Statutory Flowdowns and Policies for Varex Suppliers, Subcontractors, Distributors, Resellers, and OEMs

Varex Suppliers, Subcontractors, Distributors, Resellers, and Original Equipment Manufacturers (OEMs) are obligated to comply with the statutory flowdown provisions set forth below, as well as the Varex policies located at www.vareximaging.com.  The statutory flow down provisions and Varex policies stated herein are incorporated by this reference.  The capitalized terms “Supplier,” “Subcontractor,” “Distributor,” “Reseller,” “OEM,” and “Agreement” are not defined here, however, such capitalized terms have the meaning and conform to the terms set forth in the controlling agreement between the parties as applicable.  For clarity, OEMs are those companies which incorporate the Varex products into the OEM’s system for sale to the OEM customers.  The term OEM specifically excludes Suppliers to Varex unless otherwise defined in a controlling agreement.  

 

SUPPLIERS

Conflict Minerals.  The term “Conflict Minerals” has the meaning ascribed to it under Dodd-Frank Wall Street Reform and Consumer Protection Act and includes, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or derivatives of the foregoing, or any other mineral or its derivatives determined by the U.S. Secretary of State to be financing conflict in the Democratic Republic of the Congo.  Supplier is under a statutory duty to disclose any Conflict Minerals used in the production of any product supplied to Varex.  In the event Conflict Minerals are used, Supplier shall submit, as applicable, either (i) its report filed with the Security and Exchange Commission under Section 1502 of the Dodd-Frank Act, or (ii) a description reasonably acceptable to Varex of measures taken to assure the appropriate sourcing and chain of custody of such Conflict Minerals.

Disqualification or Debarment.  Supplier represents and warrants that neither Supplier nor any of its principals, employees or subcontractors (i) is, or is in anticipation of being debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; (ii) has not, in the preceding three (3) year period, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; (iii) has not, in the preceding three (3) year period, and is not in violation of Federal or state antitrust statutes relating to the submission of offers, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property; (iv) is not presently indicted and has not, in the preceding three (3) year period, been indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of the foregoing offenses; and (v) has not, in the preceding  three (3) year period, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied.

Supplier further represents and warrants that neither Supplier nor any of its principals, employees or subcontractors is, or is in anticipation of being (based on a conviction by the courts or a finding of fault by a regulatory authority):  (i) debarred pursuant to the Generic Drug Enforcement Act of 1992 (21 USC § 355a), as amended from time to time; (ii) disqualified from participating in clinical trials pursuant to 21 CFR § 312.70, as amended from time to time; (iii) disqualified as a testing facility under 21 CFR Part 58, Subpart K, as amended from time to time; (iv) excluded, debarred, or suspended from or otherwise ineligible to participate in a “Federal Health Care Program” as defined in 42 USC 1320a-7b(f), as amended from time to time; or (v) included on the HHS/OIG List of Excluded Individual/Entities, the General Services Administration’s List of Parties Excluded from Federal Programs, or the FDA Debarment List. 

Supplier shall notify Varex immediately if any of the foregoing representations is not true for any reason at any time.  Varex shall be entitled to terminate the Agreement immediately with written notice to Supplier if any of the foregoing is not true.

Government Employment.  Supplier represents that neither Supplier nor any of its affiliates, nor any related personnel (including subcontractors) is: (i) an official or employee of a national, state, or local government or any agency or instrumentality of them; (ii) an official of a political party; or (iii) a candidate for political office (“Official” in this paragraph).  Supplier further represents that no Official owns or otherwise has any interest in Supplier or an interest in this Agreement or any agreement between Varex & Supplier.  If, during the term of this Agreement, or any agreement between Varex and Supplier, Supplier becomes aware of a change in status or Supplier, its affiliate, or its subcontractor is no longer in compliance, Supplier shall promptly notify Varex of the change in status in writing.  Varex shall have the right to terminate this Agreement, or any agreement between Varex and Supplier, upon written notice to Supplier.

Prohibition of Corrupt Acts.  Supplier represents and warrants that in the performance of its obligations under this Agreement and in connection with its activities related to such performance, neither Supplier, its affiliates, nor any of its or their respective personnel (including subcontractors) has made or will make any payments of money, has offered, promised, paid or offered to pay directly or indirectly, anything of value to any official or employee of a national, state, or local government or any agency or instrumentality of them, an official of a political party, or a candidate for political office (collectively “Official” in this paragraph), to induce such Official to use their influence with a foreign government or instrumentality for the purpose of influencing any act or decision (including a decision not to act) of such Official in his or her official capacity, to induce the Official to do any act in violation of his or her lawful duty, or to secure any improper advantage in order to assist it in obtaining or retaining business for or with either party to the Agreement or any other person, or in directing business to either party or any other person.  Supplier will report immediately to Varex any breach of this representation.  Supplier will certify annually to Varex that it has no knowledge of any such payments or offers.  (Source:  The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. and other anti-corruption laws.)

Slavery and Human Trafficking.  Varex is committed to eradicating slavery and human trafficking and is statutorily required to report on its efforts under the California Transparency in Supply Chain Act (Cal. Civil Code section 1714.43).  Accordingly, Supplier and its Subcontractors certify that their performance of the Agreement shall not violate any applicable laws regarding slavery and human trafficking and shall notify Varex immediately upon learning of any such violation.  Varex shall have the right to perform through third party auditors reasonable, but unannounced, audits of Supplier and its Subcontractors to ensure compliance with this Section.

Small Business Compliance.  Varex is a government contractor and is subject to the requirements of FAR section 52.219.  Pursuant to FAR 52.219.9 and to the extent applicable, if Supplier has U.S. operations and (a) is not considered a Small Business (as the term is defined in Section 3 of the Small Business Act) and (b) is providing goods or services under this Agreement in an amount greater than or equal to $650,000, Supplier will comply with the provisions of FAR 52.219.  If Supplier has U.S. operations, will be using a subcontractor for any of the goods or services provided hereunder and meets the criteria in (a) and (b) above, Supplier will be required to have a small business plan in place.

 

SUBCONTRACTORS

Subcontractors shall comply with all of the statutory flow downs imposed upon Suppliers, except where specifically indicated that a requirement does not apply to Subcontractors.

 

DISTRIBUTORS

Distributors shall comply with the Supplier flow down provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.

 

RESELLERS

Resellers shall comply with the Supplier flow down provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.

 

ORIGINAL EQUIPMENT MANUFACTURERS (OEMS)

OEMs shall comply with the Supplier flow down provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.