Statutory Flowdowns and Policies for Varian Suppliers, Subcontractors, Distributors, Resellers, and OEMs
Varian Suppliers, Subcontractors, Distributors, Resellers, and Original Equipment Manufacturers (OEMs) shall be obligated to comply with the statutory flowdown provisions set forth below, as well as the Varian policies located at [website link to be provided later]. Despite the fact that the terms “Supplier,” “Subcontractor,” “Distributor,” “Reseller,” “OEM,” and “Agreement” are capitalized, they are not defined here and shall have the meaning and be conformed to the terms set forth in the controlling agreement between the parties as applicable. For clarity, OEMs shall apply to those companies that are combining Varian products with other products to create new products to sell to customers and shall specifically exclude Suppliers to Varian unless otherwise defined in a controlling agreement. The list below contains some frequently-cited and broadly applicable statutes that are cited for attention and emphasis. This is not intended to comprise a complete list of applicable statutes, and all applicable laws should be followed regardless of whether they are listed below.
Conflict Minerals. “Conflict Minerals” shall have the meaning ascribed to it under Dodd-Frank Wall Street Reform and Consumer Protection Act and shall include, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives, 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 shall disclose any Conflict Minerals used in the production of any product subject to this Agreement, and, in the event such materials are used, 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 Varian of measures taken to assure the appropriate sourcing and chain of custody of such materials.
Disqualification or Debarment. Supplier represents and warrants that neither Supplier nor any of its 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 Varian immediately if any of the foregoing is not true for any reason at any time. Varian 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 of its or their respective 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 this Agreement. If, during the term of this Agreement, Supplier becomes aware of a change in status and that Supplier, its affiliate, or its subcontractor is no longer in compliance, Supplier shall promptly notify Varian of the change in status in writing, and Varian shall have the right to terminate this Agreement 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 in relation to such performance, neither Supplier nor its affiliates nor any of its or their respective personnel (including subcontractors) has made or will make any payments of money or offer, promise, or 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 Varian any breach of this representation. Supplier will certify annually to Varian 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. Varian 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 Varian immediately upon learning of any such violation. Varian 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. Varian 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 shall comply with all of the statutory flowdowns imposed upon Suppliers, except where specifically indicated that a requirement does not apply to Subcontractors.
Distributors shall comply with the Supplier flowdown provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.
Resellers shall comply with the Supplier flowdown provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.
ORIGINAL EQUIPMENT MANUFACTURERS (OEMS)
OEMs shall comply with the Supplier flowdown provisions entitled Disqualification or Debarment, Government Employment, and Prohibition of Corrupt Acts.