UCSD AGREEMENT # 015/SD/1210 SIGMA ALDRICH INC, CHEMICALS AND REAGENTS THIS UCSD AGREEMENT ( Agreement ) is made and entered into this 1 st day of January, 2010 by and between The Regents of the University of California on behalf of the San Diego campus ( UCSD ), and Sigma Aldrich ( Seller ) with its principal place of business at 3050 Spruce Street, Saint Louis, MO. 63103. The term of this Agreement, unless terminated as provided herein, shall be effective for a period of one (1) year, January 1, 2010 through December 31, 2010. UCSD may renew or extend the Agreement for up to three (3) additional one-year periods at the same terms and conditions upon mutual agreement of both UCSD and Sigma Aldrich. Pricing of any such extensions shall be as addressed in section 7.1 as outlined below. 1. DEFINITIONS As used in this Agreement and its attachments and exhibits which become a part of it, the following terms have the following meanings: 1.1 Business Day shall mean Monday through Friday, between 8:00am - 5:00pm, excluding UCSD and Seller observed holidays. 1.2 Account Manager means the Seller employee, satisfactory to UCSD, whom Seller designates to UCSD as the person with overall responsibility at Seller managing the UCSD/Seller relationship under this Agreement. Seller s Account Management team is included as an attachment to this Agreement. This team includes Seller s representatives responsible for managing the entire relationship between UCSD and Seller and representatives responsible for managing a specific UCSD campus/location. Seller will use best efforts to keep UCSD informed of any changes to its Account Management Team. 1.3 Supplies/Equipment means supplies and/or equipment marketed or sold by Seller, whether or not manufactured by Seller or bearing a Seller trademark. 1.4 Delivery shall mean delivery by Seller directly to the designated UCSD delivery points as requested by UCSD Departments ordering Supplies/Equipment. The delivery points will be determined by UCSD authorized personnel. 1.5 UC and System are used interchangeably to mean the Regents of the University of California. 1.6 University and UCSD are used interchangeably and mean the University of California, San Diego. 1
2. SCOPE AND DESCRIPTION OF PROGRAM 2.1 Purchase and Sale of Supplies/Equipment During the term of this Agreement, and any extension(s) of such term, Seller agrees to sell to UCSD the Supplies/Equipment as outlined in Attachment 1, subject to the terms and conditions set forth in this Agreement. 2.2 Purchase and sale of Supplies/Equipment to UCSD Core Bio Services During the term of this Agreement, and any extension(s) of such term, Seller agrees to sell Supplies/Equipment, as identified by mutual agreement, to the UCSD Core Bio Services. Pricing and Supplies/Equipment selected shall be negotiated independent of the net pricing and hierarchy discounts outlined in Attachments 1 and 1a. The following sets out the process for determining if a product is available for placement in the Core facility: 1. Any Sigma catalog item that is ordered 36 times or more a year is eligible to be stocked in the UCSD Core facility as long as there is appropriate space and storage conditions for the said product. 2. Items that are ordered 12 times or more a year are eligible to be part of the "virtual" program at the Core facility. 3. UCSD Core Bio will work with Sigma sales representatives to bring in new products or highlight existing ones that may not meet the explicit criteria set forth in the contract but that show market potential. 4. Order history for product additions will be looked at on a quarterly basis and adjustments made. 5. Order history for deletions will be made on a quarterly basis and will be made accordingly. Changes to Core Bio product offering must be documented by sending an amended Core contract item price list to UCSD Strategic Sourcing and UCSD Core Bio Services, on a quarterly basis. 3. COPYRIGHT The parties agree that the services performed under this Agreement are meant to be a work for hire under Federal Copyright Laws. As part of consideration to Seller hereunder, all rights to and any and all copyrights or copyrightable materials produced under the Agreement shall vest in The Regents of the University of California on behalf of the San Diego Campus. 4. E-COMMERCE REQUIREMENTS The terms of the UCSD Marketplace E-Commerce Addendum, Attachment 2, are hereby incorporated by reference. 5. PROGRAM REQUIREMENTS 5.1 Substitutions No substitutions of alternate items for Supplies/Equipment ordered will be permitted except with the express approval from authorized UCSD personnel. Seller shall not substitute and/or interchange a different brand or generic Supplies/Equipment or package 2
size, other than the specific Supplies/Equipment ordered, without authorization from UCSD. 5.2 Minimum Order There shall be no minimum order requirement during the term of this Agreement and any extension(s) of such term. 5.3 Order Packaging and Labeling Seller agrees that each UCSD order will be individually packaged and labeled with the following information: Purchase order number; Supplies/Equipment description, quantity and catalog number of the Supplies/Equipment ordered. Other information, as may be requested by ordering UCSD Department. Packaging slips shall be attached to the outside of the package such that it can be inspected by UCSD at the requesting department and/or receiving dock. 5.4 Environmentally Responsible Packaging Seller agrees to use good faith efforts to utilize environmentally responsible packaging and recycling practices to minimize the adverse effects of packaging on the environment. Seller is requested to assist UCSD in the recycling of packaging materials provided with the provision of Supplies/Equipment. 5.5 Receiving Locations Seller agrees to provide delivery to all of UCSD s current and future authorized personnel delivery points, as requested by UCSD. UCSD intends to centralize delivery points whenever possible. 5.6 Standard Delivery Requirements Seller agrees to deliver all UCSD orders received by 12:00pm PST to the designated UCSD delivery point by 10:00am PST the third business day ARO. Expected delivery dates for hazardous materials or other products that must be shipped per specific DOT regulations will be quoted at time of order. All deliveries shall be FOB Destination, prepaid (ground shipping). Delivery charges and risk of loss will be borne by the Seller. Shipping costs are incorporated into product cost, calculated as 5% of sell price. UCSD Core items are shipped with no freight charges. 5.7 Rush Delivery Requirements Seller agrees to use all commercially available resources to deliver UCSD emergency orders, for vendor s standard offering, within twenty-four (24) hours after receipt of order at no additional charge to UCSD other than actual express shipping charges from carrier. 5.8 Returns Seller agrees to accept returns as follows: Goods may not be returned for credit except with Seller's permission, and then only in strict compliance with Seller's return shipment instructions. Certain items may not be returned for credit. These items include: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; 3
products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Any returned items may be subject to a 20% processing fee. Requests for credit can be transmitted by the ordering UCSD personnel via the established order management system (telephone, fax, paper return form and web-based). If Supplies/Equipment were purchased via UCSD purchasing card, credit must be issued to the same purchasing card. 5.9 Invoicing All invoices must clearly indicate the following information: California sales tax as a separate line item Order or release number and the Agreement number Description, quantity, catalog number and manufacturer number of the item or service ordered Net cost of each item or service Any applicable discount Reference to original order number for all credit invoices issued Purchasing card information (when applicable) Invoices will be submitted directly to the UCSD Disbursements Department, unless the Seller is notified otherwise by amendment to the Agreement and payment(s) may be made through an ACH or CXML process. Invoices will normally be paid Net 30 days upon satisfactory Supplies/Equipment delivery and receipt of a correct invoice unless other terms are mutually agreed upon. 5.10 Catalog It is the intent of UCSD to minimize the use of paper catalogs. If requested, Seller shall provide at no cost to UCSD paper catalogs to be distributed to designated UCSD facilities as needed. Seller shall make best efforts to provide printed catalogs on a minimum of 30% recycled content materials. The customization of Seller catalog, if requested, will be mutually agreed upon between both parties. 5.11 Time is of the essence with respect to the performance of each and every condition, covenant and agreement contained herein. UCSD has the option to accept or reject all Supplies/Equipment delivered after promised delivery time, and, in addition, may hold Seller liable for all direct damages caused by late delivery as determined and documented by UCSD; provided, however, in no event shall the amount of such direct damages exceed UCSD s documented replacement/substitution cost for Supplies/Equipment ordered. Seller will report any delivery delay whatsoever to the ordering location, as well as its cause, within four (4) hours after Seller is able to reasonably determine there will be such a delay; such report will be provided to UCSD by telephone, e-mail, or facsimile. Seller shall keep UCSD fully informed and shall take all reasonable action in eliminating the cause of delay. Despite any previous language to the contrary, if late delivery is due to causes beyond the reasonable control and without the fault or negligence of Seller, including but not limited to: acts of God, war, civil commotion, governmental action, fire, floods, unusually severe weather, explosions, earthquakes, strikes, 4
walkouts, quarantine restrictions, or any other causes beyond reasonable control of Seller, Seller shall not have any late-delivery liability to UCSD. UCSD s failure to take, or delay in taking delivery of Supplies/Equipment ordered, when due to causes beyond the reasonable control and without the fault or negligence of UCSD, including but not limited to: acts of God, war, civil commotion, governmental action, fire, floods, unusually severe weather, explosions, earthquakes, strikes, walkouts, quarantine restrictions, or any other causes beyond reasonable control of UCSD, shall not result in any liability of UCSD to Seller. 5.12 Program Management Seller will provide the necessary staff and resources to support UCSD s program management function, including but not limited to: Marketing program to increase sales activity Coordinating program implementation Providing superior customer service Promoting alternate Supplies/Equipment to reduce costs Provide specialized sales support to UCSD Core Demonstrating new Supplies/Equipment Managing the continuous improvement process Providing on-going agreement monitoring and maintenance Offering Supplies/Equipment cost reduction and process improvement opportunities to UCSD Conducting quarterly account review meetings 5.13 Order Procedures Orders placed shall be binding when they have been received by an authorized representative of Seller. Each such order for any Supplies/Equipment covered by this Agreement and all documents issued as a result thereof shall be governed by this Agreement. Each order shall specify the quantity, description and price and delivery point. All invoices, packing lists, packages, shipping notices, and other written documents shall contain the applicable UCSD purchase order number. If there is an out of stock situation of any ordered inventoried item(s), the out of stock item will be added to the back order file and will be delivered to UCSD when the item is in stock without a further order being submitted. 6. SERVICE STANDARDS 6.1 During the term of this Agreement, and any extension(s) of such term, Seller shall provide the following minimum service standards: Normal delivery - within 2-3 working days ARO Rush delivery - within 1 working day ARO, subject to Mutually agreed order cut-off times Returns - 30 days from shipment Pick up returns - within 5 business days Credited - within 30 business days Request for reports - within 14 business days 5
Order fill rate - 94% Delivery accuracy - 97% Delivery, on-time - 98% Invoice/billing accuracy - 98% (applicable to initial invoice submission) Customer service satisfaction - 95% Quote turn around (catalog items only) within 2 business days 6.2 The minimum service standards set forth above recognize that occasional errors are likely however, Seller further agrees to use best efforts to achieve 100% of service level. Should, however, the service levels fall below the minimum standards and Seller does not take corrective actions within 14 days following UCSD written notification, UCSD reserves the right to terminate the Agreement. 7. PRICING AND APPLICABLE TAXES 7.1 The net prices listed in Attachment 1 (UCSD Campus-wide Net Price List) of the Supplies/Equipment included in this Agreement shall be based upon the discounts recited on Attachment 1a (Sigma-Aldrich Product Initiative and Group Discount Hierarchy). This Discount Hierarchy shall not increase for the first twelve (12) month period of this Agreement. Supplier will make best efforts to include a means to cross-reference each item in the SciQuest price file to the corresponding product initiative and group hierarchy listed in Attachment 1a. 7.2 Additions, deletions and minor net price changes due to list price fluctuations may be made to the Supplies and Equipment listed in Attachment 1 on a quarterly basis per the sample schedule below. UCSD net will be updated as a whole annually and will go into effect October 1 st of each renewal term. 7.2.1 Review SciQuest File Effective Type Sent to UCSD Date upon Approval Quarterly Update 12/14/2009 01/04/2010 Quarterly Update 03/11/2010 04/01/2010 Quarterly Update 06/10/2010 07/01/2010 Annual Update 09/10/2010 10/01/2010 7.3 Additions and deletions to the Supplies and Equipment listed in Attachment 1b, Core-Bio Price List, will be updated quarterly and pricing will renegotiated annually between Seller, Core-Bio and Strategic Sourcing. The initial price list for Core-Bio will be renegotiated prior to the commencement of this agreement date of 01/01/2010. 7.4 In lieu of providing supporting documented evidence of Seller s manufacturer price increases and/or decreases, Sigma will provide an Impact Report to UCSD Strategic Sourcing with each annual update request to demonstrate the overall effect that such increases/decreases will have upon UCSD based on actual past purchases. If Seller s catalog or list price of Supplies/Equipment is reduced, Seller shall guarantee that 6
manufacturer and/or Seller price decreases be passed on to UCSD immediately. 7.5 Seller is advised that there is no mandatory use policy at UCSD, and Seller must compete with other suppliers for UCSD orders. 7.6 Seller agrees to provide UCSD an e-commerce incentive of (2%) per the e-commerce Addendum for all sales placed with Supplier electronically via its Marketplace platform. Incentive checks shall be based on UCSD s purchases made during the previous quarter. 8. REPORTING 8.1 Seller will provide UCSD quarterly summary sales and usage reports. Seller shall make best efforts to provide reports electronically whenever possible. Written reports, if necessary, shall be printed on a minimum of 30% recycled content paper. 8.2 Seller agrees to provide other reports as reasonably requested by UCSD during the term of the Agreement and any extension(s) to such term at no additional cost to UCSD. 9. GENERAL TERMS AND CONDITIONS 9.1 University of California Terms and Conditions University of California Terms and Conditions, Appendix A, Attachment 3; and Special Terms and Conditions for Federal Government Contracts, Supplement 5, Attachment 4, are hereby incorporated and shall govern this Agreement. 9.2 Insurance Requirements If requested by UCSD, Seller shall furnish a certificate of insurance as specified in Appendix A. All requested certificates shall name the Regents of the University of California as an additional insured. 9.3 Supplies/Equipment Certification Seller hereby certifies and warrants that all Supplies/Equipment sold to UCSD under this Agreement: Shall be new and genuine Shall be provided to UCSD in the manufacturer s original packaging unless otherwise requested by UCSD Shall be manufactured and sold or distributed to the Seller for retail sales in the United States Shall be sold to the Seller from legal and reputable channels, which are understood to be the manufacturer or authorized representatives of the manufacturer Shall not be altered or misbranded within the meaning of the Federal and State laws applicable to such Supplies/Equipment Shall not be produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction 7
9.4 Auditing Requirements This Agreement and any orders resulting there from shall be subject to examination and audit by UCSD for a period of three (3) years after final payment. The examination and audit shall be confined to those matters connected with the performance of the Agreement, including, but not limited to, the costs of administering the Agreement. 9.5 Warranties Seller agrees that the Supplies/Equipment furnished under this Agreement shall be covered by the most favorable commercial warranties the Seller gives to any customer for the same or substantially similar Supplies/Equipment in accordance with the terms Article 12 of University of California Terms and Conditions, Appendix A, as attached. 9.6 Termination of Agreement UCSD may terminate this Agreement for convenience at any time, in accordance with the terms of Article 4 of University of California Terms and Conditions, Appendix A, as attached. In the event of such termination, UCSD agrees to provide Seller at least thirty (30) days prior written notice of the effective date of termination and the extent thereof without penalty. Supplier may terminate this agreement for convenience, at any time, upon sixty (60) days prior written notice of the effective date of termination and to the extent thereof without penalty. If any termination of this Agreement takes place, Seller shall extend to UCSD, upon UCSD s request, an additional ninety (90) day period to properly implement a smooth transition. Fees for the services performed during the additional ninety (90) days will be negotiated in good faith between UCSD and Seller. If within fifteen (15) working days of receipt of written notice from UCSD of Seller s breach of any term or condition of the Agreement, Seller shall fail to remedy such breach, then UCSD may at any time, by written notice, terminate the Agreement in whole or in part. 9.7 Marketing References Seller shall not make reference to UCSD, in any literature, promotional material, brochures, or sales presentations without the express written consent of a duly authorized officer of UCSD. 9.8 Amendments Any changes to the Agreement requested by either party shall be effective only if mutually agreed in writing by duly authorized representatives of UCSD and Seller. This Agreement shall not be modified or amended or any right of a party waived except by such written amendment. 9.9 Failure to Enforce Failure by either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as affecting any subsequent breach or the right to require performance with respect thereto or to claim a breach with respect thereto. 9.10 Partial Invalidity Any provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way impair or invalidate any other 8
provisions hereof, and such other provisions shall remain in full force and effect. 9.11 Relationship Seller shall have no power to bind UCSD and shall not, under any circumstances, be considered to be an agent, representative or fiduciary of any or all of the proceeding. Instead, Seller is an independent contractor and neither it nor its employees, agents, contractors or subcontractor are or will be an employee, agent or representative of UCSD during the period it and/or they are performing services under this Agreement. Seller acknowledges its responsibility for the full payment of the wages or other compensation of, as well as any benefits for employees, agents, contractors or subcontractors engaged by it in the performance of this Agreement. This Agreement, together with the above named instruments, constitute the entire agreement between UCSD and Seller with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings, advertisements, publications and understandings. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written, such parties acting by their officers being thereunto duly authorized. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ON BEHALF OF THE SAN DIEGO CAMPUS SIGMA ALDRICH Signature Name, printed or typed Title Signature Name, printed or typed Title (4) Date Date 9
UCSD AGREEMENT # 014/SD/110 ATTACHMENTS UCSD Campus-wide Price List Sigma Discount Hierarchy List (current dated April 2008) Core-Bio Price List (baseline in effect until 02/28/2010) UCSD Marketplace Electronic Commerce Rider University of California Terms and Conditions of Purchase, Appendix A Special Terms and Conditions for Federal Government Contracts, Supplement 5 Attachment 1 Attachment 1a Attachment 1b Attachment 2 Attachment 3 Attachment 4 10