HomeMy WebLinkAboutContract 45567 (2)1. THE CONTRACT.
These terms and conditions (also referred to as this "Agreement") apply to all sales of products and services by QIAGEN to its customers
(each, a "Customer"), unless QIAGEN and Customer have agreed to a separate written contract signed by authorized representatives of both
parties (a "Contract"). To the extent the parties have executed a Contract, and there are any conflicts between these terms and those in the
Contract, then the Contract shall control.
2. ORDERS.
Customer shall place orders for products (all equipment, consumables, kits and supplies) using purchase orders consistent with these terms
and conditions. All orders shall include the minimum following information: shipping and billing address, catalog number, product description,
size, quantity and purchase order number. In the event Customer's purchase order varies from the terms herein, the terms herein shall
control, even if Customer's purchase order states otherwise. All confirmations, invoices and other writings delivered by QIAGEN to Customer
shall be deemed accepted by Customer together with any terms and conditions set forth thereon unless within ten (10) days of the date
thereof Customer gives written notice to QIAGEN of Customer's non -acceptance.
3. PRICING AND ACCEPTANCE.
3.1 All prices are subject to change without prior notice except for work in progress or where otherwise specifically provided in a written
quotation signed by an authorized QIAGEN representative.
3.2 The prices stated herein do not include any sales, use or excise taxes, customs duties, imposts or other assessments of any kind, value-
added or similar taxes, which may arise from the manufacture, processing, sale or shipment of the products or services, and Customer shall
be solely responsible for any and all such taxes, duties or other assessments. If QIAGEN has the legal obligation to collect any such taxes,
duties or other assessments, the appropriate amount shall be added to QIAGEN's invoice to Customer and paid by Customer. If, for whatever
reason, QIAGEN does not collect any such amount from Customer and QIAGEN becomes liable to pay any such taxes, duties or other
assessments or any penalties related thereto, Customer shall promptly pay such amounts directly to the appropriate governmental authority
or, if QIAGEN is required to pay or has paid such amounts, shall pay such amounts to QIAGEN in accordance with Section 4 below.
3.3 All orders from Customer are binding upon Customer and may be accepted by QIAGEN, at QIAGEN's option, either by sending an order
acknowledgement or confirmation, or by delivering the resulting products or services to Customer.
4. TITLE; RISK OF LOSS; SHIPPING,
4.1 All products are shipped FCA QIAGEN's facility, with shipping and handling fees prepaid and added to the invoice amount. Title to and
risk of loss of products shall pass to Customer at the place and time QIAGEN delivers such products to the Customer. QIAGEN may change
freight carriers without notice. If a shipment fails to be delivered as scheduled, QIAGEN shall be responsible for pursuing a claim with the
freight company and Customer shall provide reasonable cooperation with such endeavor.
4.2 Representations as to delivery dates are approximate only, unless QIAGEN has given an expressly binding commitment. Partial delivery
� or performance of products and services under this Agreement shall be permitted unless Customer has expressly stated in writing on the face
M of the QIAGEN Sales Document or on the Customer's purchase order that partial delivery will not be accepted.
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n'1 4.3 QIAGEN shall not be liable for any delay in performance or nonperformance as the result of war, fire, flood, accidents, acts of God,
mterrorism, embargoes, acts of third parties, acts of governmental authority or any agency or commission thereof, breakdown of equipment,
® shortages of material, labor or power, labor strikes, work stoppage or labor unrest, or any other cause beyond QIAGEN's reasonable control.
n If any of the foregoing events occurs, QIAGEN may make deliveries of the products and services proportionate to production and/or postpone
� the shipment or delivery period of the products and services to a reasonable time after the difficulty has ceased, or QIAGEN may, at its option
o upon notice given to Customer within twenty (20) days after the commencement of any such event, declare this Agreement terminated and all
CWT11 rights and liabilities of QIAGEN and Customer, except with respect to products and services previously shipped or performed or in QIAGEN's
inventory, shall cease and terminate. QIAGEN shall have no obligation to buy in the open market any article to be used in QIAGEN's
manufacture or processing when the supplier thereof has defaulted in delivery. r(OFFICIIAL
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Purchase Terms and Conditions � '�',�
City of Fort Worth — Police Dept and QIAGEN
4.4 If this Agreement calls for more than one shipment of products or delivery of services, each shipment and delivery identified by the same
Purchase Order Number shall constitute a single sale under the terms and conditions of this Agreement and Customer agrees to accept each
shipment and delivery and pay each invoice in full when due at the contract prices regardless of controversies relating to other delivered or
non -delivered products or services. If Customer fails to accept or pay for shipment or delivery, or in the event a dispute arises concerning
QIAGEN's performance hereunder, subject to Section 6 herein, then QIAGEN may, without prejudice to any other lawful remedy and without
any liability to Customer, (i) defer further performance hereunder until acceptance or payment by Customer of all previous shipments and
deliveries or until the dispute shall have been resolved, or (ii) terminate this Agreement with respect to any unaccepted or undeliverable
portion, in which case Customer shall be responsible for any expense or loss sustained by QIAGEN in connection with this Agreement.
5. PAYMENT TERMS.
5.1 The full amount of each invoice for products and services hereunder shall be paid net 30 days (terms contingent upon credit worthiness of
Customer) from the date of the invoice unless otherwise stated on the face of the invoice.
5.2 Payment by check or bill of exchange will be effective only after these instruments have cleared and been paid. Any discounts and
expenses shall be borne by Customer.
5.3 QIAGEN reserves the right to assess a late fee equal to one and one-half percent (1.5%) per month or, if lower, the maximum amount
permitted by applicable law, on all amounts not paid when due, calculated on a daily basis beginning with the 1st day following the invoice due
date. Any check or remittance received from or for the account of Customer may be accepted and applied by QIAGEN against any
indebtedness owing by Customer, without prejudice to, or the discharge of, the remainder of any such indebtedness regardless of any
condition, provision, statement, legend or notation appearing on, referring to or accompanying any check or remittance.
5.4 At any time, when in QIAGEN's opinion the financial condition of Customer so warrants, or if Customer fails to make payment when due or
otherwise defaults hereunder, QIAGEN may change any terms of payment, suspend any credit previously extended to Customer, require
partial or full payment in advance and delay shipment until such terms are met, and pursue any other remedies available at law. In such
event, if Customer refuses to accept such changes, any outstanding order may be cancelled without any liability to QIAGEN. In the event of
bankruptcy or insolvency of Customer or in the event any proceeding is brought by or against Customer under any bankruptcy or insolvency
laws or their equivalent, QIAGEN may cancel any order then outstanding without liability to Customer.
6. LIMITED WARRANTY.
6.1 Product and Equipment Warranties
(a) Product Warranty. QIAGEN warrants that, at the time of shipment, the products sold by it are free from defects in materials and
workmanship and conform to the Specifications, if any, that accompany the products. QIAGEN agrees to replace any defective or non-
conforming product (provided that such nonconformity was not caused by misuse or negligence of Customer) if Customer provides notice to
QIAGEN within thirty (30) days after receipt. No claim will be honored if Customer fails to notify QIAGEN within the period specified. Such
replacement, or the refund of the invoice price of the products, shall be the sole and exclusive remedy of Customer for any liability of QIAGEN
of any kind, including, but not limited to, liability based upon warranty (expressed or implied, whether contained herein or elsewhere), strict
liability, contract or otherwise. All third party expenses, including any applicable transportation, handling, customs and related costs
associated with the return and/or replacement of such products or Supplies, if determined to be nonconforming, shall be paid by QIAGEN.
(b) Equipment Warranty. QIAGEN warrants that all new instrumentation manufactured by QIAGEN will correspond to the product
specifications and be free from defects in workmanship and materials for a period of twelve (12) months from the original date of shipment.
Repair or replacement of defective parts will be provided to the purchaser during this time period provided the QIAGEN instrumentation is
operated under conditions of normal and proper use, but not for damage caused by the customer. If any part or subassembly proves to be
defective, it will be repaired or replaced at QIAGEN's sole option, subsequent to inspection at the factory, or in the field by an authorized
factory representative, provided that such defect manifested under normal and proper use.
6.2 Customer agrees that QIAGEN's sole liability, and Customer's sole and exclusive remedy, pursuant to any claim of any kind against
QIAGEN, including without limitation any claim in contract, negligence or strict liability, shall be, at QIAGEN's option, (a) re -delivery of any
non -conforming products or reperformance of any non -conforming services or (b) a refund of the price allocable to the non -conforming
products or services.
6.3 Promptly upon receipt of each delivery of products and services hereunder, Customer shall examine such products and deliverables of
such services for any defects, damage or shortage. All claims, including without limitation for nonconforming products or services, shortage or
any other cause whatsoever, shall be deemed waived unless made in writing and received by QIAGEN by (a) 14 days after Customer's
receipt of the products or services, in the case of any nonconformities or deficiencies reasonably ascertainable by visual inspection or routine
testing procedures, (b) 30 days after Customer learns of the facts giving rise to the claim, in the case of any other non -conformities or
deficiencies not reasonably ascertainable by visual inspection or routine testing procedures, or (c) 60 days after Customer's receipt of such
shipment. Customer's failure to give notice of any claim within the applicable time period specified above, shall be deemed an absolute and
unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether
processing or use of the products or services shall have then taken place.
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Purchase Terms and Conditions
City of Fort Worth —Police Dept and QIAGEN
6.4 Returns.
Customer must obtain authorization for all returns of products from a QIAGEN Customer Relations or Technical Services Representative, A
Returned Good Authorization number shall be assigned and must be included in the shipping documentation. Some products may not be
eligible for return due to regulatory or storage requirements.
(a) Returns due to Nonconforming product. If Customer chooses to return nonconforming (i.e., does not conform to Specifications) products
under the product Warranty, QIAGEN will assess the product to verify the nonconformance. If the product is found to be non -conforming,
QIAGEN shall send a replacement within 48 hours for all stocked items. If Customer is asked by QIAGEN to return the nonconforming
product, QIAGEN will pay for the return shipping charges as well.
(b) Returns due to Customer Ordering Error. Products ordered in error are returnable within thirty (30) days after shipment was started by
QIAGEN; provided that the products being returned remain unopened and suitable for resale, as determined by QIAGEN in its sole discretion.
Customer must pay for the return freight. A credit shall be issued for the invoice price of the returned product less (1) a restocking fee of the
greater of 20% of the return value or $25.00 and (2) freight costs incurred by QIAGEN for the shipment to and/or from Customer. Special
orders, non -stocked items, and discontinued reagents may not be returned.
6.5 THE LIMITED WARRANTY IN SECTION 6.1 ABOVE IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND QIAGEN
HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
7. LIMITATION OF LIABILITY AND REMEDY.
7.1 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS WHICH QIAGEN IS CHARGING HEREUNDER DO NOT
INCLUDE ANY CONSIDERATION FOR QIAGEN'S ASSUMPTION OF THE RISK OF CONSEQUENTIAL OR INCIDENTAL DAMAGES
WHICH MAY ARISE IN CONNECTION WITH USE OF THE GOODS OR SERVICES BY CUSTOMER,
7.2 QIAGEN's liability for breach of warranty or for any loss or damage resulting from any other cause whatsoever, including alleged
negligence, shall not exceed the lesser of (i) the cost of correcting any non -conformities in the products or services or (ii) the cost of replacing
the products or reperforming the services. In no event (including unenforceability of the above limitations and independent of any failure of
essential purpose of the limited warranty and remedies provided hereunder) shall QIAGEN Is aggregate liability for damages under this
Agreement exceed the purchase price previously paid by Customer for the non -conforming products or services. The parties acknowledge
that the limitations set forth in this Section 7.2 are integral to the prices charged under this Agreement and that, were QIAGEN to assume any
further liability other than as set forth herein, such prices would of necessity be set substantially higher. Customer expressly agrees that this
limitation of damages and remedies shall constitute the exclusive remedies and measure of damages available to Customer and all other
remedies and measures of damages which might otherwise be available under the law of any jurisdiction are hereby waived by Customer.
7.3 Without limitation to the generality of the foregoing limitation, QIAGEN shall not be liable for any damage or loss caused by the improper
or unapproved use of the products. The products are for research use only and are not to be used for human diagnostic or drug purposes
unless expressly approved for such purposes by the Food and Drug Administration in the U.S. or the appropriate regulatory agency in other
countries. Without limitation to the generality of the foregoing, Customer shall handle and use the results of the products in conformity with (a)
good laboratory practice, (b) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies and (c) any patent
and other proprietary rights of third parties.
7.4 Except as otherwise agreed in writing by QIAGEN's authorized representative, the purchase of products only conveys to Customer the
non -transferable right for Customer only to use the quantity of products and components of products purchased in compliance with the
applicable intended use statement, limited use statement or limited label license. Unless otherwise authorized, no right to resell the products,
or any portion of them, is conveyed.
8. INDEMNIFICATION. Intentionally omitted.
9. GENERAL COMPLIANCE.
Each of the parties represents and warrants to the other party that it will comply with all applicable laws, rules or regulations ("Applicable
Laws"), including, but not limited to, applicable federal, state and local laws, rules, regulations and guidelines relating to the manufacturing,
quality control, packaging, labeling, handling, shipping, importation, exportation and storage of Products, HIPAA, Medicare and Medicaid
billing and referral requirements and the Federal Food, Drug and Cosmetic Act. It is the intention of the parties that this Agreement be
administered in accordance with the federal antikickback statute (Title 42, United States Code, Section 1320a-7b(b)). Accordingly, insofar as
required by such statute or by the discount safe harbor regulations at 42 CFR § 1001.952(h), Customer shall fully and accurately report in
applicable cost reports and provide information upon request to Medicare, Medicaid and other federal health care programs on all discounts
and price reductions under this Agreement.
10. HIPAA COMPLIANCE,
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Purchase Terms and Conditions
City of Fort Worth —Police Dept and QIAGEN
The parties acknowledge that use of the Products and Equipment by Customer may be subject to the requirements of HIPAA and the related
privacy and security regulations, and other current and future laws, rules and regulations regarding collecting, accessing, using, disclosing,
electronically transmitting, securing, and storing protected health information of patients ("PHI"). The parties acknowledge that PHI is not
required for QIAGEN's performance of this Agreement and that QIAGEN is neither a "covered health care provider" nor a business associate
of the Customer. If in the performance of any services that are related to the provision of Products, Supplies and Equipment under this
Agreement, QIAGEN or its employees, representatives, or agents inadvertently or incidentally obtain or gain access to PHI on paper, tape,
diskette, CD or other tangible media, in instruments or computers, electronically displayed, or verbally disclosed, QIAGEN agrees that it shall
not use, disclose, or reproduce, in any manner, any such PHI (including, without limitation, laboratory results and patient demographic
information) and shall promptly report such disclosure to Customer.
11. CONFIDENTIALITY.
Each party shall use Confidential Information (information of a proprietary or sensitive nature that is not readily available through sources in
the public domain) of the other party only for purposes of this Agreement. Otherwise, except as may be required by law neither party shall
use, publish nor disclose, or cause anyone else to use, publish or disclose, any Confidential Information of the other party. The restrictions on
disclosure and use hereunder shall not apply to any information which (a) is or becomes generally available to the public, other than as a
result of disclosure by the party receiving the information pursuant to this Agreement, (b) was made available to other third persons on a non -
confidential basis by the disclosing party prior to the execution of this Agreement, (c) becomes available on a non -confidential basis from a
third person, which third person was not itself under an obligation to maintain the confidentiality of such information, or (d) is required by law,
regulations, including securities and other disclosure law, subpoena or court order to be disclosed. The provisions of this paragraph shall
survive the expiration or other termination of this Agreement regardless of the cause of termination.
12. NON-DISCRIMINATION.
Neither Customer nor QIAGEN shall discriminate in the performance of this Agreement because of race, color, sex, sexual orientation, age,
religion, handicap, marital status, or national origin in violation of any applicable federal, state, or local law or regulation.
13. ENTIRE AGREEMENT.
This Agreement, including any attachments, exhibits or schedules hereto or delivered herewith, represent the entire agreement between the
parties with respect to the subject matter hereof. No amendment or modification of the terms of this Agreement shall be binding on either party
unless in writing and signed on behalf of each party.
14. BINDING EFFECT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
This Agreement shall not be assignable by Customer without QIAGEN's prior written consent; except that Customer may assign this
Agreement, without the prior consent of QIAGEN, to the successor to all or substantially all of the business of Customer as long as the
successor or surviving entity in such transaction agrees to be bound, in writing, by the terms and provisions of this Agreement, and written
notice of such assignment is provided to QIAGEN prior to consummation of the transaction. This Agreement shall be assignable by QIAGEN.
15. WAIVER.
The waiver by a party hereto of any breach of or default under any of the provisions of this Agreement shall not be effective unless in writing
and the failure of a party to enforce any of the provisions of this Agreement or to exercise any right there under shall not be construed as a
waiver of such right.
16. SEVERABILITY.
If any part of this Agreement shall be invalid or unenforceable under applicable law, such part shall be ineffective only to the extent of such
invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. In addition, the part that is ineffective shall be
reformed in a mutually agreeable manner so as to as most closely approximate, to the extent possible, the intent of the parties hereto.
17. SURVIVAL.
The provisions of this Agreement that may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement
(including, without limitation, confidentiality and governing law) shall so survive for the period specified, or if no such period, for the applicable
statute of limitations.
18. FORCE MAJEURE.
The timely performance of either party will be excused, except any obligations to pay any amounts then owed to the other party hereunder,
and shall not constitute a breach or grounds for termination or prejudice of any rights hereunder if the delay of the performance is the result of
a force majeure event; provided that such party shall promptly provide written notice of such delay and the reason therefore to the other party,
shall use its reasonable efforts to limit or resolve the cause of the force majeure, and shall resume performance immediately after the cause of
the delay is removed.
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Purchase Terms and Conditions
City of Port Worth —Police Dept and QIAGEN
19. INDEPENDENT CONTRACTORS.
The parties hereto are independent contractors and nothing in this Agreement will constitute the parties to be partners, nor constitute one
party the agent of the other party, nor constitute the relationship to be a joint venture. Neither party shall have, or shall represent that it has,
the authority or power to act for or to undertake or create any obligation or responsibility, express or implied, on behalf of, or in the name of
the other party.
20. GOVERNING LAW.
This Agreement and any claims, disputes or causes of action relating to or arising out of this Agreement shall be construed in accordance with
and governed by the laws of the State of Texas without giving effect to the conflict of laws principles thereof. All claims under this Agreement
which cannot be amicably settled shall be submitted to the competent courts in Texas. If either party commences an action or proceeding to
determine or enforce its rights hereunder, the prevailing party will be entitled to recover from the losing party all expenses reasonably
incurred, including court costs, reasonable attorneys' fees and costs of suit as determined by the court. In case that such party does not
prevail in all aspects of the submitted claim, such fees and costs shall be allocated between the parties on a pro rata basis commensurate
with the partial success of the claim.
21. TERMINATION FOR DEFAULT.
If either party shall default in a material manner with respect to its performance or obligations or covenants under this Agreement, (including
without limitation, Customer's failure to pay right, upon written notice to the defaulting party and without prejudice to any other rights the non -
defaulting party may have, to terminate this Agreement. In the event of Customer's default, Customer shall owe Qiagen a fee for any order
shortfalls at the time of termination, as set forth in Section 3 above.
22. INSOLVENCY OR BANKRUPTCY.
Either party may, in addition to any other remedies available to it by law or in equity, terminate this Agreement by written notice to the other
party in the event the other party shall become insolvent, make an assignment for the benefit of its creditors, or have any case or proceeding
voluntarily initiated by or commenced against or other action taken by or against it in bankruptcy or seeking reorganization, liquidation,
dissolution of winding -up or any other relief under any bankruptcy, insolvency, reorganization or other similar act or law of any jurisdiction now
or hereafter in effect, and any such event shall have continued for sixty (60) days undismissed, unbonded and undischarged.
QIAGEN, INC.
Signed: MA k: C,(<e 'A\
Name: Adrienne Helgerman
erector
Title:
Customer Contracts & Services
Date:
Contract Authorization
M&C: P-11633
Date Approved: 4/1/2014
ATTEST:. 1 ;
By:
Tf
Mary Kayser
City Secretary
CITY OF FORT
Signed
Name:
W. Daniels
Title: Assistant City Manager
Date: ds 65 /¢
APPR4VAL�I��E
Jeffrey . Halstead
Chief of
tt Police
Date: L - ac)l d
APPROVED AS TO FORM
AND LEGALITY:
Jessica Sangsvang
Assistant City Attorney
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Purchase Terms and Conditions
City of Fort Worth —Police Dept and QIAGEN
'�� �'"l�(kPi 11 [I
M&C Review
Page 1 of 2
Official site of the City of Fort Worth, Texas
FART ��°17R�'i1
COUNCIL ACTION: Approved on 4/1/2014
REFERENCE ** 13P14-0040 DNA
DATE: 4/1/2014 NO : P-11633 LOG NAME: EXTRACTION ROBOT CC
PUBLIC
CODE: P TYPE: CONSENT HEARING: NO
SUBJECT: Authorize Sole Source Purchase Agreement from Qiagen, Inc., in the Amount of
$92,961.66 for a DNA Extraction Robot System, Equipment and Accessories for the
Police Department from Grant Funds (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize a Sole Source Purchase Agreement from Qiagen,
Inc., in the amount of $92,961.66 for a DNA extraction robot system, equipment and accessories for
the Police Department from Grant Funds.
DISCUSSION:
The Fort Worth Police Department Crime Laboratory currently uses manual handling techniques to
extract and purify DNA samples. The purchase of the extraction robot system, including the
equipment and accessories, will permit the laboratory to decrease the turnaround time of performing
extractions for criminal cases, including sexual assaults, and reduce bottlenecks by increasing the
number of samples that can be extracted and processed. The Crime Laboratory will install a robot
extraction platform that will permit an efficient and standardized process for the purification of DNA
samples and can process up to fourteen samples simultaneously in 20 to 30 minutes as opposed to
the several hours it would take utilizing current manual handling techniques.
Qiagen, Inc., is the documented sole source manufacturer and distributor for support services,
equipment and upgrades to the EZ1 Advanced XL Robot.
PRICE ANALYSIS -The City of Fort Worth has no recent history in the purchase of EZ1 Advanced
XL Robots. Staff reviewed the pricing and found it to be fair and reasonable.
M/WBE OFFICE - A waiver of the goal for MBE/SBE subcontracting requirements was requested by
the Purchasing Division and approved by the M/WBE Office, in accordance with the BDE Ordinance;
because the M/WBE Waiver is based on the sole source information provided to the M/WBE Office
by the Purchasing Division Buyer.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operatin
budget, as appropriated, of the Grants Fund.
BQN\14-0040\CC
TO FundlAccount/Centers
FROM Fund/Account/Centers
GR76 541310 035423644010
GR76 539120 035423644010
$47,016.81
$45,944.85
http://apps.cfwnet.org/council�acket/mc_review.asp?ID=19368&councildate=4/1/2014 4/29/2014
4 M&C Review
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Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Susan Alanis (8180)
Aaron Bovos (8517)
Jack Dale (8357)
Cristina Camarillo (8355)
http://apps.cfwnet.org/council�acket/mc review.asp?ID=19368&councildate=4/1/2014
4/29/2014