure of confidential information. All patient records, statistical, financial and personnel information and any and all other information or data relating to the business of University will be kept in strictest confidence by Agency and/or Temporary Staff, and will not be disclosed in any way without the prior written consent of University . Agency will hold in strict confidence all information obtained in connection with this Agreement and will convey only so much of such information to its individual employees, subcontractors and agents as such persons must know to fulfill the purposes of this Agreement. 2. No Copying or Removal of Records. All reports, references, patient records, and other materials supplied to Agency, both hardcopy and electronic, are and will remain the property of University and are not to be copied, copied to computer files, or removed from the premises, and will be surrendered to University upon expiration or earlier termination of this Agreement. 3. No Distribution; Return of Materials. Agency and/or Temporary Staff will not provide to a third party copies of materials collected or produced as part of this engagement without University’s Library of Provisions Revised: 4/26/16 Page 26 of 39 Procurement Services – Library of Provisions prior written approval. Upon termination of this Agreement for any reason, Agency will promptly return to University all copies of any data, records, or materials of whatever nature or kind, including all materials incorporating proprietary information of University. Agency will also furnish to University all work in progress or portions thereof, including all incomplete work. 4. Supplemental Documents. Upon request of University, Temporary Staff may be required to execute a supplemental agreement of confidentiality, non-disclosure, or assignment of inventions. 5. Compliance with University Policies (Including Compliance Program) 1. Temporary Employee Requirements. Agency warrants that it will comply with all applicable UNIVERSITY policies and requirements which include, but are not limited to, verifying that all Temporary Staff that will be performing services pursuant to this Agreement have completed, signed, and understand the appropriate documentation and requirements (i.e., medical clearance, orientation and related training requirements) necessary to comply with UNIVERSITY policies and regulatory agency standards prior to commencing an assignment at UNIVERSITY. These requirements are set forth in UNIVERSITY Health System Policy No. 7304, a summary of which is attached hereto as Exhibit [ ]. This includes, but is not limited to, the documents and requirements indicated on the “UNIVERSITY Health System Verification Checklist for Registry / Contract / Temporary Staff” and the “Instructions for Completing Temporary Staff Documentation” which may be found on the following website at:[ ] 2. Documentation. Agency will maintain this documentation in its file for the Temporary Staff. This documentation must be current at all times. This documentation is subject to audit at any time by University for compliance purposes. Upon request, Agency will send copies of this documentation to University. 3. Ligation Disclosure Obligations. Agency represents and warrants that, to the best of its knowledge, except as set forth in Exhibit D, Agency (nor any Temporary Staff) is not engaged in, or a party to, or threatened with any suit, action, proceeding, inquiry, investigation or claim alleging health care fraud or that could have a material adverse effect on Agency’s ability to perform under this Agreement. Agency agrees to promptly disclose to the University any material change in status of the foregoing throughout the term of this Agreement. 4. Compliance with University Policies. In the performance of Services under this Agreement, Agency agrees and will ensure that its Temporary Staff agree to abide by all applicable University policies and procedures, including but not limited to those relating to HIPAA compliance and/or Data Security. Agency further agrees that the performance of Services hereunder will be subject to UNIVERSITY’s Additional Terms and Conditions – Data Security, a copy of which is attached hereto and incorporated herein by this reference as Exhibit [ ]. 5. Immigration & Naturalization Services Compliance. All Agency Temporary Staff employed by Agency will be US Citizens or legal aliens in accordance with the employment verification provisions of the Immigration and Nationality Act (INA), according to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) signed on September 30, 1996 and any revisions of such Act. It is the Agency’s responsibility to verify legal alien's compliance to all current laws and regulations of the United States and state of California as they pertain to alien status and employment eligibility. 6. University Holidays. Library of Provisions Revised: 4/26/16 Page 27 of 39 Procurement Services – Library of Provisions Agency furnished Temporary Staff will generally adhere to University’s holiday schedule as referenced in _____________. 7. Warranty 1. The parties acknowledge that University, in selecting the Agency to perform the services hereunder, is relying upon the Agency's reputation for excellence in the performance of the services required hereunder. The Agency will perform the services in the manner of one who is a recognized specialist in the types of services to be performed. 2. Agency warrants that (i) it, and each of the Temporary Staff it uses to provide and perform the Services under this Agreement, will have the necessary knowledge, skills, experience, qualifications and resources to provide and perform the Services in accordance with this Agreement; and (ii) the Services will be performed in a diligent, workmanlike manner which meets or exceeds industry standards applicable to the performance of such Services. 3. Agency warrants that it will at all times and at its own expense (i) comply with all applicable laws, rules, regulations, and governmental orders and applicable codes of practice, now or hereafter in effect relating to its performance of the Services provided under this Agreement; (ii) pay all fees and other charges required by such laws, rules and regulations, codes and orders and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications necessary to perform its obligations under this Agreement. 7. Examination of Records, Audits A. External Audits and Investigations. Until the expiration of two (2) years after the furnishing of all Services pursuant to this Agreement, Agency will make available, upon written request to the Secretary, or upon request to the Comptroller General, of any of their duly authorized representatives, the Agreement, and books, documents and records of Agency that are necessary to verify or certify the nature and extent of Agency’s invoiced charges for services furnished to UNIVERSITY. B. If Agency carries out any of the duties of the Agreement through a subcontract, with a value or cost of $10,000 or more over a twelve-month period, with a related organization (as that term is defined by regulation), such subcontract will contain a clause to the effect that until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization will make available, upon written request to the Secretary, or upon request to the Comptroller General, or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify or certify the nature and extent of Agency’s invoiced charges for services furnished to UNIVERSITY. 8. Proprietary Rights All information developed by Agency Temporary Staff pursuant to performance of services under any orders under this Agreement will be the sole property of UNIVERSITY without UNIVERSITY’s payment of additional consideration, and will be furnished to UNIVERSITY on the earlier of either (I) completion or termination of this project, or (2) upon earlier termination of Agency's and/or Temporary Staff services under this Agreement. 9. May want to include in SOW: A. Place(s) of Service. Unless otherwise agreed upon, work activity will take place at the location designated by UNIVERSITY. If any portion of the work is to be performed on-site, UNIVERSITY will provide office workspace, furniture, phone, personal computer with enterprise PC tools and mainframe access, Library of Provisions Revised: 4/26/16 Page 28 of 39 Procurement Services – Library of Provisions 8. as appropriate and necessary, and as otherwise in compliance with UNIVERSITY security and access policies that UNIVERSITY may modify from time-to-time at the request of their management or auditors. B. Services. 1. Agency will provide and make available to UNIVERSITY such qualified resources as will be necessary to perform the services called for under this Agreement. 2. Agency understands and agrees that the Services to be provided to UNIVERSITY under this Agreement will be provided on a day-to-day, asneeded, basis and that UNIVERSITY in its sole discretion will determine its need, if any, for Services or the continuation of such services. 3. Agency agrees to provide Services upon the written request of UNIVERSITY and further agrees that the cost of such services will not exceed the limitation of cost set forth in UNIVERSITY’s written request. 4. Service classifications and rates applicable to services to be provided under this Agreement will be limited to those classifications set forth in the attached Exhibit [ ] which by this reference is made a part of this Agreement. This Exhibit [ ] may be revised from time to time by mutual written agreement between the parties. 5. When requesting services, UNIVERSITY will specify the service classification(s) required; the applicable rate for each specified service classification; the location services are required; and the time and duration of services applicable to the request, including beginning date(s) and, when applicable, ending date(s). 6. UNIVERSITY will have sole discretion to establish the qualifications necessary for the performance of any service to be rendered under this Agreement. Should UNIVERSITY become dissatisfied with the performance of any Temporary Staff assigned by Agency to UNIVERSITY under this Agreement, UNIVERSITY will notify Agency with details of the unsatisfactory performance and Agency will use its best efforts to replace that individual as soon as reasonably practical within a mutually agreeable time period. With the exception of personal emergencies, there will be no modification or changes in the assignment or scheduling of Temporary Staff personnel assigned to UNIVERSITY under this Agreement without the prior written approval of UNIVERSITY. 7. UNIVERSITY may hire, as an employee or supplier of UNIVERSITY, Temporary Staff at any time at no additional cost to UNIVERSITY. Additional terms and conditions are listed on Exhibit [ ] and hereby incorporated into this agreement by reference. STAFFING – TEMP AGENCY, MEDICAL OPERATIONS [Buyer: These provisions have not yet been reviewed by OGC’s procurement attorney and rationalized with T&Cs. They are included only as sample provisions. SEE ALSO the Patient Protection and Affordable Care Act provisions set forth above.] A. Billing Services 1. Library of Provisions UC, through its faculty members (“Physician(s)”), furnishes professional medical services to patients at UC Health System hospitals and clinics and elsewhere. Revised: 4/26/16 Page 29 of 39 Procurement Services – Library of Provisions 2. The School of Medicine, acting pursuant to authority delegated by The Regents of the University of California to the Dean/Provost of the School of Medicine, has developed and approved the UC School of Medicine Professional Services Compliance Program (the “Compliance Program”) to be administered under the direction and oversight of a compliance officer (the “Compliance Officer”). A copy of the current policies and procedures of the Compliance Program are attached hereto as Attachment _ and incorporated herein by this reference. The Compliance Program provides that: “It is the policy of UC that all professional services rendered by UC will be provided and documented in accordance with federal and state laws, regulations, and interpretations. It is the policy of UC that all Responsible Parties…will comply with the guidelines set forth in [the Compliance Program] document and applicable University of California (UC) System guidelines stated in the University of California Medical School Compliance Plan.” The Compliance Program defines “Responsible Parties” to include billing services and collection agencies. 3. Supplier provides administrative, billing, and management services to ______________. 4. UC desires to contract with Supplier to provide the billing, administrative and management services specified in this Agreement, and Supplier desires to provide such services and to undertake the obligations and responsibilities of a responsible Party under the Compliance Program. 1. Library of Provisions Personnel. Supplier will provide professional and administrative staff (“Supplier Personnel”) qualified to furnish the Services. In the event UC is dissatisfied with the services provided by any Supplier employee assigned to service the UC account, UC will have the right to request a replacement. In making such a request, UC agrees that UC will not discriminate against Supplier Personnel based upon physical or mental disability, medical condition, race, color, national origin, ancestry, religion, sex, marital status, veteran status, sexual orientation or age, to the extent required by applicable federal, state and local laws, regulations and ordinances. Supplier hereby represents, warrants and covenants that as of the Effective Date and throughout the term of the Agreement, no Supplier Personnel has ever been excluded from the Medicare or Medicaid programs or convicted of any offense related to the provision of healthcare services or fraud. Supplier will provide written documentation in a form reasonably acceptable to UC and UC Chief Compliance Officer demonstrating an appropriate level of experience, training and expertise for each of the Supplier Personnel who may be assigned any responsibilities with respect to the performance of this Agreement, and Supplier will not utilize any such Supplier Personnel until approved by UC and the Compliance Officer. Such documentation may include, as appropriate, evidence of professional certification, performance reviews and audit results, and evidence of continuing education. Nothing in the foregoing will be construed to restrict Supplier from engaging independent contractors such as outside coders (“Contracted Personnel”) to provide services under this Agreement, provided such individuals: (a) meet the requirements set forth in this Agreement, including this Section 1.2 and Section 1.5; (b) are contractually required to comply with the terms of this Agreement; and (c) are subject to the Supplier Compliance Program described in Section 5.2 below. Supplier will provide a copy of Supplier’s agreement with any Contracted Personnel that Supplier proposes to utilize in the performance of this Agreement to UC and Compliance Officer and use of any such Contracted Personnel will be subject to the prior approval of UC and UC Chief Compliance Officer. Revised: 4/26/16 Page 30 of 39 Procurement Services – Library of Provisions 2. 3. Patient Accounting Information System. Supplier will utilize the information system designated by UC from time to time (the “UC Information System”) for all billing, patient accounting, and other related patient account data management. This Section 1.3 will not prohibit a supplier from maintaining data regarding UC activities which are the subject of this Agreement on additional information systems for management or consulting purposes, provided such additional information systems are approved by UC and the Compliance Officer. Any additional information systems for UC data will be identified in Exhibit [ ] to this Agreement. All patient information whether accessed electronically or via paper will be maintained by supplier in accordance with the Business Associate Agreement attached as Exhibit [ ] . Physician Education by Supplier. Any educational information or programs prepared by Supplier for UC Physicians or personnel, including any written materials proposed to be distributed at such programs, will be subject to the prior written approval of the Compliance Officer or his/her designee. 4. Expertise. Supplier will maintain expertise in CPT, HCPCS and ICD-9-CM coding common to UC, third-party reimbursement, data collection, and leading practices for billing and collection procedures. Supplier will notify UC and the Compliance Officer of material changes proposed or implemented by governmental or private payors with respect to coding, reimbursement or documentation requirements that come to Supplier’s attention. 5. Mail Service. Supplier will supply daily courier service, at its sole expense, to transport documents form UC’s place or places of business to Supplier. 6. Enrollment. Supplier will cooperate with health plan enrollment efforts of UC administration, will perform such services relating to health plan enrollment as set forth in Exhibit [ ] to this Agreement, and will promptly furnish to such administration, with a copy to the Compliance Officer, any information relating to invalid provider numbers and/or group numbers. Supplier will maintain files of all correspondence and applications submitted to any governmental or private health plan with respect to UC Physicians and will make copies of all such documents available to UC and Compliance Officer pursuant to Section 9.2 of this Agreement. Supplier will notify UC and Compliance Officer of any non routine inquires, requests for additional information, or notices from any payor with respect to the enrollment of any UC Physician (including any such inquires, requests, or additional information or notices questioning the qualification of any UC Physician for enrollment or the propriety of reassignment by any UC Physician) within three (3) working days of receipt by the Supplier of such inquiry, request, or notice. 5. Accounts Receivable. Accounts receivable will at all times be the sole and exclusive property of UC. Supplier will utilize a UC-controlled bank lockbox and will route all payments received on behalf of UC to such bank lockbox. 6. Obligations of UC. 1. Library of Provisions Accuracy of Information. UC will use responsible care to provide accurate information relating to patient insurance and professional medical services, including dictation, discharge summaries, medical record entries, charge documents, and other information provided by UC to Revised: 4/26/16 Page 31 of 39 Procurement Services – Library of Provisions Supplier. 2. 7. Compliance Program Obligations. 1. Library of Provisions Access to Information. UC will provide to Supplier reasonable access to patient registration data, dictation, discharge summaries, medical record entries, charge documents, and other data necessary to perform Supplier’s services based upon the minimum necessary standard and in accordance with the Business Associate Agreement contained in Exhibit [ ]. In General. a. UC Compliance Program Binding on Supplier. Supplier acknowledges that it has received a copy of the policies and procedures adopted in connection with the Compliance Program, a copy of which as of the Effective Date is attached hereto as Attachment [ ]. Supplier agrees to abide by all the terms and conditions of the Compliance Program, as the same may be amended from time to time. The University or the School of Medicine will notify Supplier in writing of any modifications or amendments to the Compliance Program, which modifications or amendments will be binding upon Supplier upon receipt thereof. b. Reporting Pursuant to Compliance Program. Supplier acknowledges and agrees that Supplier is a Responsible Party as that term is defined in the Compliance Program, and that as a Responsible Party Supplier is bound by all policies and procedures relating to Responsible Parties, including, but not limited to, the obligation to report possible compliance issues in accordance with Section VI.B. of the Compliance Program. c. Reporting of Overpayments and Material Deficiencies. In the event of discovery by Supplier of any billing, coding, or other policies, procedures and/or practices with respect to University claims that Supplier believes have potentially resulted in an overpayment to any payor and/or material noncompliance with governmental or private payor billing or reimbursement statutes, regulations, policies or directives, Supplier will notify the Compliance Officer in writing of such overpayment or material noncompliance within ten (10) working days of such discovery, and in all events with sufficient prior notice to enable Supplier and the Compliance Officer to coordinate their notification of other affected parties as necessary. Supplier and Compliance Officer will cooperate in good faith to jointly review and, as necessary, investigate each such overpayment or material noncompliance to develop an appropriate remedial action plan and to coordinate notice to the payor and to the OIG if and as required. Supplier will promptly notify the Compliance Officer of the results of all other internal and external reviews and audits as they relate to the University. d. FOIA Issues. Supplier will provide the Compliance Officer with reasonable advance notice of any proposed disclosure pursuant to the Freedom of Information Act (FOIA”), 5 U.S.C. §552 (b) (4), of UC-related information to a government agency. The Compliance Officer will identify in wiring to Supplier any portions of the proposed disclosure that UC believes constitute trade secrets or confidential commercial or financial information (including, but not limited to, confidential patient records) within the meaning of Section 552(b) of FOIA and Supplier will so identify those portions to the applicable government agency. Supplier will promptly forward to the Compliance Officer Revised: 4/26/16 Page 32 of 39 Procurement Services – Library of Provisions any prior notice received of a potential release of records under FOIA relating to UC and will work cooperatively with UC to challenge such release if UC reasonable believes such records to be exempt from disclosure. 2. Supplier Compliance Program. Supplier will develop, implement, and maintain a compliance program (the “Supplier Compliance Program”) designed to promote adherence to applicable federal and state laws, regulations and interpretations relating to the Services. The Supplier Compliance Program will be subject to review by the Compliance Officer and must, at a minimum, address each of the key elements of an effective corporate compliance plan under the Federal Sentencing Guidelines for Organizations, giving due consideration to the OIG’s Compliance Program Guidance for Third-Party Medical Billing Companies. U.S. Sentencing Guidelines §8A1.2, Application Note 3 (k) is incorporated herein by this reference. The Supplier Compliance Program as of the Effective Date is attached hereto as Attachment [ ] . Supplier will, in writing, promptly notify the University and the Compliance Officer of any modifications or amendments to the Supplier Compliance Program throughout the term of this Agreement. 1. Monitoring. Supplier acknowledges and agrees that, pursuant to the Compliance Program, Supplier will be subject to routine monitoring, review, and, potentially, external audit (limited to those Supplier office(s) used in performance of this Agreement) as set forth in Section V of the Compliance Program. Supplier agrees to cooperate fully in any such review conducted in connection with the administration of the Compliance Program. 4. Attendance at UC Compliance Programs. The School of Medicine will, from time to time, conduct educational sessions and training programs relating to coding, documentation, and other compliance issues. Supplier will ensure that all appropriate Supplier staff attends such programs at no additional cost to the University or the School of Medicine. The School of Medicine will use its best efforts to provide reasonable advance notice of such sessions to Supplier and to create flexible scheduling to accommodate the various participants. 5. Disclosure of Litigation. Supplier represents and warrants that, except as set forth in Exhibit [ ], Supplier is not engaged in or a party to or threatened with any suit, action, proceeding, inquiry, enforcement action, investigation, claim or demand or legal, administrative, arbitration or other method of settling disputes or disagreements that have been or are required to be disclosed in Supplier’s current or future financial statements pursuant to GAAP or applicable federal or state securities laws, rules or regulations (a) relating to billing practices or alleging healthcare fraud or abuse on the part of Supplier or (b) that could have a material adverse effect on Supplier’s continued ability to perform any or all of its duties and obligations under this Agreement (collectively, “Disputes”). Supplier covenants to promptly disclose to the Compliance Officer the existence or material change in status of any Dispute throughout the term of this Agreement. 8. Term and Termination. 1. Annual Review. Supplier will submit in writing, no later than sixty (60) days prior to the end of each contract year, satisfactory evidence of compliance with each of the following Supplier Standards: (a) continued utilization of the UC Information System in accordance with Section 1.3; Library of Provisions Revised: 4/26/16 Page 33 of 39 Procurement Services – Library of Provisions (b) maintenance of the Supplier Compliance Program in accordance with Section 5.2; (c) documentation of appropriate levels of education, training and expertise of Supplier Personnel in accordance with Section 1.2; (d) an updated and current Exhibit [ ] to the Agreement; (e) evidence of continued compliance with the Compliance Program in accordance with Section 5.1; (f) evidence and assurance that no employee or independent contractor of Supplier has been excluded from participation in the federal health care programs or present on the exclusion data base of the Office of Inspector General (OIG) or the Government Services Administration (GSA); (g) evidence of attendance of appropriate Supplier staff at UC compliance programs in accordance with Section 5.4; and (h) evidence of cooperation with the monitoring, review and audit functions of the Compliance Program as well as submission to, and cooperation with, an annual review to assess continuing compliance with the Compliance Program. The University may terminate this Agreement upon notice to Supplier effective at the end of any contract year if, in the University’s reasonable judgment, Supplier has failed to submit satisfactory evidence of compliance as required by this Agreement. 2. Termination for Noncompliance. The Compliance Officer, on advice of legal counsel, may terminate the Agreement at any time upon notice to Supplier based upon a determination, in the Compliance Officer’s reasonable discretion, that Supplier has violated any term of this Agreement that presents a compliance risk for the University or the School of Medicine, or any policies or procedures of the Compliance Program. No failure by the Compliance Officer in a particular instance to insist upon the performance of any of the terms or conditions of this Agreement or of the Compliance Program will be construed as a waiver or relinquishment of any rights under this Agreement, and the obligations of the Supplier to comply with the terms and conditions of this Agreement and the Compliance Program will continue in full force and effect. 3. Termination for Bankruptcy. In the event Supplier will cease conducting business or file for business protection (chapter 11 of the U.S. Bankruptcy Act), the Agreement will terminate immediately and the University will be recognized as the sole owner of all materials (excluding Supplier-owned computer hardware/software) used in the processing services contracted for herein. Access to all materials pertaining to University business will be unrestricted, and Supplier will assist the University in obtaining access and possession of these materials in a timely manner so as to prevent disruption of the University’s operations. 4. Transfer of Accounts and Documentation. Upon expiration or termination of this Agreement, Supplier will deliver and transfer to the University promptly upon request, all the open and closed accounts, records, and other property of the University in its custody, together with all documents, working papers, and other materials relating thereto (“Documentation”), will make a final accounting of its operation under this Agreement, and will tender its check in settlement of any amounts due the University. Custody of Documentation relating to closed accounts will be as set forth in Exhibit [ ]. 9. Library of Provisions External Audits and Investigations. Supplier will cooperate, under the direction of the UC Compliance Officer, with any audits or investigations of the University by any governmental Revised: 4/26/16 Page 34 of 39 Procurement Services – Library of Provisions or other third-party payor or insurance carrier, except to the extent specifically prohibited by law. Supplier will notify the Compliance Officer in writing within one (1) day of receipt by Supplier of any subpoena or other request for information (including requests for interviews of Supplier personnel) other than routine requests from patients or payors in the ordinary course of business regarding University’s billing, services, documentation, or this Agreement. As directed by the UC Compliance Officer, Supplier will promptly correct any procedures determined by UC to be not in compliance with generally accepted accounting practices or UC compliance requirements. 10. Books and Records. 1. Compliance with Law. Supplier will comply with all laws, regulations and ordinances now in effect or hereafter adopted regarding the retention and availability of its books and records related to the performance of its obligations under this Agreement for the University. Such compliance will include, without limitation, compliance with the appropriate provisions of the Social Security Act as relates to the retention of records and as more particularly provided below. For the purpose of implementing the appropriate provisions of the Social Security Act , as amended, and any written regulations thereto, Supplier will comply with the following statutory requirements governing the maintenance of documentation to verify the cost of services rendered under this Agreement: (a) until the expiration of four (4) years after the furnishing of all Services pursuant to this Agreement, Supplier will make available, upon written request to the Secretary, or upon request to the Comptroller General, of any of their duly authorized representatives, the Agreement, and books, documents and records of the Supplier that are necessary to certify the nature and extent of such costs, and, (b) if Supplier carries out any of the duties of the Agreement through a subcontract, with a value or cost of $10,000 or more over a twelvemonth period, with a related organization (as that term is defined by regulation), such subcontract will contain a clause to the effect that until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization will make available, upon written request to the Secretary, or upon request to the Comptroller General, or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and extent of such costs. 2. Access to Books and Records. Supplier will maintain and retain complete and accurate source documents, billing and collection information, and other books and records necessary or appropriate for the performance of the Services. The University or its designated representatives will be permitted access upon reasonable notice to all books and records relating to the performance of this Agreement in the possession and control of Supplier, including all billing files. The University may request delivery of this data in either hard copy or through industry standard electronic media. All billing files used in the processing of the University’s information will be the sole and exclusive property of the University. Nothing in this Section 9.2 will be construed to limit the School of Medicine’s access to books and records or right to monitor and audit Supplier’s activities pursuant to the Compliance Program. 3. Supplier Polices and Procedures. Supplier will provide the University and the Compliance Officer with a master copy of all Supplier policies, procedures, and standards used by Supplier in performing the Services and will provide prompt written notice of any modifications or Library of Provisions Revised: 4/26/16 Page 35 of 39 Procurement Services – Library of Provisions amendments thereto. Such documentation will be provided by the Supplier at no additional charge to the University. The University agrees to maintain the confidentiality of Supplier’s documentation, and will not reproduce or distribute this documentation to any person(s) not affiliated with the University. Upon termination of the Agreement, the University agrees to return said documentation to Supplier. 11. Continued Validity. If at any time either party reasonably believes in good faith based upon the written opinion of reputable health care counsel that this Agreement or the performance by that party of any of its obligations under this Agreement violates any law or regulation, state for federal, or could result in the loss of restriction of that party’s license or that party’s right to participate in Medicare, Medi-Cal or any other governmental program, then that party may, upon written notice, require the other party to enter into good faith negotiations to renegotiate the terms of this Agreement. If the parties are unable to reach an agreement concerning the modification of this Agreement with thirty (30) days after the date of the notice seeking renegotiation then either party may immediately terminate this Agreement by written notice to the other party. 12. Independent Contractors. Supplier will provide the Services as an independent contractor. At no time will Supplier or Supplier’s employees, sub-suppliers, agents, or assigns be considered employees of UC for any purpose, including but not limited to workers’ compensation provisions. 13. Possible Attachments for Billing Agreements 1. 2. 3. 4. UC Compliance Program Supplier Compliance Program Authorization to Resolve Accounts Supplier Litigation USE OF UC FACILITIES [Buyer: These provisions have not yet been reviewed by OGC’s procurement attorney and rationalized with T&Cs. They are included only as sample provisions.] Use of UC facilities (Facilities)will be for the period of one (1) year following execution, and will extend automatically for successive 12 month terms unless either party terminates with written notice at least 30 days before the Renewal Date of any term. Use of UC facilities is subject to the approval of UC on an individual basis; each Activity must be pre-arranged with the individual UC Location. UC will have the right to terminate Organization's use of facilities with 30 days’ notice without cause and immediately for cause, including, but not limited to, criminal activities, a breach of the Agreement, any conduct that puts people or property at risk, or for similar reasons. UC will have no liability for loss, damages, or claims incurred by Organization in connection with its use of facilities or UC's revocation Library of Provisions Revised: 4/26/16 Page 36 of 39 Procurement Services – Library of Provisions of permission to use facilities. Users are not employees, agents or representatives of UC. Users are acting solely as representatives and/or employees of their Organization while working in UC facilities. UC will not provide Worker's Compensation or Liability Insurance for any User's benefit. UC will not be responsible for any medical expenses or liabilities that Organization or Users may incur. Organization will carry General Liability Insurance with minimum limits of $1 million per occurrence and $2 million general aggregate and Workers Compensation insurance that covers Users. Prior to and as a condition of the use of the facilities, Organization will name The Regents of the University of California as an additional insured on Organization’s general liability policy and provide a certificate of insurance demonstrating that Organization maintains the required insurance and a copy of the additional insured endorsement naming The Regents of the University of California as an additional insured. The name of the Certificate Holder will be The Regents of the University of California, Procurement Services, [location]. UC agrees that the results generated by Organization through the use of the Facilities under this agreement including, but not limited to, any intellectual property, will be owned by Organization. UC will not assert ownership to any intellectual property developed by Organization as an external user of the Facilities under this Agreement based solely on equipment use. UC employees will be available to provide generic equipment instruction, safety instructions, materials compatibility information and equipment maintenance. It is not necessary for UC employees to receive any of Organization’s confidential or proprietary information and Organization agrees not to provide any confidential or proprietary information to any UC employee or student during Organization’s use of the Facilities under this Agreement. The Facilities are used by multiple internal and external users. Organization will be solely responsible for protecting any information, data or results brought into the facility by Organization or developed by Organization through the use of the Facilities under this Agreement. The Facilities benefit greatly from the open exchange of ideas. When appropriate, all users are encouraged, but not required, to share information and data, particularly when such information or data relates to any new or improved uses of the equipment and technology housed in the Facilities. If Organization chooses to share such information, all future users may use the information in future projects. Organization acknowledges that UC does not have any liability with respect to Organization’s access, participation or use of the Facilities or any loss of information resulting from such participation or use. Organization assumes all responsibility for any property (including, but not limited to, any equipment, data, or assets) brought by Organization into Facilities. UC will not be liable for damages, lost or stolen property brought by Organization into the Facilities. Organization warrants that Users will bear complete responsibility for their own personal safety, that they will operate all equipment in a safe and professional manner, in accordance with the operating instructions and UC and Facilities rules, and that their knowledge of their area of study is adequate to permit the safe pursuit of research work in conjunction with their specific project. UC will bear no responsibility for project development or success. Organization will bear complete responsibility for success or failure of project. Organization is responsible for payment of facility fees in accordance with the Facilities fee structure (see Attachment [ ]). Fees will be paid in a timely manner, regardless of project outcome. Library of Provisions Revised: 4/26/16 Page 37 of 39 Procurement Services – Library of Provisions Organization will immediately defend, protect, indemnify and hold UC, its officers, employees and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys' fees), or claims for injury or damages arising out of or in any way connected with this Agreement, including, without limitation, claims for loss or damage to any property, or for death or injury to any person or persons with the exception of those liabilities, losses, expenses, attorney's fees or claims for injury and damages arising from the sole negligence of the UC, its officers, agents, or employees. Organization warrants that Users have been provided with, and have read and agree to comply with all training requirements, rules and safety provisions and that Users have asked any questions that they may have about facility procedures, policies, rules and/or guidelines and received and understood the answers to their questions. Organization will have its User(s) complete and sign a UC Waiver of Liability – Required Activities ("Waiver") prior to the use of Facilities, and Organization will submit the signed Waiver(s) to UC Procurement Services prior to use. Organization represents that it has read and agrees to the terms and conditions of this Agreement, and that Organization has asked any questions that it may have about this Agreement or any other information it has been provided before signing this Agreement. Library of Provisions Revised: 4/26/16 Page 38 of 39 Procurement Services – Library of Provisions Communications with Bidders NOTICE OF NON-AWARD [Buyer: Procurement recommends that after an award is made, UC locations provide unsuccessful bidders with written notification that an award has been made, either by letter or email. This notification might include language similar to the following:] University of California would like to thank you for responding to RFP#______ . We appreciate your interest in doing business with (fill in campus name). The proposal that your company submitted has been evaluated using the requirements specified in the RFP. As a result of that evaluation, the University has determined that your offer did not best meet the University’s needs. We have awarded a contract to another bidder. [Choose one of the following paragraphs]: Should you have questions or concerns regarding the solicitation or award of the contract, we ask that you first contact the issuing Buyer listed in the RFP with your questions or concerns. If your questions or concerns cannot be resolved informally, you may file a formal written protest with the University contracting officer/Buyer, who will escalate this protest to the proper authority. Protests should use the phrase “Formal Bid Protest RFP# _____”. Under UC policy, formal written protests must be filed promptly (and in any event within two calendar weeks after the complainant knows or should have known the facts giving rise to the protest). -orFrom the date of UC’s Notice of Non-Award, any prospective Supplier may only file a protest within two calendar weeks of that date. Refer to the University of California Business and Finance Bulletin BUS-43, Section III, Part 1.E for UC’s protest procedure, which may be found at http://policy.ucop.edu/doc/3220485/BFB-BUS-43. We appreciate your interest in doing business with us and hope you will continue to respond to future requests issued by the University of California. Library of Provisions Revised: 4/26/16 Page 39 of 39
