Vendor Terms

Last Updated: February 2016

These Vendor Standard Terms and Conditions (collectively, the “Vendor Terms”) shall be binding on any and all consultants, independent contractors, freelancers, lead providers, service providers, delegates and other vendors (each, a “Vendor”) and any of its/their employees, personnel and subcontractors (collectively, the “Vendor Personnel”) that render services (collectively, the “Services”) for and/or deliver various deliverables (collectively, the “Deliverables”) to, or on behalf of, Sunspire Health LLC (together with its affiliates, successors and assigns, “Sunspire” and, together with Vendor, the “Parties” and each individually, a “Party”), pursuant to Vendor’s engagement by way of a purchaser order or any other agreement with Sunspire that specifically references these Vendor Terms (collectively, the “Engagement”):

  1. Provision of Services and Deliverables. Vendor and the Vendor Personnel shall perform all of the Services in a professional manner, consistent with generally accepted industry standards for the performance of services of a similar nature. Vendor and the Vendor Personnel shall deliver all of the Deliverables, which shall individually and in the aggregate, (i) comply in all respects with their specifications; (ii) be free from any material defects or errors; and (iii) not infringe or otherwise misappropriate any third party intellectual property rights. If Sunspire notifies Vendor of any breach of the foregoing covenants, Vendor and/or the Vendor Personnel shall re-perform such Services or re-deliver such Deliverables such that they conform to the applicable foregoing covenants. If Vendor is unable to properly re-perform such Services or re-deliver such Deliverables within a reasonable period of time, or if Sunspire reasonably determines that such re-performance or re-delivery is impractical, Vendor shall, if so directed by Sunspire, promptly refund to Sunspire the amounts paid by Sunspire for such Services and/or Deliverables. These rights shall be non-exclusive.
  2. Timing. Regarding Vendor’s performance of the Services and provision of the Deliverables, time is of the essence.
  3. Representations and Warranties. Vendor represents and warrants to Sunspire that Vendor and each of the Vendor Personnel, in rendering the Services and/or the Deliverables (i) has the full legal right and corporate authority to do so; (ii) is competent to do so; and (iii) is in compliance with all applicable federal, state and local laws and regulations.
  4. Gifts, Gratuities, and Favors.  Vendor must avoid any actions that could create a perception that Sunspire, or Sunspire personnel, treated Vendor or any of the Vendor Personnel in a preferential manner as a result of the acceptance of a gift(s), gratuity(s), or favor(s).  For the purposes of these Vendor Terms, “gifts” do not include nominal tokens of appreciation such as holiday gifts. 
  5. Accuracy of Books, Records, and Public Disclosures.  Vendor must record and report all business information accurately, in compliance with the terms of the Engagement, as well as all applicable Federal, State and local laws and regulations, and includes invoices and applicable expenses submitted to Sunspire, pursuant to the Payment section herein. Vendor must also retain records consistent with applicable laws and regulations and any applicable provisions of their contracts or other written documentation of the Engagement. Vendor is required to cooperate with all reasonable requests for information from Federal and State government and regulatory agencies pertaining to the Engagement.  Sunspire retains the right to audit Vendor regarding the Engagement, and Vendor shall fully cooperate in any such audit, inquiry or review. It is essential that the legal rights of Sunspire and its personnel are protected. Any governmental or regulatory inquiry, subpoena, or other legal document directed to Vendor regarding Sunspire or its business, must be communicated immediately in writing to the Chief Compliance Officer.
  6. Employment Practices. Vendor is expected to conduct its employment practices in compliance with all applicable laws and regulations. Additionally, Vendor must respect Sunspire’s commitment to maintaining a work environment where all are treated with honesty, dignity, and respect.  Sunspire values diversity and the cultural contributions of all employees, regardless of their position, sexual orientation, family status, age, race, sex, disability, religion, or national origin. Sunspire respects its employees’ right to work in an environment free from harassment and discrimination, and will not tolerate sexual advances, actions, comments, inappropriate physical contact, or any other conduct that is intimidating or otherwise creates an offensive or hostile work environment. Vendor and Vendor Personnel must comply with this policy at all times. Sunspire maintains a drug-free work place.  Vendor Personnel may not possess, distribute, or use illegal drugs or be under the influence of illegal drugs or alcohol at any time while on Sunspire premises or providing Services and/or Deliverables on behalf of Sunspire.
  7. Intellectual Property Ownership.  Vendor recognizes that all of the Services and Deliverables to be rendered by Vendor pursuant to the Engagement shall be “Work-for-Hire” and that Sunspire perpetually and exclusively owns, and Vendor hereby irrevocably and perpetually assigns and shall cause Vendor Personnel to assign, transfer and convey perpetually to Sunspire, all worldwide rights, title and interest in the Deliverables and intellectual property (including  specifications, reports and designs) provided, created or developed for or on behalf of Sunspire, as well as any modifications, enhancements or derivatives thereof (collectively, the “Sunspire IP”).  Vendor agrees to execute, and shall cause Vendor Personnel to execute, any documents or take any other actions as may reasonably be necessary, or as Sunspire may reasonably request to perfect Sunspire’s perpetual ownership of the Sunspire IP.
  8. License.  To the extent Vendor is granted the right to use any Sunspire IP, such use shall be pursuant to a limited, non-exclusive, non-transferable, revocable license to use by those Vendor Personnel with a need to use such Sunspire IP in connection with providing the Services solely at the locations specified by Sunspire and solely in connection with providing the Services and/or Deliverables to Sunspire.  All other use is strictly prohibited.  All such user rights shall expire and terminate upon the completion of the provision of the Services and/or Deliverables to Sunspire.
  9. Payment.  Vendor shall submit to Sunspire on a monthly basis an invoice for the Services and Deliverables rendered during the prior monthly period, if any.  Vendor shall, with each invoice submitted, also submit such records and supporting documentation as Sunspire shall request, identifying the Services and Deliverables rendered, the date or dates on which such Services and Deliverables were rendered, any expenses incurred during such period and the total amount due to Vendor from Sunspire.  Sunspire shall make payment of amounts due to Vendor within thirty (30) days following receipt by Sunspire of Vendor’s invoice in complete and proper form, less any disputed amounts.  Sunspire may withhold payment of all or part of the invoiced amounts if (i) Vendor commits a material breach of the Engagement or these Vendor Terms; or (ii) Sunspire, in good faith, disputes such amounts. In neither instance shall such election to withhold any payment by Sunspire excuse Vendor’s obligation to perform under the Engagement and/or these Vendor Terms.
  10. Confidentiality; General.  During the provision of the Services and/or Deliverables to Sunspire, and for a period of three (3) years after the completion thereof, Vendor and Sunspire each shall keep in confidence and not disclose to any third party (other than, in the case of Sunspire, its affiliates and third party contractors) or use for any purpose except as provided herein, any and all confidential and proprietary information of the other Party disclosed before or during the term of the Engagement and these Vendor Terms (“Confidential Information”).  Each Party shall be responsible to the other for any breach of this provision by any party to whom it is permitted to disclose the other Party’s Confidential Information.  For purposes hereof, Confidential Information shall be deemed to include, but shall not be limited to, trade secrets, knowhow and other proprietary information relating to products, operations, customers, suppliers and other business information and shall specifically include any Sunspire Data (as defined below) and the terms and existence of the Engagement and/or these Vendor Terms. In furtherance of the foregoing, Vendor may not speak to the public or to representatives of the media about or on behalf of Sunspire, absent express written authorization to do so from authorized Sunspire representatives. The foregoing use and confidentiality restrictions shall not apply to (i) information that is or becomes publicly available through no fault of the receiving Party; (ii) information that is obtained lawfully from a third party not bound to obligations of secrecy to the disclosing Party; (iii) information that is developed by or for a Party independent of and without reliance on Confidential Information; and (iv) information within a Party’s possession prior to the beginning of the relationship of the parties and effectiveness of these Vendor Terms that was not received under an obligation to keep the same confidential.  If a Party is compelled to disclose Confidential Information by law, stock exchange rules, or governmental order, then the compelled Party shall, prior to disclosure, provide the other Party with notice of the circumstances to allow the other Party a reasonable opportunity to contest any such disclosure.  Information shall not be deemed to be publicly available merely because more general information may be publicly available.  Each Party shall not use and shall return all Confidential Information of the other Party (along with all copies thereof), after the completion of the provision of the Services and/or Deliverables to Sunspire, except that legal counsel for each Party may retain an archival copy or other appropriate record of the same to assure compliance.  Notwithstanding the foregoing, either Party may disclose the terms of these Vendor Terms in proceedings to enforce the same.
  11. Sunspire Data.  Without limiting the restrictions set forth herein, in performing the Services, Vendor shall adhere to Sunspire’s policies relating to security of and access to Sunspire Data.  At a minimum, Vendor shall use no less than legally mandated and industry standard best practices for securing Sunspire Data, so as to reasonably ensure that the Sunspire Data is not lost or stolen, or otherwise used, modified or accessed by any other party without Sunspire’s prior written approval.  Vendor shall immediately, upon discovery, notify Sunspire of (i) any unauthorized disclosure, possession, use or modification of the Sunspire Data or any attempted breach of Vendor’s security measures, by any person or entity; and (ii) the corrective action taken in response thereto. For purposes of this Agreement, “Sunspire Data” shall consist of any combination of: (a) Sunspire Confidential Information, (b) Sunspire IP, and (c) any data which relates to an identified or identifiable person, and specifically his/her physical, psychological, mental, economic and/or social identity.
  12. Security of Personal Data; BAA.  Vendor represents and warrants to Sunspire that it will have in place technical and organizational security measures that are aimed at protecting personal data from and against accidental or unlawful destruction, loss, alteration, unauthorized disclosure and against all forms of unlawful processing and appropriate procedures such that any Vendor Personnel, Subcontractor or other Party having access to personal data will respect and maintain the confidentiality and security of the personal data. In addition, if any of the personal data supplied to Vendor consists of protected health information (“PHI”), then such information shall be maintained subject to the provisions of a business associates agreement (“BAA”) which the parties hereto shall duly execute, as required under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104‑191 and related regulations promulgated thereunder, the Health Information Technology for Economic and Clinical Health Act, and Title XIII of the American Recovery and Reinvestment Act of 2009. In the event of a conflict between these Vendor Terms and a BAA consummated by the parties, the provisions of the BAA shall govern the rights and obligations of the parties in respect of such PHI.
  13. Use of Names and Trademarks.  Vendor shall not make any oral or written statement or perform any act indicating that Sunspire endorses or approves or has endorsed or approved Vendor or its work products.  Nothing contained herein will be construed as conferring any right to use in advertising, publicity or other promotional activities any name, trade name, trademark or other designation of a Party (including any contraction, abbreviation or simulation of any of the foregoing) without the prior written approval of such Party.
  14. Insurance.  Vendor shall carry at its own expense insurance coverage in customary amounts within Vendor’s industry.  Upon Sunspire’s request, Vendor will provide Sunspire with a certificate of insurance evidencing such coverage upon execution hereof and will provide Sunspire with at least thirty (30) days’ prior written notice of cancellation or material adverse change of such policies.  The Vendor must name Sunspire, its subsidiaries, affiliates and assignees including the legal entity involved in the contract/lease as additional insured by broad term endorsement to Vendor’s insurance policies and shall provide a waiver of subrogation in favor of Sunspire.  Vendor’s insurance policies shall be primary regardless of other available insurance. If Vendor should subcontract any of the Services or Deliverables to a third party, Vendor shall require that such third party maintains insurance in the same amounts reference above and the third party shall furnish Certificate of Insurance to Sunspire and such insurance shall list Sunspire as an additional insured. All insurance policies required to be maintained should be issued by companies that are approved in the state where the services/work is conducted. Such companies should have an S&P Rating of no less than A-.
  15. Failure to follow the Vendor Terms.  Sunspire takes these Vendor Terms seriously.  Any violation of these Vendor Terms may result in the termination of the Engagement with us and/or disqualification from consideration for future business opportunities with us. In addition, the failure to comply with applicable laws and regulations may result in our reporting the circumstances of the violation to a governmental authority. 
  16. Reporting a Potential Violation.  If you are not sure about the appropriateness of a situation, or if you believe you or your organization’s conduct may have violated our policies or any law or regulation while you are conducting business on behalf of Sunspire, we expect that you will promptly report the potential or suspected violation to us by: (i) contacting the Chief Compliance Officer at 215-803-3441.
  17. Non-Retaliation and Non-Intimidation Policy.  In accordance with the Federal Enforcement and Recovery Act of 2009, “FERA”, Sunspire maintains a strict policy of non-retaliation and non-intimidation that protects individuals who report ethical or legal issues in good faith.  This includes, but is not limited to, any employee, contractor, agent, vendor or other associated individual who, in good faith, raises concerns or allegations of possible violations of these Vendor Terms, or any other Sunspire policies or procedures, Federal and/or State laws, or regulations.  Any individual or entity who in good faith reports a potential ethical or legal issue or concern will not be retaliated against, intimidated, threatened, harassed or discriminated against in any other manner.
  18. False Claims Act and Fraud Enforcement and Recovery Act.  Under both the Federal and New Jersey False Claims Acts (together, the “FCA”), it is illegal to knowingly present, or cause to be presented, a false or fraudulent claim or statement to the government or “to a contractor, grantee, or other recipient” acting on behalf of the government or “to advance a Government program or interest.”  The term “knowingly” means acting not only with actual knowledge but also with deliberate ignorance or reckless disregard of the truth.  Individuals or organizations violating the FCA may be subject to large fines and possible exclusion from the right to participate in federal programs. Any Vendor acting on behalf of Sunspire is also subject to the FCA. Individuals with knowledge of fraudulent or improper activity may file a lawsuit on behalf of the government, called Qui Tam. Both Federal and New Jersey state laws prohibit retaliation against “whistleblowers”—individuals filing such lawsuits or otherwise assisting the government in the prosecution of a violation of the FCA.  Sunspire adheres to a strict policy of non-retaliation and non-intimidation policy, as more fully discussed above.
  19. Indemnification. Vendor shall defend, indemnify and hold Sunspire and its agents harmless against any and all claims, demands or causes of action of every kind and character arising from or in connection with: (i) infringement of copyright, patent, trade secret or other intellectual property right of any kind whatsoever, arising out of Services, the Deliverables or resources performed, provided or used by Vendor, Vendor Personnel (each, an “Infringing Item”); (ii) Vendor’s breach of these Vendor Terms (iii) any damage to property and injuries (including death) to any persons, caused by Vendor; (iv) the negligence, willful misconduct, fraud and bad faith of Vendor; and (v) claims by or on behalf of Vendor Personnel, including for payment of wages or benefits or relating to occupational safety and health, workers’ compensation, ERISA, unemployment compensation, fair employment practices or other applicable law.  Vendor shall bear the expense of such defense and pay any damages, penalties, attorneys’ fees and related costs, which are attributable to such claim.  For purposes of this Section 19, all references above to “Vendor” shall include acts or omissions carried out by Vendor Personnel.
  20. Settlement.  Vendor shall have the sole right and discretion to settle, compromise or otherwise dispose of the claim, provided that Sunspire may elect to participate in such defense at its sole option and expense, in which case Sunspire shall, at its sole option, control the defense of the claim and all negotiations for settlement, compromise or other disposal of the claim.  Sunspire agrees to use its commercially reasonable efforts to promptly notify Vendor of a claim or suit that is subject to Vendor’s indemnification obligations hereunder and provide reasonable cooperation (at the Vendor’s expense) and full authority to defend or settle the claim or suit.  Vendor may not enter into (i) any non-monetary settlement; (ii) any settlement that requires Vendor to admit fault; or (iii) any settlement that does not contain a release of Sunspire, without the prior written consent of Sunspire, which consent shall not be unreasonably withheld or delayed.
  21. Remedies.  Without limiting Vendor’s indemnification obligations set forth herein, if any Infringing Item provided by or on behalf of Vendor becomes the subject of a claim hereunder, or in Vendor’s opinion is likely to become the subject of such a claim, then Vendor shall, at Sunspire’s option, either (i) replace or modify the Infringing Item to make it non-infringing, while maintaining equivalent functionality; or (ii) procure for Sunspire the right to continue using the Infringing Item pursuant hereto. Any costs associated with any of the above alternatives shall be borne by Vendor.
  23. Termination.  Unless Sunspire and Vendor shall agree otherwise in writing, Sunspire may terminate a Vendor Engagement at any time for convenience upon ten (10) days’ prior notice to Vendor.  Upon receipt from Sunspire of such a notice of termination, Vendor shall not undertake any new work and Vendor shall cooperate with Sunspire, as reasonably requested by Sunspire, to wind down all work under the Engagement within ten (10) days.
  24. Effect of Expiration or Termination.  Upon termination of these Vendor Terms: (i) Vendor shall provide to Sunspire all Sunspire IP, including all Deliverables that are finished works or works in progress in Vendor’s  possession or control, and all Confidential Information of Sunspire.  Upon Sunspire’s request, Vendor shall transfer, at no cost to Sunspire, with the approval of the applicable third parties, all contracts and arrangements, if any, entered into by Vendor in furtherance of completion of the Services and/or the Deliverables; and (ii) In the event that Sunspire has prepaid fees for any Services or Deliverables that have not been completed upon termination, Vendor will provide a refund to Sunspire of any prepaid amounts for Services that were not provided within thirty (30) days of termination.  In the event that Vendor has properly provided Services through the date of termination that have not been paid for by Sunspire, Sunspire will pay for such Services within forty five (45) days of receipt of an invoice detailing such fees.
  25. Governing Law.  These Vendor Terms shall be governed by, and construed and enforced in accordance with, the laws of the State of New Jersey without regard to its provisions concerning conflicts or choice of law. All disputes arising under these Vendor Terms shall be solely and exclusively adjudicated in the state or federal courts situated in the State of New Jersey. It is specifically agreed that these Vendor Terms shall not be covered by nor construed in accordance with the terms of the United Nations Convention on Contracts for the International Sales of Goods.
  26. Assignment; Binding Effect.  Without the prior written consent of Sunspire, Vendor’s rights and obligations hereunder and to Sunspire shall not be assignable (i) by Vendor directly; (ii) by merger, operation of law or otherwise; or (iii) in connection with a change of control of Vendor, except to the successor or assignee of all or substantially all of the assignor’s business to which the Engagement relates.  When duly assigned in accordance herewith, these Vendor Terms shall be binding on and inure to the benefit of each Party’s successors and assignees.
  27. Headings; Construction.  Headings as to the contents of particular sections are provided for convenience of reference only and are in no way to be construed as part of these Vendor Terms or as a limitation of the scope of the particular sections to which they refer.  These Vendor Terms shall be construed without regard to any presumption or other rule requiring construction hereof against the Party causing this Vendor Terms to be drafted.
  28. Severability.  If any provision of these Vendor Terms or the application thereof to any person or circumstances is held invalid or unenforceable in any jurisdiction, the remainder of these Vendor Terms, and the application of such provision to such person or circumstance in any other jurisdiction or to other persons or circumstances in any jurisdiction, shall not be affected thereby, and to this end the provisions of these Vendor Terms shall be severable.
  29. Non-Waiver.  Failure of either Party to exercise any of its rights under these Vendor Terms upon one occasion shall not waive such Party’s right to exercise the same on another occasion.
  30. Independent Contractors.  The Parties are independent contractors and nothing contained in these Vendor Terms shall be construed to place the Parties in the relationship of employer and employee, partners, principal and agent, or joint venturers.  Vendor shall not have the power to bind or obligate Sunspire, nor shall Vendor hold itself out as having such authority.  Vendor shall not make any commitments or disbursements or incur any obligations in the name of, on behalf of or for Sunspire or any of its subsidiaries, divisions or affiliates, without the prior approval of Sunspire.
  31. ConflictsIf any provision in these Vendor Terms conflict with: (i) terms that are imposed on Sunspire by a Vendor in such Vendor’s standard purchase order, insertion order or the like, the terms and conditions hereunder shall prevail and supersede the former, and (ii) the terms in a definitive agreement negotiated in good faith between Sunspire and Vendor, then such terms in the definitive agreement shall prevail.

© 2016 Sunspire Health