MASTER AGREEMENT BETWEEN

SAN MATEO COUNTY

AND MEDASSETS SUPPLY CHAIN SYSTEMS, LLC

This MASTER AGREEMENT (the “Agreement”) is made and entered into as of the ___ day of _____________, 20___, between MedAssets Supply Chain Systems, LLC, a Delaware limited liability company with its principal office at 280 South Mount Auburn Road, Cape Girardeau, MO 63703 (“SCS,” “MedAssets,” or “Contractor”) and San Mateo County, with its principal office at 400 County Center, Redwood City, CA 94063 (“San Mateo” or “County”) (each a ”Party” and collectively, the “Parties”).

MedAssets and its affiliates, Aspen Healthcare Metrics, LLC (“Aspen”), MedAssets Analytical Systems, LLC (“MAS”) and MedAssets Net Revenue Systems, LLC (“NRS”) (each an “Affiliate” and collectively the “Affiliates”), offer integrated services which assist healthcare providers in improving business processes and cash flow.  Any Affiliate with whom San Mateo has an executed Statement of Work (each an “SOW”) for goods or services pursuant to the terms hereof shall be deemed a “Participating Affiliate”.  MedAssets is entering into this Agreement for itself and on behalf of these Participating Affiliates.

San Mateo owns healthcare providers, and wishes to enter into an agreement to facilitate the use of the MedAssets Services (as defined below).

In consideration of the mutual agreements and promises contained herein, and for other valuable consideration, receipt of which is acknowledged, MedAssets and San Mateo agree as follows:

1. Definitions

.

Background Technology shall mean all designs, drawings, models, prototypes, information and technology proprietary to MedAssets, which: (i) MedAssets has acquired or acquires from third parties; (ii) MedAssets creates outside of its performance of the Services under this Agreement; or, (iii) relates to skills and knowledge of a general nature acquired by MedAssets in the course of performance of Services under this Agreement.

Covered Facilities shall mean those entities which are participating under an SOW executed between the Parties and which are listed on such SOW as a “Covered Facility”.

Effective Date shall be January 1, 2011 (the “Effective Date”).

Intellectual Property Rights shall mean patent rights, copyright rights (including, but not limited to, moral rights), trademarks, trade secret rights, and any other intellectual property rights recognized by the law of any applicable jurisdiction.

MedAssets Deliverables shall mean the Work, reports or other deliverables (except to the extent that such deliverable incorporates MedAssets Background Technology) that MedAssets or a Participating Affiliate is obligated to deliver to San Mateo, as set forth in the applicable SOW.

Program shall mean the goods and services provided by MedAssets or a Participating Affiliate pursuant to all executed SOW(s).

Proprietary Information shall mean: (i) the terms of this Agreement and all exhibits, SOWs and Schedules attached hereto; (ii) each Party’s business processes and plans; (iii) San Mateo’ Data provided to MedAssets; and, (iv) any other information which is disclosed to the other Party which is marked “Confidential” or “Proprietary” or which by its nature should reasonably considered to be confidential or proprietary. However, the foregoing definition is subject to the provisions of the California Public Records Act, California Government Code Sections 6250 et seq., and any information required to be disclosed by the California Public Records Act shall only be disclosed pursuant to Section 8.2(v), below.

Services shall mean the services to be provided by MedAssets to San Mateo as set forth in any attached or subsequently executed SOW.

Statement of Work or SOW means one (1) or more documents MedAssets, or a Participating Affiliate, and San Mateo will develop and enter into (including those attached hereto) which are in substantially the form attached, incorporating a description of the specific services requested by San Mateo and other applicable terms and conditions.

Term shall commence on the Effective Date and continue through the expiration of the last SOW attached to this Agreement, including any amendment, extension or renewal thereof.

2. Agreement Attachments. The following attachments are to be considered an integral part hereof, and are incorporated into the Agreement by this reference:

Exhibit A: Request for Sales Tax Exemption Certificate

Exhibit B: County of San Mateo – Standard Terms and Conditions

Exhibit C: Assurance of Compliance with Section 504 of the Rehabilitation Act of 1973, as Amended

Exhibit E: Corporate Compliance SMMC Code of Conduct (Third Parties)

SOW 1: SCS SOW for the Group Purchasing Program (the “GPO Program”)

3. Scope of Services. MedAssets, or a Participating Affiliate, and San Mateo will develop and enter into one (1) or more SOW(s), incorporating a description of the specific services requested by San Mateo. Each SOW will set forth, among other things, project scope, fees, various project activities and tasks to be performed by the Parties, deliverables and roles and responsibilities of the Parties. Each SOW shall specifically identify this Agreement and indicate that it shall be governed by the terms hereof. To the extent there are any conflicts or inconsistencies between this Agreement and any SOW, the provisions of the SOW shall govern and control.

4. Compensation.

4.1 Payment for Services.  During the applicable Term, San Mateo shall pay to MedAssets the fees set forth in the SOW(s) which have been executed by MedAssets, or a Participating Affiliate, and San Mateo (collectively, the “Fees”), as consideration for the Services. Such fees will always be subject to the not-to-exceed amount of each such SOW, and in no instance shall San Mateo be obligated to pay any fees beyond the listed not-to-exceed amount of each SOW. The Parties agree and acknowledge that any modification to the “Covered Facilities” set forth in a SOW may require a change in fees charged. Any such change in fees shall be mutually agreed to by the Parties hereto.

4.2 Terms of Payment. MedAssets may submit monthly invoices for Services performed for the prior month under this Agreement or pursuant to a valid SOW.  Terms for payment on any undisputed amounts are net thirty (30) days from the invoice date.  If requested by MedAssets, San Mateo shall issue a purchase order (the “PO”), or alternative document acceptable to the Parties, on or before commencement of Services.  MedAssets may deduct from San Mateo’s earned Shareback (as defined in SOW 1) any unpaid, undisputed Fees due from any agreement between San Mateo and MedAssets or a Participating Affiliate.

Any undisputed amount owed by San Mateo which is not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum amount allowable by law, whichever is less. Additionally, MedAssets reserves the right to suspend any Service being provided under this Agreement in the event any unpaid, undisputed Fee becomes ninety (90) or more days past-due.

In the event this Agreement, or any SOW attached hereto, is terminated for any reason other than a breach by MedAssets, any remaining Fees which would have otherwise been due and payable for the Services provided hereunder, or under such SOW, for the balance of the remaining term provided for in the Agreement, or such SOW, shall be invoiced immediately and shall be due and payable within thirty (30) days of the invoice date.

4.3 Expenses

. San Mateo agrees to reimburse MedAssets for all reasonable business expenses incurred by MedAssets in rendering Services hereunder, including, without limitation, reasonable travel expenses and reasonable lodging expenses (if out-of-town work is required by San Mateo). All such expenses shall be approved by San Mateo in writing in advance and such approval shall not be unreasonably withheld. And all such expenses are expressly subject to the not-to-exceed amount of each SOW as outlined in Section 4.1, above.

4.4  Taxes Excluded.  The Fees do not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied on the Services and/or products provided.  San Mateo shall pay, or reimburse MedAssets for, all such taxes imposed on San Mateo or MedAssets; provided, however, that San Mateo shall not be liable for any taxes based on MedAssets’ net income.  All sales of tangible personal property or taxable services are presumed to be subject to tax unless a properly executed Sales Tax Exemption Certificate or a Direct Pay Permit is provided.  In the event that San Mateo is exempt from sales tax, the foregoing provisions shall not apply.  In such case, San Mateo shall provide MedAssets with a completed Sales Tax Exemption Request upon signing this Agreement, attached hereto as Exhibit B and a copy of its sales tax exemption certificate to MedAssets within thirty (30) days of the Effective Date. 

5. Change Requests and Cooperation

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5.1 Project Changes

. Each SOW shall set forth the projected schedule applicable to the Services. All statements and agreements concerning time are good faith estimates based upon information available and circumstances existing at the time made, and each SOW is subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of an excusable delay (as provided herein) or upon modification of the scope, timing or level of work to be performed by MedAssets. It is mutually acknowledged that any change to an SOW mutually agreed to by the Parties in writing may modify the fees or charges payable and/or the project schedule.

5.2 Excusable Delays and Failures

. MedAssets, San Mateo or the respective Participating Affiliate will be excused from delays in performing, or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond their reasonable control. Without limiting the generality of the foregoing, both Parties acknowledge that one Party’s (the “delaying Party”) failure or delay in furnishing necessary information, equipment or access to facilities, and/or delays or failure by the delaying Party in completing tasks required of the delaying Party or in otherwise performing the delaying Party’s obligations hereunder or under any SOW and any assumption contained in an SOW which is untrue or incorrect may impede or delay completion of the Services by the non-delaying Party and will be considered an excusable delay or excusable failure to perform hereunder by the non-delaying Party . Both Parties further acknowledge that such delays or failures may result in a modification to the charges for the impacted Services, but only when such change is mutually agreed upon by the parties hereto.

6. Ownership. The Background Technology and MedAssets’ Deliverables to the extent such Deliverables incorporate the Background Technology shall be the exclusive property of MedAssets or the respective Participating Affiliate, unless otherwise expressly specified in the applicable SOW. All San Mateo data and all MedAssets’ Deliverables shall be the property of San Mateo to the extent they do not incorporate the Background Technology.

7. San Mateo’s Commitments. San Mateo will ensure that all of its personnel who may be necessary or appropriate for the successful implementation of the Services will, on reasonable notice: (i) be available to assist MedAssets’ personnel by answering business, technical and operational questions and providing requested documents, guidelines and procedures in a timely manner; (ii) participate in the Services as outlined in the SOW; (iii) participate in progress and other Services related meetings; (iv) contribute to system testing and data integrity testing; and, (v) be available to assist MedAssets or the respective Participating Affiliate with any other activities or tasks required to complete the Services in accordance with the SOW.

8. Confidentiality.

8.1 Restrictions on Proprietary Information. Each Party, as a recipient (“Recipient”), agrees that, with respect to any Proprietary Information that is disclosed to it within the scope hereof: (i) such Proprietary Information shall not be further disclosed to any person outside of the Recipient’s business organization or the business organization of any Participating Affiliate (except to contractors and consultants of the Recipient who are provided access to the Proprietary Information by mutual agreement of the Parties on Recipient’s business premises, and who are subject to appropriate nondisclosure obligations consistent with the obligations hereunder), and shall only be disclosed within the Recipient’s organization on a “need-to-know” basis to individuals who have been apprised of the confidential nature of the information; (ii) such Proprietary Information shall be treated according to the same internal security procedures, and with the same degree of care regarding its secrecy and confidentiality, as similar information of the Recipient is treated within the Recipient’s organization; and, (iii) such Proprietary Information shall remain the property of the disclosing Party, and its disclosure to the Recipient hereunder creates only a limited right of Recipient to use such information in furtherance of Recipient’s obligations under this Agreement.

San Mateo hereby grants to MedAssets and its Affiliates, a non-exclusive, fully-paid, royalty-free and irrevocable right and license to use, reproduce, display, modify, create derivative works and disclose (including the right to prepare and provide comparative pricing benchmarks) any data or information uploaded, provided, sent, transferred or otherwise transmitted by San Mateo to MedAssets in connection with the Services (the “San Mateo Data”); provided, however, that other than in connection with the performance of the Services, MedAssets is prohibited from (and such right and license specifically excludes) the right: (i) to disclose the Data other than on a non-identifying (anonymous) basis which is in full compliance with the Department of Justice Guidelines on the aggregation of pricing data; and, (ii) to use or otherwise disclose any protected health information or any other personally identifiable information.

8.2 Exceptions. Recipient’s confidentiality and nondisclosure obligations, as set forth in this Agreement, will not apply to any information or any portion thereof which:

(i) is or becomes publicly available by other than a breach of this Agreement (including, without limitation, any information filed with any governmental agency and available to the public);

(ii) is disclosed to Recipient by a third party that is legally entitled to disclose such information;

(iii) Recipient demonstrates through documented records was known by it prior to its receipt from disclosing Party;

(iv) is developed by Recipient independently of any disclosures made by the disclosing Party of such information, as demonstrated by disclosing Party’s documented records; or,

(v) is required to be disclosed by subpoena, court order, or other legal or regulatory requirement provided disclosing Party is provided with prompt written notice so that it may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.

8.3 HIPAA. The Parties agree to fully comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”).

8.4 Duration of Obligations

. This Section 8 shall govern any disclosures made during the term of the Agreement. The nondisclosure obligations of the Recipient under Section 8.2 shall remain in effect until three (3) years after the disclosure thereof, and for as long thereafter as the information may qualify as a trade secret of the disclosing Party under applicable law.

9. Warranty

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9.1 Warranties of MedAssets. MedAssets represents and warrants that the Services provided hereunder (i) will be performed in a professional manner, and, (ii) any MedAssets Deliverables provided hereunder will reasonably conform in all material respects to the specifications agreed to by the Parties in writing for a period of ninety (90) days following the completion of such Services. San Mateo may only notify MedAssets during such ninety (90) day period of any deficiency in the performance of the Services. Notwithstanding the foregoing, San Mateo’ sole and exclusive remedy, and MedAssets’ sole and exclusive liability, for a breach of the foregoing representations and warranties shall be (i) the specific support services in the applicable SOW; (ii) repeating or reprocessing of the services by MedAssets, or a Participating Affiliate, at no additional charge; or, (iii) termination pursuant to Section 12. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, MEDASSETS AND THE PARTICIPATING AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED REGARDING THE WORK AND SERVICES PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ADDITIONAL LIMITATIONS MAY BE PROVIDED FOR IN EACH SOW.

9.2 Right to Use

.  Each Party warrants that it owns all right, title, and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by this Agreement, any programming, materials, or data furnished hereunder in connection with MedAssets’ performance of the Services under this Agreement.

9.3 Limitation of Liability. San Mateo acknowledges that MedAssets’ and the Participating Affiliates’ work is advisory in nature, and that should it desire to implement any recommendations made, San Mateo is solely responsible for the results therefrom. San Mateo shall be solely responsible for compliance with state and federal statutes, laws, regulations, policies or other governmental regulations including Medicare reimbursement, and accurate and complete code assignment. Neither MedAssets nor any Participating Affiliate will be liable for any claims attributable to any errors, omissions, or other inaccuracies in the information or material contained in the data. The maximum liability of MedAssets and the Participating Affiliates arising out of or related to this Agreement, regardless of legal theory (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE SUM OF MONTHLY FEES RETAINED BY MEDASSETS OVER THE IMMEDIATELY PRECEDING SIX (6) MONTHS FOR THE SPECIFIC SERVICES IN THE SOW WHICH GAVE RISE TO THE LIABILITY.

IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF SUCH INFORMATION, MATERIAL, AND/OR IMPORTED OR EXPORTED DATA (including, without limitation, any damages for lost or damaged files or data, lost profits, lost savings, or loss of business opportunity or goodwill), EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.

The limitations of liability included in this Section 9 are fundamental to this Agreement and have been reviewed and bargained by the Parties, and neither Party would be willing to enter into this Agreement or the business relationship contemplated hereby, unless such limitations are given effect.

10. Term and Termination. This Agreement shall continue for the Term unless terminated earlier by either Party pursuant to this Section 10. In the event that an SOW contains a term different than the Term provided for in this Section 10, then the term of the SOW shall control only as it pertains to the services provided thereunder.

In the event San Mateo or MedAssets breaches any material provision of this Agreement (excluding any SOW attached hereto), the non-breaching Party shall provide written notice of such breach to the other Party. If, within sixty (60) days after receiving written notice, the breaching Party has failed to cure the breach, the non-breaching Party may, in its sole discretion, terminate this Agreement and all attached SOWs by providing a letter of termination to the breaching Party which shall specify the exact date of termination.

In the event San Mateo or MedAssets breaches any material provision of any SOW attached hereto, the non-breaching Party shall provide written notice of such breach to the other Party and the breaching Party shall have sixty (60) days to cure the breach as provided herein. If the breaching Party fails to timely cure the breach, the non-breaching Party may, in its sole discretion, terminated only the applicable SOW by providing a letter of termination to the breaching Party which shall specify the exact date of termination of such SOW. Expiration of an SOW’s term, or termination of any one SOW, shall not terminate this Agreement or any remaining SOWs, except if it is the last remaining SOW in effect.

11. General Provisions.

11.1 Access to Records.  MedAssets acknowledges that applicable portions of the Social Security Act require San Mateo to include in this Agreement a provision requiring MedAssets to allow the Secretary of the Department of Health and Human Services (“HHS”), and other authorized federal officials, access to MedAssets’ books and records as they relate to services and procedures provided pursuant to this agreement.  Therefore, if the value or cost of services rendered to San Mateo pursuant to this agreement is Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, MedAssets agrees as follows:

(i)  until the expiration of four (4) years after the furnishing of any service or procedure pursuant to this agreement, MedAssets shall, upon written request, make available to the Secretary of HHS, the Secretary’s duly authorized representatives, the Controller General, or the Controller General’s duly authorized representatives, this agreement and such books, documents and records as many be necessary to certify the nature and extent of the cost or value of services performed by MedAssets hereunder;

(ii)  if MedAssets performs any of its duties hereunder by way of a subcontract with a related organization, and the value or cost of such subcontracted duties is Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain a clause to the same effect as subparagraph (1), immediately above; and,

(iii)  the availability of MedAssets books, documents and records shall be subject at all times to such criteria and procedures for seeking and obtaining access as may be promulgated by the Secretary of HHS by regulation and other applicable laws.

11.2 Audit Rights.  Each Party, or their authorized representative, shall have the right to inspect and audit at reasonable times and upon reasonable notice during the term of the Agreement all such books, records and accounts of the other Party as necessary to establish and verify each Party’s compliance with this Agreement.  All audits will be at the expense of the requesting Party.

11.3 Compliance with Law.  The Parties mutually represent that throughout the term of this Agreement their respective performance under this Agreement shall be, and shall remain, in compliance with all applicable federal, state and local laws and regulations.

11.4 Facsimile/Electronic Mail. This Agreement and any SOW or Access Agreement may be executed by the exchange of faxed executed copies, certified electronic signatures or copies delivered by electronic mail in Adobe Portable Document Format or similar format, and any signature transmitted by such means for the purpose of executing this Agreement shall be deemed an original signature for purposes of this Agreement.  This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one (1) and the same instrument.

11.5   No Agency, Partnership or Joint Venture.  Neither MedAssets, the Participating Affiliates, nor San Mateo shall, by entering into this Agreement, become liable for any of the existing obligations, liabilities or debts of the other Party.  Neither MedAssets nor San Mateo shall, by virtue of this Agreement, assume or become liable for any of the future obligations, debts or liabilities of the other Party.  Nothing in this Agreement shall be construed as creating a partnership or joint venture between MedAssets and San Mateo or between MedAssets and any Member of San Mateo.  

11.6 Non-solicitation.  Each Party to this Agreement agrees not to recruit or hire any employee of the other Party, either as an employee or consultant, or recruit any such person for another company, while such person is employed or retained by the other Party and for a period of twelve (12) months after the employee leaves the employ of the other Party, or for a period of twelve (12) months after the termination or expiration of this Agreement, whichever period ends at the earlier date. The preceding sentence does not, however, prohibit either Party from: (i) soliciting employment by placement of general advertisements for employees in newspapers or other media of general circulation which are not specifically directed at the employees of the other Party (or any hiring resulting therefrom); (ii) soliciting persons identified through employment search firms that have not been specifically directed at the employees of the other Party (or any hiring resulting therefrom); or, (iii) soliciting or hiring any such person who contacts such Party on his or her own initiative without any prior solicitation (other than solicitations of the type contemplated by the preceding clauses.

11.7 Publicity/Use of Marks.  San Mateo agrees that MedAssets may include San Mateo in its listing of clients and may announce San Mateo's selection of MedAssets in its marketing communications. Except as otherwise agreed to herein, neither Party shall:  (i) use each other’s trademarks or service marks; or, (ii) make any press release or other public disclosure regarding this Agreement or the transactions contemplated hereby without the other Party’s express prior written consent, except as required under applicable law or by any governmental agency, in which case the Party required to make the press release or public disclosure shall use commercially reasonable efforts to obtain the approval of the other Party as to the form, nature and extent of the press release or public disclosure prior to issuing the press release or making the public disclosure.

11.8 Severability. In the event that any provision of this Agreement shall be held to be illegal, or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect; provided, however, that if the severing of such provision results in a material alteration of this Agreement, the remaining provisions of this Agreement shall be adjusted equitably so that no Party benefits disproportionately.

11.9 Survival

. The provisions of Sections 6, 8, 9, 11.10, and 11.15 hereof shall survive the termination or expiration of this Agreement. Additionally, undisputed obligations to pay for goods or services provided prior to the expiration or termination of this Agreement, or expiration or termination of an SOW, shall survive and be payable within thirty (30) days of the effective date of such expiration or termination.

11.10 Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives as of the Effective Date.

EXHIBIT A

REQUEST FOR SALES TAX EXEMPTION CERTIFICATE

Purchase of tangible personal property or taxable services for resale or for use in performing taxable services where such property becomes a component part of the property upon which the services are performed and will be actually transferred to the purchasers.

TAX EXEMPT ORGANIZATIONS:

	GOVERNMENT – Purchases by governmental agencies and institutions of (1) the United States; (2) the State (including local governments); and (3) other instrumentality of the state (i.e. hospital districts) which are exempted from sales tax. An exemption certificate from the state is required.
		NONPROFIT ORGANIZATIONS – Purchases by a corporation or organization which has a current registration certificate and which is exempt from federal income taxes under section 501(c)(3) or (c)(4) of the Internal Revenue Code. An exemption certificate from the state is required.
I declare that the information above on my sales tax exemption status is true to the best of my knowledge and belief.
	Signature of Authorized Party Print Name			Date

Please forward your valid Exemption Certificate and/or Direct Pay Permit to MedAssets via:

E-mail: Exemptioncert@medassets.com

Fax: (866) 493-3236

Mail: MedAssets Managed Tax Services

c/o Taxcient, Inc.

500 Sugar Mill Road

Bldg A; Ste 150

Atlanta, GA 30350

EXHIBIT B

THE COUNTY OF SAN MATEO TERMS AND CONDITIONS

1. Term and Termination. Subject to compliance with all terms and conditions, the term of this Agreement shall be the Term set forth by the Master Agreement Between San Mateo County and MedAssets Supply Chain Systems, LLC, above..

This Agreement may be terminated by Contractor, San Mateo Medical Center’s Chief Executive Officer or his/her designee at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party.

In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor for County under this Agreement shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Agreement.

2. Availability of Funds. The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the County learns of said unavailability of outside funding.

3. Relationship of Parties. Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent Contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.

4. Hold Harmless. Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all third party claims, suits, or actions of every name, kind, and description, brought for, or on account of negligence or misconduct by Contractor or its office, agents or employees which result in: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, or (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended.

The foregoing obligation shall not apply to any claim, suit, or action brought for, or on account of, County’s negligence or misconduct, or the negligence or misconduct of its officials, agents or employees. The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

5. Assignability and Subcontracting. Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement.

6. Insurance. The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Risk Management, and Contractor shall use diligence to obtain such insurance and to obtain such approval. The Contractor shall furnish the Department/Division with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor’s coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days’ notice must be given, in writing, to the Department/Division of any pending material change in the limits of liability or of any cancellation of the policy.

7. Worker’s Compensation and Employer’s Liability Insurance. The Contractor shall have in effect during the entire life of this Agreement Workers’ Compensation and Employer’s Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Workers Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Agreement.

8. Liability Insurance. The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Personal Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from contractors operations under this Agreement, whether such operations be by himself/herself or under any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.

Such insurance shall include:

(a) Comprehensive General Liability . . . . . . . . . . . . . $1,000,000

(b) Motor Vehicle Liability Insurance . . . . . . . . . . . . .$1,000,000

(c) Professional Liability . . . . . . . . . . . . . . . . . . . . . . .$1,000,000

County and its officers, agents, employees and servants shall be named as additional insured on any such policies of insurance. In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be materially diminished or canceled, the County of San Mateo at its option may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

9. Compliance with laws; payment of Permits/Licenses. All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, including, but not limited to, Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and attached hereto and incorporated by reference herein as Exhibit C, which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. Further, Contractor certifies that the Contractor and all of its subcontractors will adhere to all applicable provisions of Chapter 4.106 of the San Mateo County Ordinance Code, which regulates the use of disposable food service ware.

In the event of a conflict between the terms of this agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement.

Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.

10. Non-Discrimination and Other Requirements. Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with §504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.

General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Agreement.

Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.

Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties to be determined by the County Manager, including but not limited to termination of this agreement.

Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5 (a), which is incorporated herein as if fully, set forth.

11. Compliance with Contractor Employee Jury Service Ordinance. Contractor shall comply with the County Ordinance with respect to provision of jury duty pay to employees and have and adhere to a written policy that provides that its employees shall receive from the Contractor, on an annual basis, no less than five days of regular pay for actual jury service in San Mateo County. The policy may provide that employees deposit any fees received for such jury service with the Contractor or that the Contractor deduct from the employees’ regular pay the fees received for jury service.

12. Retention of Records, Right to Monitor and Audit. CONTRACTOR shall maintain all required records for three (3) years after the COUNTY makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.

Reporting and Record Keeping: CONTRACTOR shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the COUNTY.

CONTRACTOR agrees to provide to COUNTY, to any Federal or State department having monitoring or review authority, to COUNTY’s authorized representatives, and/or their appropriate audit agencies, upon reasonable notice, access to and the right to examine all records and documents related to Contractor’s Services provided to COUNTY under this Agreement and reasonably necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness and timeliness of services provided.

13. Merger Clause. The Agreement, including the Exhibits and SOWs attached and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this document's date. In the event that any term, condition, provision, requirement or specification set forth in this body of the agreement conflicts with or is inconsistent with any term, condition, provision, requirement or specification in any exhibit and/or attachment to the agreement, the provisions of this Exhibit B to the Agreement shall prevail. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties.

14. Controlling Law and Venue. The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California, without regard to conflict of law rules. Any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or the United States District Court for the Northern District of California.

15. Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when both (1) transmitted via facsimile to the telephone number listed below and (2) either deposited in the United Sates mail, postage prepaid, or when deposited for overnight delivery with an established overnight courier that provides a tracking number showing confirmation of receipt for transmittal, charges prepaid, addressed to:

In the case of County, to:

Attn: Materials Management

San Mateo Medical Center

222 W. 39^th Avenue

San Mateo, CA 94403

Fascimile: (650) 573-2030

In the case of Contractor, to:

Corporate Contracting

MedAssets Supply Chain Systems, LLC

280 S Mount Auburn Road

Cape Girardeau, MO 63703

Fascimile: (573) 332-2118

In the event that the facsimile transmission is not possible, notice shall be given both by United States mail and an overnight courier as outlined above.

SOW 1

GROUP PURCHASING PROGRAM

THE UNDERSIGNED PARTIES ACKNOWLEDGE AND AGREE THAT THIS SOW IS MADE PART OF THE MASTER

AGREEMENT DATED AS OF THE _________DAY OF ____________, 20___ (THE “AGREEMENT”).

1. Term and Termination.

1.1 SOW Term. The GPO Program (the “GPO Program”) provided under this SOW shall commence upon the Effective Date (the “GPO Program Effective Date”) and continue for a period of 60 months therefrom, expiring December 31, 2015 (the “GPO Program Initial Term”) and shall automatically renew for no more than two (2) successive one (1) year extensions unless either party gives written notice to the other party, at least ninety (90) days prior to the expiration of the term or of any extensions or renewals thereof, of its desire not to renew (the “GPO Program Term”).

1.2 SOW Termination. In the event San Mateo or MedAssets breaches any material provision of this SOW, the non-breaching Party shall provide written notice of such breach to the other Party. If, within sixty (60) days after receiving written notice, the breaching Party has failed to cure the breach, the non-breaching Party may, in its sole discretion, terminate this SOW by providing a letter of termination to the breaching Party which shall specify the exact date of termination.

2. Covered Facilities. Individual sites covered by this SOW (each a “Covered Facility” or “Member” for the purposes of this SOW) are listed on Schedule 1 attached hereto.   Each site must be listed individually (i.e. multiple sites shall not be grouped under a common name).  MedAssets shall have no obligation to provide the GPO Program to any site not specifically listed on Schedule 1.

3. Definitions. The following Definitions shall pertain to the GPO Program:

Administrative Fee shall mean a payment from Participating Vendors to MedAssets based upon purchases by Members through the Program.

Group Purchasing Organization shall mean a business, company, enterprise, joint venture, association, partnership, limited partnership, limited liability company or corporation; organized as a cooperative, for profit or not-for-profit, owned separate and apart of its Members; to provide commodity group purchasing services and/or programs, group contract negotiations and/or ancillary professional, technical or managerial services, or some similar combination of services thereof to its Members.

Group Purchasing Sales shall mean Member’s purchases through the Program during the Term of the Agreement.

Member shall mean any healthcare provider organization which is owned by San Mateo. A list of the current Members is attached as Schedule 1 hereto. San Mateo represents and warrants it has the legal authorization to execute this Agreement on behalf of those Members.

Participating Vendor shall mean any manufacturer, wholesaler or distributor which has executed a Vendor Agreement to sell products or services through the Program.

Rebate shall refer to any payment by a Participating Vendor to MedAssets based upon a reduction in price of a product or service sold through the Group Purchasing Program identified as a rebate.

Report shall mean a report Administrative Fees received by MedAssets based upon Group Purchasing Sales. An example of the Report is attached as Exhibit A.

Vendor Agreement shall mean the contracts executed between MedAssets and Participating Vendors pursuant to which Members may purchase products and services.

4. Fees. The GPO Program shall be provided in consideration of the Administrative Fees retained by MedAssets under the Terms of this SOW.

5.  Description, Deliverables and Obligations of the Parties.

5.1 Description. The GPO Program is a portfolio of contracts consisting of products and services.

5.2  Deliverables.  MedAssets shall provide the GPO Program to San Mateo in accordance with the terms provided in this SOW.  The GPO Program shall consist of the following:

• The Materials Management - A portfolio of contracts of medical, surgical and capital equipment products consisting of manufacturers and distributors;

• The Pharmacy Program -  A portfolio of contracts of pharmaceutical and pharmacy related products consisting of manufacturers and wholesalers;

• The Clinical Pharmacy Support Services - A portfolio of services consisting of medication information services, disease management programs, formulary management support, clinical pharmacy training, educational programs, assistance with government and Joint Commission on the Accreditation of Healthcare Organizations issues, preferred pricing of clinical pharmacy software, and programs for documenting cost-effectiveness of clinical pharmacy initiatives;

• The Laboratory Program - A portfolio of contracts of laboratory products and services consisting of   manufacturers, distributors and reference laboratories;

• The Dietary Program - A portfolio of contracts of food and food service products (including beverages, capital equipment, small wares and chemicals) consisting of manufacturers, prime vendor distribution and rebate agreements;  and,

• Any other contracts between MedAssets and Participating Vendors added during the Term.

5.2 Obligations of San Mateo.

5.2.1 Exclusivity.  San Mateo hereby designates MedAssets as the primary Group Purchasing Organization authorized to provide any of the services comprising the GPO Program to San Mateo  during the term hereof.  San Mateo agrees to neither contract for nor promote the services of any other Group Purchasing Organization to provide any of the services offered by the GPO Program during the GPO Program Term.

5.2.2  New Sites.  San Mateo may amend its Schedule 1 of owned sites with written notice to and approval of MedAssets, which such approval shall not be unreasonably withheld.  Each new site must comply with the terms hereof including providing a valid DEA number in order to access the Pharmacy Program.  Information about new sites must be provided to MedAssets forty-five (45) days in advance of the month in which purchases are to commence.

5.2.3  Own Use.  San Mateo hereby represents to and covenants with MedAssets that all purchases made through the GPO Program by San Mateo shall be made for San Mateo’s "own use" and consumption.  San Mateo shall comply with the restrictions on use and resale of products set forth in Abbott Laboratories vs. Portland Retail Druggists Assn., Inc. 425 U.S. 1 (1976) and its successor line of cases and further shall comply with the Prescription Drug Marketing Act of 1987, as applicable.  San Mateo shall indemnify and hold MedAssets harmless from any and all manner of liability including, but not limited to, costs of defense resulting from any breach by San Mateo of this Section 5.2.3. 

5.3  Obligations of MedAssets.

5.3.1 Access.  MedAssets shall provide access to the GPO Program to San Mateo pursuant to the terms and subject to the conditions hereof.  San Mateo hereby represents and warrants to MedAssets that it is authorized to enter into this Agreement.  The terms and conditions received from Participating Vendor under the GPO Program are dependent upon San Mateo’ eligibility.

5.3.2 Administrative Fee Disclosure.  MedAssets discloses and San Mateo acknowledges that during the term of this Agreement MedAssets will receive Administrative Fees from Participating Vendors which are based on purchases made by San Mateo.  San Mateo acknowledges that this Administrative Fee is not fixed at the same amount in each Vendor Agreement, and that the Vendor Agreements provide for Administrative Fees equal to three percent (3%) or less of the purchase price of the goods or services purchased by San Mateo under the Vendor Agreements. 

MedAssets will report to San Mateo, in writing, on a basis not less frequently than annually, and to the Secretary of Health and Human Services, on request, the amount received from Participating Vendors with respect to purchases made by or on behalf of San Mateo, sorted by Participating Vendor.

San Mateo understands that the discounted pricing provided as part of the GPO Program, as well as the value of any Services provided at less than full price, is a “discount” within the meaning of 42 U.S.C. Section 1320a-7b(b)(3)(A) of the Social Security Act and the regulations promulgated hereunder at 42 C.F.R. Section 1001.952(h) and that San Mateo may have an obligation to report this discount to any state or federal program which provides cost or charge-based reimbursement to San Mateo  for the items to which the discount applies.

5.3.3 Implementation and Utilization.  MedAssets shall assist San Mateo in implementing and utilizing the GPO Program, and shall monitor the performance of the Participating Vendors.  Upon request, San Mateo shall assist MedAssets in securing access to invoices, payment and/or receiving documents to resolve any question of Participating Vendor compliance.

5.3.4 Rebate(s).  MedAssets shall remit to San Mateo one hundred percent (100%) of all Rebate(s) received on purchases made by San Mateo.  MedAssets shall pay any such Rebate(s) within sixty (60) days of the cumulative value of such Rebate(s) exceeding one-hundred ($100), but in no event more frequently than on a quarterly basis.

5.3.5 Reporting. MedAssets shall provide the Report to San Mateo with the Shareback. MedAssets will maintain a sales information database that is based on reports received from Participating Vendors. The database, and all data within it, shall be and remain the property of MedAssets.

5.3.6 Revenue Sharing. MedAssets shall pay San Mateo 30% of the Administrative Fees derived from Group Purchasing Sales which MedAssets receives from Participating Vendors (the “Shareback”) provided that San Mateo’s has not breached a material term of the Agreement that remains uncured. MedAssets shall pay such earned Shareback upon the cure of any such breach. MedAssets shall pay the earned Shareback within sixty (60) days following the end of each semi-annual period. In the event this SOW or the Agreement is terminated for any reason whatsoever, any and all obligations to pay future Shareback shall immediately terminate.

Notwithstanding anything to the contrary stated herein, MedAssets shall not be obligated to pay Shareback to San Mateo in the event that:  (i) a Participating Vendor contractually prohibits MedAssets from sharing Administrative Fees with MedAssets’ members; (ii) Administrative Fees are received for which a vendor has failed to provide sufficient detail to determine whether they are derived from purchases made by San Mateo; or, (iii) a change in law or regulation occurs which MedAssets’ legal counsel reasonably believes prohibits MedAssets from sharing such Administrative Fees with its members.

6. Additional Terms and Conditions.

6.1 Vendor Obligations. It is understood that MedAssets negotiates all Vendor Agreements and facilitates communication between Members and Participating Vendors. MedAssets agrees to use commercially reasonable efforts: (i) to obtain the most advantageous terms and conditions for Members in its Vendor Agreements and shall use San Mateo Member’s lowest pricing as the baseline for such negotiations; (ii) to promote competition among vendors for participation in the Group Purchasing Program; (iii) to enforce the terms of Vendor Agreements, and to resolve, as practicable, any issues related to Vendor compliance or performance; and, (iv) to assign and to otherwise pass through, for the benefit of the Members, any such Vendor provisions.

6.2 Additional Limitation of Liability. MedAssets shall have no obligation to provide support services for: (i) any professional services provided by MedAssets outside of the scope of this SOW; (ii) any non-MedAssets computer programs, technology or hardware; (iii) any data conversion, template construction or interface design, other than as specifically set forth solely with respect to San Mateo’s systems and data as provided on the date of the completion of the applicable Setup Services; (iv) any data conversion, template construction or interface design arising out of or relating to a change in San Mateo’s system and data at any time during the SOW Term ; and/or, (iv) any MedAssets software that is not the most recent version or release. Any failure of San Mateo to pay all applicable fees for the Services as they come due shall, at MedAssets’ sole option, immediately discharge MedAssets of any obligation to provide support services hereunder.

6.3 Intellectual Property Indemnity.

6.3.1 Indemnity Generally. MedAssets agrees to defend at its expense and pay any final judgment or settlement in connection with any third-party claim based on infringement or misappropriation of U.S. copyrights, U.S. patents, trade secrets, or other proprietary rights of any third party arising out of San Mateo’s use of the Service. The foregoing indemnification obligations of MedAssets are contingent upon MedAssets being promptly notified of such claim, having the sole authority to defend or settle such claim, and receiving the reasonable assistance of San Mateo in connection therewith at MedAssets’ expense.

6.3.2 Right to Procure or Modify. If a claim of infringement under this Section 6 occurs, or if MedAssets determines that a claim is likely to occur, MedAssets will have the right, in its sole discretion, to either: (i) procure for San Mateo the right or license to continue to use the Master Service free of the infringement claim; or (ii) modify the Master Service to make it non-infringing. If these remedies are not reasonably available to MedAssets, MedAssets may, at its option, terminate this SOW and return any fees that have been paid by San Mateo in advance for future periods.

6.3.3 Indemnity Exclusions. Notwithstanding the foregoing, MedAssets has no obligation with respect to any claim of infringement that is based upon or arises out of: (i) the use or combination of the Services with any hardware, software, products, data or other materials not specified or provided by MedAssets; or (ii) San Mateo’s use of the Modules or the other Services other than in accordance with MedAssets’ written directions or policies.

6.3.4 Exclusive Remedy. The provisions of this Section 6 state the sole and exclusive obligations and liability of MedAssets and its licensors and suppliers for any patent, copyright, trademark, trade secret or other intellectual property rights infringement arising out of or relating to the Services and this SOW. The provisions of this Section 6 are in lieu of any implied warranties of non-infringement, all of which are disclaimed.

6.4 Limited License. During the applicable SOW Term, MedAssets hereby grants to San Mateo, and San Mateo accepts, a non-transferable, non-exclusive limited license to access the application listed hereunder for its internal business purposes only; provided, however, such access shall only be for the number of authorized user(s) and the for the specific Covered Facilities identified hereunder, only during the applicable SOW Term and solely for the limited purpose of receiving the Services, subject to payment of the Fees.

6.5 Limited Rights. Except as expressly authorized by this SOW, San Mateo has no right to provide access to the application offered in this Statement of Work or to transfer, sublicense or otherwise distribute MedAssets’ proprietary content of any Services to any third party. San Mateo is not authorized to access the application in any manner to provide service bureau, time sharing or other computer services to third parties. San Mateo shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of Services (including any screen displays, etc.) or any other products or materials delivered by MedAssets hereunder. San Mateo shall not copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any application in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code for the applications or any trade secret information contained in the application. Licensee does not have the right to alter, maintain, enhance or otherwise modify the application. MedAssets, or the respective Participating Affiliate, is the owner of all modifications and enhancements to the software. Except for the express license granted herein, no other licenses are granted by MedAssets by implication or otherwise.

6.6 Schedules and Exhibits. The following Schedules and Exhibits are attached thereto and are to be considered an integral part hereof and are incorporated into the Agreement by this reference:

SOW 1, Exhibit A: Sample Shareback Report

SOW 1, Schedule 1: List of Members

SOW 1, EXHIBIT A

SAMPLE SHAREBACK REPORT

Manufacturer Report

Distributor Report

Facility Report

Program Fee Summary

SOW 1, SCHEDULE 1

LIST OF MEMBERS