Item 06 Approval of New Licensing and Rebate Agreements with Bound Tree Medical for Operative IQ Inventory Management oc V e ..
Florida
AGENDA ITEM COVER SHEET
Meeting Date: January 19, 2021
Item # OLP
Reviewed By:
Contact Name: Fire Chief John Miller Department Director: John M'
Contact Number: 407-905-3140 City Manager: Robert Fran /7///
Subject: Approval of New Licensing and Rebate Agreements with Bound Tree Medical for
Operative IQ Inventory Management
Background Summary:
The Ocoee Fire Department(OFD) utilizes Bound Tree Medical (BTM)to purchase EMS supplies that are stocked
on all rescue and engine units, and used by Department personnel on medical calls. In 2018, BTM offered to
extend the terms of its contract with Seminole County to the City of Ocoee for OFD to utilize, which the Honorable
Mayor and City Commission approved. The established arrangement with BTM has been shown to be an effective
and efficient method to procure EMS supplies for OFD. Additionally, in the same year, Commission approved the
entrance into licensing and rebate agreements with BTM for the use of the Operative IQ (Op IQ) inventory
management system and UCaplt vending machines. Further, in December 2020, Commission approved OFD to
continue, to piggyback off of Seminole County's new contract amendment, #IFB-602939-17/TLR, in order to
secure the most competitive pricing for the EMS supplies, pharmaceuticals, and narcotics necessary to effectively
serve the community's needs.
BTM has offered new rebate and licensing agreements for Op IQ software and UCaplt hardware and software
for three years. These rebate and licensing agreements provide that OFD agrees to purchase at least $129,000
a year for three years in EMS equipment and supplies from BTM. In return, BTM will coverall fees and expenses
to provide OFD with the Op IQ software and UCaplt vending machine hardware and software (savings of
$40,206). Based on EMS supply expenditures since beginning fire-based transport, this threshold will not be an
issue and has been included in the FY 2021 budget.
Operative IQ is a software service provided by BTM, which works in tandem with the fire stations' UCaplt Cap 5
vending machines for advanced electronic inventory management and tracking of EMS supplies,
pharmaceuticals, and narcotics. Both the Operative IQ software and the UCaplt software and hardware have
assisted OFD in improving inventory and narcotic control and accountability.
Issue:
Should the Honorable Mayor and City Commission approve entrance into Licensing and Rebate Agreements with
Bound Tree Medical, for the use of the Operative IQ inventory management system, UCaplt hardware and
software, and to be granted rebates to cover the cost of three years of licensing fees?
Recommendations:
Staff recommends approval of entrance into the 3-year licensing and rebate agreements.
Attachments:
- BTM Operative IQ Licensing Agreement (includes rebate information)
- BTM UCAPIT Purchase and Rebate Program Agreement
Financial Impact:
None, as the EMS Supplies budget includes sufficient funding to meet the purchase threshold with
BTM.
Type of Item: (please mark with an "z')
Public Hearing For Clerk's Dept Use:
Ordinance First Reading X Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion & Direction
X Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney _ N/A
Reviewed by Finance Dept. a� ,� fto N/A
Reviewed by N/A
2
BoUnd Tree
Operative IQ Licensing Agreement
Customer Company
Name: City of Ocoee Bound Tree Medical, LLC
Address: 563 South Bluford Ave 5000 Tuttle Crossing Blvd.
Ocoee, FL 34761 Dublin, OH 43016
Attention: Corey Bowles
E-mail: cbowles@ocoee.org
This Licensing Agreement(the"Agreement")is hereby entered this_ CONSEQUENTIAL, OR EXEMPLARY DAMAGES. IN NO EVENT
day of , 2021 (the "Effective Date") by and WILL COMPANY BE LIABLE FOR ANY DAMAGES OR
between Company and Customer (referred to herein as the NONCONFORMITY OF THE SOFTWARE AND SOFTWARE
"Parties" or"Party"). ACCESSORIES.
1. Scope. The terms and conditions below represent the 9. Force Majeure. In the event that either Party is prevented
terms and conditions under which Company will grant a from performing or is unable to perform any of its
license to Customer for the Operative IQ Mobile Inventory obligations under this Agreement (other than payment of
Management System for Emergency Medical Services (the amounts due hereunder)due to any Act of God,fire,casualty,
"Software"). flood, war, strike, lockout, epidemic, destruction of facilities,
2.. Term. The term of this Agreement shall become effective as riot, insurrection, or any other cause beyond the
of the Effective Date and shall remain in full force and reasonable control of the Party invoking this Section, such
effective for 3 year(s) after the Effective Date unless party's performance shall be excused and the time for the
otherwise terminated in accordance with the provisions set performance shall be extended for the period of the delay
forth herein. or inability to perform due to such occurrences.
3. Grant of Non-Exclusive License. Subject to the terms and 10. Confidentiality. Neither Party may disclose the terms and
conditions of this Agreement, Company hereby grants to conditions of this Agreement to a third party without the
Customer a non-exclusive irrevocable license to the Software prior written consent of the other, except as required by law
during the Term(the"License"). or as necessary to perform its obligations under this
4. Licensing Fee. The fee for each License shall be as specified Agreement.Notwithstanding the foregoing,Company may use
on Exhibit A, per Contract Year, payable as of the respective certain Customer information as input data in a database
Contract Year. For this purpose a "Contract Year" is the where Customer's identity shall be kept anonymous. Neither
twelve (12) consecutive month period beginning on the party will make any press release nor other public
Effective Date, and each succeeding Twelve (12) month announcement regarding this Agreement without the other
consecutive 12 month period during the Term. If this party's prior written consent except as required under
Agreement ends prior to the end of a Contract Year, the applicable law or by any governmental agency.
annual License fee will be pro-rated to reflect the number of 11. Termination. Each Party reserves the right to terminate the
months in the final Contract Year. The number of Licenses Agreement if: (a) the other Party ceases to function as a
issued under this Agreement is as specified in Exhibit A. going concern in the normal course of business;(b)the other
5. Software Accessories. Customer may purchase Software Party commits or suffers any act of bankruptcy or insolvency;
Accessories needed to operate the software at the prices (c) upon notice of termination after notice of a material breach
specified on Exhibit A and shall be payable at the time of has been given and such breach is not cured within thirty(30)
purchase. days following the notice of breach. Company may terminate
6. Set Up and Training. Set up of the Software shall be this agreement at any time upon written notice to the
performed by the software developer at the price specified on Customer.
Exhibit A. 12. Relationship of Parties. Each Party is an independent
7. Warranties. The Software and Software Accessories carry contractor of the other. Neither Party shall be the legal
only those warranties made for them by their manufacturers. agent of the other for any purpose whatsoever and therefore
The duration of the warranty shall extend for the length of has no right or authority to make or underwrite any promise,
time set by the manufacturer. THERE ARE NO OTHER warranty, or representation, to execute any Agreement, or
EXPRESSED OR IMPLIED WARRANTIES, INCLUDING ANY otherwise to assume any obligation or responsibility in the
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A name of or on behalf of the other party, except to the extent
PARTICULAR PURPOSE. specifically authorized in writing by the other Party.
8. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR 13. Assignment. This Agreement and the rights and obligations
PUNITIVE, SPECIAL, PROXIMATE, INCIDENTAL, hereunder shall be binding upon and inure to the benefit of
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V20180207
Bound Tree Operative IQ Licensing Agreement
the Parties hereto and their respective successors and assigns; another jurisdiction. Each party irrevocably agrees that any
provided that no Assignment,sale or other assignment of this legal action, suit or proceeding brought by it in any way
Agreement can occur unless either(a)the transfer occurs by arising out of this Agreement must be brought solely and
way of merger, reorganization, consolidation, amalgamation, exclusively in,and will be subject to the service of process and
or as part of a transfer of all or substantially all of the other applicable procedural rules of, the state or federal
assigning party's assets, or (b) then non-transferring Party courts in Delaware.
consents to the transfer. In the event of such a transfer,the 17. Severability. If any provision of this Agreement is held to
transferring Party agrees to secure consent from the be illegal, invalid or unenforceable under any present or
transferee that it will assume and perform all obligations of future law, and if the rights or obligations of either Party
the transferring Party under this Agreement. Supplier or under this Agreement will not be materially and adversely
Company shall give the other written notice of any anticipated affected thereby such provision shall be fully severable and
assignment of the Agreement as soon as administratively the remaining provisions of this Agreement shall remain in
practicable after such information may first be made full force and effect to the fullest extent permitted by
public. applicable law, each Party hereby waives any provision of
14. Notices. All notices or other communications that are law that would render any provision prohibited or
required or permitted hereunder shall be in writing and unenforceable in any respect.
delivered personally, sent by facsimile (and such facsimile 18. Waiver of Jury Trial. CUSTOMER AGREES TO WAIVE ANY
must be promptly-confirmed by personal delivery, registered RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION
or certified mail or overnight courier as provided herein),sent OF THE DISPUTE OR CLAIM, WHETHER SOUNDING IN
by nationally-recognized overnight courier or sent by CONTRACT, TORT OR OTHERWISE, BETWEEN ANY OF THE
registered or certified mail, postage prepaid, return receipt PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES ARISING
requested,to the addresses first specified hereinabove, or to OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
such other address as the Party to whom notice is to be TO THIS AGREEMENT.
given may have furnished to the other Party in writing in 19.Miscellaneous. Both Parties shall comply with all laws,
accordance herewith,to the attention of the Chief Executive rules, and regulations applicable to this Agreement. All
Officer. In addition, a copy of any notice to Company must purchases under this Agreement are for Customer's
be sent to General Counsel, Bound Tree Medical, LLC, 5000 "own use" as such term is defined in judicial or legislative
Tuttle Crossing Blvd., Dublin, OH 43016 (such copy shall not interpretation. This Agreement is the entire agreement
constitute legal notice). between the parties with regard to the subject matter of this
15. Headings. The headings of this Agreement are for Agreement. No amendment of the terms of this Agreement
convenience only and shall not affect the meaning of the will be binding on either party unless reduced to writing and
terms of this Agreement. signed by an authorized employee of the party to be bound.
16. Governing Law/Venue. This Agreement shall be governed by 20. Counterparts. This Agreement may be executed in two or
and construed in accordance with the laws of the State of more counterparts, each of which shall be deemed an
Delaware, excluding any conflicts or choice of law rule or original,but all of which together shall constitute one and the
principle that might otherwise refer construction or same instrument.
interpretation of this Agreement to the substantive law of
IN WITNESS WHEREOF,the parties hereto have executed this Company Agreement as of this day of ,2021
Customer Bound Tree Medical,LLC
By: By:
Name: Name: Alisha Enrico
Title: Title: Director of Product Management
*To the extent any item is provided at no charge,it is deemed to be provided at a discount on the full price of such item. These discounts are governed by the
terms of a separate rebate agreement between the Parties. The parties acknowledge that the rebate provided under the terms of this Agreement constitutes a
"discounts or other reductions in price"under section 1128 B(b)(3)(A)of the Social Security Act 42 U.S.C.1320a-7b(b)(3)(A). Accordingly,Customer shall disclose
the discount to any state or federal program that provides cost or charge-based reimbursement to the extent required by law.
Page 2 of 2
V20180207
CITY:
CITY OF OCOEE,FLORIDA
By:
Rusty Johnson, Mayor
ATTEST:
Melanie Sibbitt, City Clerk
(SEAL)
APPROVED BY THE CITY OF OCOEE
COMMISSION IN A MEETING HELD ON
, 20
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this day of
, 20_.
SHUFFIELD, LOWMAN &WILSON, P.A.
By:
City Attorney
iiii,c,, Bound
Exhibit A*
Customer Name: City of Ocoee
BTM Customer Number: 105944
BTM Account Manager: Shawn Murphy
Number of Inventory Management Licenses: 15
Rebate Period: 3 Years
Bound Tree Pricing Summary Year 1 Year 2 Year 3 TOTAL
Inventory Management Licenses $5,400 $5,400 $5,400 $16,200
Narcotics Safe Single $3,000 $3,000 $3,000 $9,000
Total Fees Before Rebate $8,400 $8,400 $8,400 $25,200
Bound Tree Discount Pricing Summary Year 1 Year 2 Year 3 TOTAL
Rebate Percentage for Licenses 100% 100% 100%
Inventory Management Licenses $0 $0 $0 $0
Narcotics Safe Single $0 $0 $0 $0
Total Fees After Rebate $0 $0 $0 $0
Rebate Calculation Year 1 Year 2 Year 3 TOTAL
Rebate Percentage 100% 100% 100% SAVINGS
Minimum Purchase Commitment for Rebate $129,000 $129,000 $129,000
Rebate Amount $8,400 $8,400 $8,400 $25,200
*To the extent any item is provided at no charge,it is deemed to be provided at a discount on the full price of
such item. These discounts are governed by the terms of a separate rebate agreement between the Parties. The
parties acknowledge that the rebate provided under the terms of this Agreement constitutes a "discounts or
other reductions in price"under section 1128 B(b)(3)(A)of the Social Security Act 42 U.S.C. 1320a-7b(b)(3)(A).
Accordingly,Customer shall disclose the discount to any state or federal program that provides cost or charge-
based reimbursement to the extent required by law.
BOurild Tree Customer Rebate Agreement
Customer Company
Name: City of Ocoee Bound Tree Medical, LLC
Address: 563 South Bluford Ave 5000 Tuttle Crossing Blvd.
Ocoee, FL 34761 Dublin,OH 43016
Attention: Corey Bowles Attention: Alisha Enrico
Email: cbowles@ocoee.org E-mail:Alisha.Enrico@sarnova.com
This Rebate Agreement(the"Agreement")is hereby entered this day 9. Force Majeure. In the event that either Party is prevented from
of _ ,2021(the"Effective Date")by and between Customer performing or is unable to perform any of its obligations under this
and Company(referred to herein as the"Parties" or"Party"). Agreement(other than payment of amounts due hereunder)due to
1. Scope. The terms and conditions below represent the terms and any Act of God,fire,casualty,flood,war,strike,lockout,epidemic,
conditions under which Company will pay a rebate to Customer.The destruction of facilities, riot, insurrection, or any other cause
terms and conditions of any supply or similar contract executed, beyond the reasonable control of the Party invoking this Section,
between the Parties shall apply to and govern this Agreement,to such party's performance shall be excused and the time for the
the extent the terms of that agreement do not conflict with the performance shall be extended for the period of the delay or
terms set forth herein. This Agreement shall include Exhibit A inability to perform due to such occurrences.
hereto,which is incorporated herein by reference. 10. Termination. Each Party reserves the right to terminate the
2. Eligibility for Rebate. If the volume of products purchased by Agreementif:(a)theotherPartyceasestofunctionasagoingconcern
Customer from Company during the period of time set forth in in the normal course of business; (b) the other Party commits or
Exhibit A (the "Rebate Period")satisfies or exceeds the minimum suffers any act of bankruptcy or insolvency; (c) upon notice of
purchase targets spedfied in Exhibit A, Customer shall be eligible for termination after notice of a material breach has been given and such
a rebate in the amount specified in Exhibit A. breach is not cured within thirty (30) days following the notice of
breach. Company may terminate this agreement at any time upon
3. Payment of Rebate. The rebate is payable(as soon as practicable written notice to the Customer.
after the close of the Rebate Period)by credit memo upon calculation
and approval of the rebate by Company. 11. Assignment. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the
4. Compliance with Safe Harbor Requirements.The Parties Parties hereto and their respective successors and assigns;
acknowledge that the rebate provided under the terms of this provided that no Assignment, sale or other assignment of this
Agreement constitutes a "discounts or other reductions in price" Agreement can occur unless either(a)the transfer occurs by way
under section 1128 B(b)(3)(A) of the Soda! Security Act 42 U.S.C. of merger, reorganization, consolidation, amalgamation, or as
1320a-7b(b)(3)(A).Accordingly,Customer shall disclose the discount part of a transfer of all or substantially all of the assigning party's
to any state or federal program that provides cost or charge-based assets,or(b)then non-transferring Party consents to the transfer.
reimbursement to the extent required by law. In the event of such a transfer,the transferring Party agrees to
5. Term. This Agreement shall commence on the Effective Date and secure consent from the transferee that it will assume and
continue for a period of three years unless otherwise terminated perform all obligations of the transferring Party under this
in accordance with the provisions set forth herein. Agreement. Supplier or Company shall give the other written
6. Confidentiality. Neither Party may disclose the terms and notice of any anticipated assignment of the Agreement as soon as
conditions of this Agreement to a third Party without the prior administratively practicable after such information may first be
written consent of the other, except as required by law or as made public.
necessary to perform its obligations under this Agreement. 12. Governing Law.This Agreement shall be governed by and
Notwithstanding the foregoing,Company may use certain Customer construed in accordance with the laws of the State of Delaware,
information as input data in a database where Customer's identity excluding any conflicts or choice of law rule or principle that might
shall be kept anonymous. otherwise refer construction or interpretation of this Agreement to
7. Warranties.THERE ARE NO OTHER EXPRESSED OR IMPLIED the substantive law of another jurisdiction.Each party irrevocably
WARRANTIES,INCLUDING ANY WARRANTY OF agrees that any legal action,suit or proceeding brought by it in any
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE way arising out of this Agreement must be brought solely and
REGARDING PRODUCTS PURCHASED FROM COMPANY AND/OR THE exclusively in,and will be subject to the service of process and other
REBATE. applicable procedural rules of, the state or federal courts in
Delaware.
8. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR 13. Waiver of Jury Trial. CUSTOMER AGREES TO WAIVE ANY RIGHT TO
PUNITIVE,SPECIAL,PROXIMATE,INCIDENTAL,CONSEQUENTIAL,OR HAVE A JURY PARTICIPATE IN THE RESOLUTION OF THE DISPUTE OR
EXEMPLARY DAMAGES. CLAIM,WHETHER SOUNDING IN CONTRACT,TORT OR OTHERWISE,
Page 1of2
V20200327
BETWEEN ANY OF THE PARTIES OR ANY OF THEIR RESPECTIVE
AFFILIATES ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THIS AGREEMENT.
14. Miscellaneous. Both Parties shall comply with all laws,rules,and
regulations applicable to this Agreement. All purchases under this
Agreement are for Customer's"own use"as such term is defined
in judicial or legislative interpretation. This Agreement is the
•
entire agreement between the parties with regard to the subject
matter of this Agreement. No amendment of the terms of this
Agreement will be binding on either party unless reduced to
writing and signed by an authorized employee of the party to be
bound.
15. Counterparts. Agreement may be executed in two or more
counterparts, each of which shall be deemed an original,but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of this day of ,2021.
Customer
By:
Name:
Title:
Bound Tree Medical,LLC
By:
Alisha Enrico,Director of Product Management
Page 2 of 2
V20200327
,
hi,
Bound ree
Exhibit A*
Customer Name: City of Ocoee
BTM Customer Number: 105944
BTM Account Manager: Shawn Murphy
Number of Inventory Management Licenses: 15
Rebate Period: 3 Years
Bound Tree Pricing Summary Year 1 Year 2 Year 3 TOTAL
Inventory Management Licenses $5,400 $5,400 $5,400 $16,200
Narcotics Safe Single $3,000 $3,000 $3,000 $9,000
Total Fees Before Rebate $8,400 $8,400 $8,400 $25,200
Bound Tree Discount Pricing Summary Year 1 Year 2 Year 3 TOTAL
Rebate Percentage for Licenses 100% 100% 100%
Inventory Management Licenses $0 $0 $0 $0
Narcotics Safe Single $0 $0 $0 $0
Total Fees After Rebate $0 $0 $0 $0
Rebate Calculation Year 1 Year 2 Year 3 TOTAL
Rebate Percentage 100% 100% 100%
Minimum Purchase Commitment for Rebate $129,000 $129,000 $129,000 SAVINGS
Rebate Amount $8,400 $8,400 $8,400 $25,200
*To the extent any item is provided at no charge,it is deemed to be provided at a discount on the full price of
such item. These discounts are governed by the terms of a separate rebate agreement between the Parties. The
parties acknowledge that the rebate provided under the terms of this Agreement constitutes a "discounts or
other reductions in price"under section 1128 B(b)(3)(A)of the Social Security Act 42 U.S.C. 1320a-7b(b)(3)(A).
Accordingly,Customer shall disclose the discount to any state or federal program that provides cost or charge-
based reimbursement to the extent required by law.
4,4 Bound Tree
UCAPIT PURCHASE AND REBATE PROGRAM AGREEMENT
Customer Company
Name: City of Ocoee Bound Tree Medical, LLC
Address:563 South Bluford Ave Address: 5000 Tuttle Crossing Blvd.
Ocoee, FL 34761 Dublin, OH 43016
Attention:Corey Bowles Telephone: 614.760.5000
• E-mail: cbowles@ocoee.org
This UCAPIT Committed Use Program and Product additional term(s). For purposes of this Agreement,
Rebate Agreement(the "Agreement") is hereby entered "Initial Term" and "Renewal Term" shall be referred to
this day of , 2021 (the "Effective Date") as "Term".
by and between Company and Customer (referred to 3. Product Orders and Quantity. Customer may
herein as the "Parties" or"Party").
submit a purchase order to Company for each order of
1. Scope. Subject to the terms and conditions set Products hereunder,specifying the quantity and type of
forth herein, Company shall make available for purchase Product it is ordering. Such orders may be submitted
certain medical products as it generally makes available online, by contacting Company's customer service
to its customers ("Products") hereto to Customer. department, or by submitting a purchase order. Other
Company may add or delete Products on Exhibit A upon preprinted terms and conditions on a purchase order
written notice to Customer. Company shall not be submitted by Customer shall not be binding unless
obligated to sell any quantity of the Product(s) beyond agreed to in writing by Company. Customer represents
the amount, if any, which in Company's sole judgment is that all purchases under this Agreement are for
available for such purposes at the date proposed Customer's "own use" and will not be sold or
shipment of such Product(s). Additionally, subject to the distributed to a third-party.
terms and conditions set forth herein, Company shall
rent to Customer the UCAPIT inventory management 4. Pricing, Invoices, and Payment Terms for
machines set forth in Exhibit B (the "UCAPIT Machines") Products. Company reserves the right to increase the
and the related software. pricing on Products once a year upon written
notification to Customer. Notwithstanding the
2. Term. The term of this Agreement shall become foregoing, Company may increase prices on Products at
effective as of the Effective Date and shall remain in full any time upon written notification to Customer due to
force for three (3) years after the Effective Date ("Initial increase in pricing from Company's suppliers and/or
Term") unless otherwise terminated in accordance with manufacturers. Customer shall be responsible for the
the provisions provided for herein. This Agreement shall cost of all sales taxes that Company is required by law
automatically renew for successive terms of one (1) year to collect from Customer. Payments for each order
("Renewal Term") after the Initial Term unless a party, shall be made in U.S. dollars net 30 days from the date
no later than ninety (90) days' prior to the expiration of of invoice and shall be made via check, money order,
the Initial Term or a Renewal Term, gives notice to the wire transfer or ACH. Credit card payments will not be
other party of its intent not renew the Agreement for an permitted or accepted. If Company has reason to
Page 1of7
believe that Customer has unsatisfactory financial limitation, packaging, carrier costs, and additional cost
responsibility, Company may require cash in advance or for expedited shipments. Customer shall report any
other payment terms, suspend shipment, or cancel this nonconforming orders to Company within ten (10) days
Agreement. of delivery. If notice of non-conformity is not received,
the order will be deemed accepted by Customer on the
If Customer is late in making payment, Company may, 10th day following delivery. Company shall have thirty
without affecting its other rights: (a) suspend delivery or (30) days to cure any nonconformity reported by
cancel the Agreement; (b) reject future orders; and/or Customer. Upon such cure, Products shall be deemed
(c) charge a late-payment charge, from the due date to be accepted by Customer.
until paid, at the rate of 1.5% per month, or, if less, the
maximum amount allowed by law, which Customer must 8. GPO Agreements. In the event Customer is a
pay upon Company's demand. member of group purchasing organization ("GPO") to
which Company has a contract with relating to the
5. Rebates Program. The terms and conditions of supply of Products listed in Exhibit A, to the extent the
any rebate program offered by Company shall be set terms of such GPO contract conflict with the terms of
forth in Exhibit A. this Agreement, the terms of the GPO contract shall
6. Incentives. Customer acknowledges that any control.
incentive, discount, rebate, or reward offered under this 9 Permissible Use of UCAPIT Machines. The
Agreement constitutes a discount or reduction in price UCAPIT Machines and software related to this
subject to Section 1128B(b)(3)(A) of the Social Security Agreement are intended only for Customer's own use
Act 42 U.S.C. 1320a-7b(b)(3)(a). Customer agrees that it for the storage and dispensing of Products purchased by
shall disclose any such discounts or reductions in price
Customer herein, and tracking the usage of such
under any state or federal program that provides cost or Products.
charge-based reimbursement to the Customer for the
Products covered by this Agreement. If and to the extent 10. UCAPIT Software. Customer acknowledges and
any Product discounts, rebates or other purchasing agrees that UCAPIT relies on software for the usage of
incentives are earned by or granted to Customer and UCAPIT Machines. Customer shall enter into such
paid by Company (or, to the extent Customer is a agreements and licenses as may be required for the use
member of a retail buying group with which Company of such software, and agrees to abide by any applicable
has a relationship, as a part of such relationship), then terms and conditions and licenses required by UCAPIT
applicable provisions of the Medicare/Medicaid and for such software usage. UCAPIT or other provider of
state health care fraud and abuse/anti-kickback Laws such software retains all ownership and intellectual
(collectively, "fraud and abuse laws") may require property rights in and to that content, and Customer's
disclosure of the applicable price reduction on right to use such software are subject to, and governed
Customer's claims or cost reports for reimbursement by, the terms applicable to such content as specified by
from governmental or other third party health care UCAPIT or applicable third party owner, author, or
programs or provider plans. The parties hereto shall provider.
comply with all applicable provisions of the fraud and
abuse laws. Company shall provide the value of such 11. UCAPIT Fee Payment. The annual fee payment
discounts to Customer. for the use of the UCAPIT Machines shall be as specified
on Exhibit B. Such fees shall be invoiced annually by
7. Shipping and Acceptance of Deliveries. All Company.
Products shall be shipped FOB Origin (freight prepaid),
with Customer being responsible for freight and all other 12. Set Up and Training. The delivery and set
shipment and delivery costs, including, without up of the UCAPIT Machines shall be performed by
UCAPIT. Customer agrees to work with UCAPIT to
Page 2 of 7
coordinate the set up of the UCAPIT Machine(s) and any warranty limitation shall also apply to both Products
training. Company shall have no liability for any damages and Equipment, if any, placed under any Rewards/Free
incurred during the set up and training of the UCAPIT Use Program offered under this Agreement. Customer
Machine, nor for the operation of the machine. understands and acknowledges that Company is only a
distributor of the UCAPIT Machines. TheUCAPIT
12. Maintenance. Customer shall be responsible for
Machines carry only those warranties provided by the
the maintenance, repair and service of the UCAPIT manufacturer of the UCAPIT Machines. COMPANY
Machines during the term of this Agreement. MAKES NO EXPRESSED OR IMPLIED WARRANTIES
14. Title of UCAPIT Machines. At all times during REGARDING THE PRODUCTS, UPCAPIT MACHINES,
the term of this Agreement, Company is the owner of RELATED SOFTWARE OR SOFTWARE ACCESSORIES,
the UCAPIT Machines and shall retain title to such INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
UCAPIT Machines. Customer acknowledges and agrees MERCHANTABILITY OR FITNESS FOR A PARTICULAR
that Customer holds the UCAPIT Machines as a bailment PURPOSE. COMPANY'S SOLE OBLIGATION AND
and that neither Customer nor any creditor of Customer CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF ANY
shall have any right,security interest or property interest SUCH WARRANTY SHALL BE, AT COMPANY'S OPTION,
in the UCAPIT Machines other than as bailee. Customer TO ASSIST CUSTOMER IN OBTAINING A REPAIR OR
shall not (i) use the UCAPIT Machines for any purpose REPLACEMENT OF THE PRODUCT BY THE
other than the purpose set forth herein, (ii) represent MANUFACTURER.
itself to any third party as the owner of the UCAPIT 17. Limitation of Liability. COMPANY SHALL NOT
Machines, (iii) grant any security interest, lien or BE LIABLE FOR LOST PROFITS, INDIRECT, INCIDENTAL,
encumbrance in the UCAPIT Machines or (iv) move, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL
remove or transfer the UCAPIT Machines to any location DAMAGES.
other than set forth in Exhibit B. Customer will maintain
liability insurance, property damage and casualty 18. Force Majeure. In the event that either party is
insurance and such other types of insurance on the prevented from performing or is unable to perform any
UCAPIT Machines in amounts and against risks in form of its obligations, other than making payments, under
and substance acceptable to Company. this Agreement due to any Act of God, fire, casualty,
flood, war, strike, lockout, epidemic, destruction of
15. Return of UCAPIT Machines. The UCAPIT facilities, riot, insurrection, or any other cause beyond
Machines placed with Customer pursuant to this
the reasonable control of the party invoking this
Agreement shall immediately be returned to Company in Section, such party's performance shall be excused and
the event this Agreement expires or is terminated for
the time for the performance shall be extended for the
any reason. Customer shall be responsible for all period of the delay or inability to perform due to such
shipping costs associated with the return of the UCAPIT
occurrences.
Machines as well as the risk of loss of such UCAPIT
Machine until it has been delivered to the location 19. Confidentiality. Customer may not disclose the
designated by Company. In the event the UCAPIT terms and conditions of this Agreement to a third party
Machines are not returned in accordance with this without the prior written consent of Company, except
Section, Customer shall be required to pay Company the as required by law. Neither party will make any press
fair market value of the UCAPIT Machines as will be release nor other public announcement regarding this
determined in the sole discretion of Company. Agreement without the other party's prior written
consent except as required under applicable law or by
16. Warranties. Products distributed by
any governmental agency.
Company and the UCAPIT machines carry only those
warranties provided by their manufacturers. This
Page 3 of 7
20. Compliance with Law. Both parties shall comply change its address, facsimile number or other contact
with all laws, rules, and regulations applicable to this information required for notices by sending a change of
Agreement, including but not limited to all federal, state address notice or other contact information using this
and local laws respecting discrimination in employment notice procedure.
and non-segregation of facilities including, but not
limited to, requirements set out at 41 CFR 60—1.4. The 23. Headings. The headings of this Agreement are
parties shall abide by the requirements of 41 CFR 60- for convenience only and shall not affect the meaning of
300.5(a). This regulation prohibits discrimination against the terms of this Agreement.
qualified veterans, and requires affirmative action by 24. Assignment. Customer shall not assign this
covered prime contractors and subcontractors to employ Agreement, nor any rights, interests or obligation
and advance in employment qualified protected hereunder without the prior written consent of
veterans. The parties shall abide by the requirements of Company, which consent will not be unreasonably
41 CFR 60-741.5(a). This regulation prohibits withheld. Company may assign this Agreement, or any
discrimination against qualified individuals on the basis of its rights, interests or obligations hereunder, in whole
of disability, and requires affirmative action by covered or in part,without Customer's consent (i)to any existing
prime contractors and subcontractors to employ and or future affiliate, subsidiary and/or parent company or
advance in employment qualified individuals with (ii) in the case of a merger, acquisition, divestiture,
disabilities. consolidation or corporate reorganization (whether or
21. Termination. A party may terminate this
not Company is the surviving entity). This Agreement
Agreement at any time if the other party: (a) ceases to
and the rights and obligations hereunder shall be
function as a going concern in the normal course of
binding upon and inure to the benefit of the parties
business; (b) files for bankruptcy; or (c) becomes or is
hereto and their respective successors and assigns.
declared as insolvent. In the event a party hereto 25. Relationship of Parties. Company and Customer
materially defaults in the performance of any of its will at all times be independent contractors. Neither
duties or obligations hereunder, which default shall not party will have any right, power or authority to enter
be substantially cured within thirty (30) days after notice into any agreement for or on behalf of, or to assume or
is given to the defaulting party specifying the default, incur any obligation or liabilities, express or implied, on
then the party not in default may, by giving notice behalf of or in the name of, the other party. This
thereof to the defaulting party, terminate this Agreement will not be interpreted or construed to
Agreement for cause. create an association, joint venture or partnership
22. Notices. All notices required to be provided between the parties or to impose any partnership
hereunder must be in writing and will be deemed to obligation or liability upon either party.
have been duly given only if delivered personally, by 26. Amendment. No amendment, modification or
guaranteed overnight delivery service or facsimile to the change of this Agreement will be valid unless in writing
parties at the addresses or facsimile numbers set forth and signed by an authorized representative of the party
above. All such notices (i) if delivered personally or by to be bound.
overnight delivery service to the address as provided in
this Section, shall be deemed given upon delivery, or (ii) 27. Severability. If any provision of this Agreement
if delivered by facsimile transmission to the facsimile conflicts with the law under which this Agreement is to
number as provided in this Section, shall be deemed be construed or if any provision of this Agreement is
given upon receipt providing a copy of such notice is also held invalid or unenforceable by a court of competent
immediately delivered personally or by overnight jurisdiction, that provision will be deemed to be
delivery service. Any party, from time to time, may restated to reflect as nearly as possible the original
intentions of the parties in accordance with applicable
Page 4 of 7
law. If any such provision cannot be amended to reflect 32. Counterparts. This Agreement and each Exhibit
the intent of the parties, such provision shall thereby be attached hereto, may be executed in two or more
deemed severed from the Agreement. The remaining counterparts, each of which shall be deemed an
provisions of this Agreement will not be affected original, but all of which together shall constitute one
thereby, and each of those provisions will be valid and and the same instrument.
enforceable to the full extent permitted by law.
IN WITNESS WHEREOF, the parties hereto caused this
28. Waiver. The failure of either party to enforce Agreement to be executed on its behalf by its duly
strict performance by the other party of any provision of authorized representative as set forth below.
this. Agreement or to exercise any right under this
Agreement will not be construed as a waiver to any •
extent of that party's right to assert or rely upon any Customer:
provision of this Agreement or right in that or any other
instance. A delay or omission by Customer or Company By:
to exercise any right or power under this Agreement will Name:
not be construed to be a waiver of that right or power.
Waiving one breach will not be construed to waive any Title:
succeeding breach. All waivers must be in writing and Date:
signed by the party waiving rights.
29. Governing Law/Venue. This Agreement will be
governed by and construed in accordance with the Bound Tree Medical, LLC
applicable laws of Delaware, without giving effect to the
principles of that State relating to conflicts of laws. Each By.
party irrevocably agrees that any legal action, suit or Name:
proceeding brought by it in any way arising out of this
Agreement must be brought solely and exclusively in,
Title:
and will be subject to the service of process and other Date:
applicable procedural rules of,the state or federal courts
in Delaware.
30. Waiver of Jury Trial. CUSTOMER AGREES TO
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN THE
RESOLUTION OF THE DISPUTE OR CLAIM, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE,
BETWEEN ANY OF THE PARTIES OR ANY OF THEIR
RESPECTIVE AFFILIATES ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THIS
AGREEMENT.
31. Entire Agreement. This Agreement constitutes
the entire agreement of the parties, superseding all prior
agreements and understandings as to the subject matter
hereof, notwithstanding any oral representations or
statements to the contrary heretofore made.
Page 5 of 7
CITY:
CITY OF OCOEE,FLORIDA
By:
Rusty Johnson,Mayor
ATTEST:
Melanie Sibbitt, City Clerk
(SEAL)
APPROVED BY THE CITY OF OCOEE
COMMISSION IN A MEETING HELD ON
, 20
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this day of
, 20 .
SHUFFIELD, LOWMAN&WILSON,P.A.
By:
City Attorney
Exhibit A
REBATE PROGRAM
1. Eligibility for Rebate/Cap on Rebate.
If Customer's purchases of Products from Company during each contract year (Rebate period)
satisfies or exceeds the minimum purchase targets (not including shipping costs,
administrative fees, sales tax, discounts, credits, and/or returns) specified in the table below,
and Customer timely pays fees, Customer shall be eligible for a rebate in the amount specified
below in accordance with the terms of this Agreement. Notwithstanding the foregoing, the
maximum amount of rebate Customer is entitled to receive per year is$2,900.
2. Payment of Rebates.
The rebate is payable within 45 days after the close of each contract term by credit memo.
The credit memo must be used by the Customer within sixty (60) days of issue date. Prior to
payment of any rebate, Company may use such rebate amount to set off any amounts owed to
Company by Customer.
3. Amount of Rebates.
Year 1 Year 2 Year 3
Total Available BTM Purchases $129,000 $129,000 $129,000
Rebate Percentages 3% 3% 3%
$2,900* $2,900* $2,900*
* $2,900 is the maximum amount of rebate Customer is entitled to each year.
4. Additional Terms and Conditions.
a. Applicable tax, if any, on rebated amounts is the sole responsibility of Customer.
b. Void where prohibited or restricted by law, and Customer assumes the responsibility for
assuring the legality in their location and organization.
c. All rebate claims are subject to review and approval by Company in its discretion.
d. No rebates will be paid on Products for which Customer is not the actual end-user or
with respect to any Product(s)for which there has been a payment default.
e. Invoice dates must be during the Term in order to claim the rebate.
f. By participating in this rebate program,Customer agrees to abide by and be bound by
these Terms and Conditions.
g. Company reserves the right to reject orders with no liability to Customer under the
rebate program.
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Exhibit B
UCAPIT FEE PAYMENTS
Leased Items
Annual
Item Description BTM Item Quantity Fee
CAP 12DL,12 Door Locker Extension for Connection to CAP 5 or CAP 3,
BLACK 4310-12412 1
Software Service per CAP 5 or CAP 3 for 12 mos., PAID IN FULL covers
Service,Training,Support(One license per year for three years) 4310-12121 3
$2,900
Fee Payment
At the start of each contract year, Bound Tree Medical will issue the customer an invoice for the annual
fee defined above. Payment terms for the invoice will be Net 365.
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