0- Exhibit A- Colorado Model Contract- vPA-NOIT-NK 6.02.15-Rev.pdf

CMS # *****

CORE DOC ID # 201*00000000***

1 Rev 06/02/15

EXHIBIT A – Colorado Model Contract

STATE OF COLORADO

Price Agreement with Insert Legal Name of Contractor

TABLE OF CONTENTS

1. PARTIES

2. EFFECTIVE DATE AND NOTICE OF NON-LIABILITY

3. RECITALS

4. DEFINITIONS

5. TERM

6. STATEMENT OF WORK

7. TAXES and PAYMENTS TO CONTRACTOR

8. REPORTING – NOTIFICATION

9. CONTRACTOR RECORDS

10. CONFIDENTIAL INFORMATION-ORDERING ENTITY RECORDS

11. CONFLICTS OF INTEREST

12. REPRESENTATIONS AND WARRANTIES

13. INSURANCE

14. BREACH

15. REMEDIES

16. NOTICES and REPRESENTATIVES

17. GOVERNMENTAL IMMUNITY

18. STATEWIDE CONTRACT MANAGEMENT SYSTEM

19. GENERAL PROVISIONS

20. FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT OF 2004 (“FFATA”)

21. COLORADO SPECIAL PROVISIONS

22. SIGNATURE PAGE

EXHIBIT A - SAMPLE OPTION LETTER

EXHIBIT B – PRICES AND RATES

EXHIBIT C – SAMPLE SUMMARY CONTRACTOR VOLUME REPORT

EXHIBIT D – SAMPLE CONTRACTOR PERFORMANCE EVALUATION

EXHIBIT E – IRS REQUIREMENT

1. PARTIES

This Contract (hereinafter called “Price Agreement”) is entered into by and between the State of Colorado, acting by and through the Department of Personnel & Administration, State Purchasing Office (hereinafter called the “State” or “SPO”), and Insert Legal Name of Contractor (hereinafter called Contractor), for the procurement of Insert Category Name. The Contractor and the State hereby agree to the following terms and conditions.

2 Rev 06/02/15

2. EFFECTIVE DATE AND NOTICE OF NON-LIABILITY

This Price Agreement shall not be effective or enforceable until the date on which it is approved and signed by the Colorado State Controller or designee (hereinafter called the “Effective Date”). Neither the State nor any Ordering Entity, as defined herein, shall be liable to pay or reimburse Contractor for any performance hereunder including, but not limited to, costs or expenses incurred by Contractor, or be bound by any provision hereof, prior to the Effective Date.

3. RECITALS

A. Authority, Appropriation, and Approval. Authority to enter into this Price Agreement exists in CRS §24-102-202, and Colorado Procurement Code R-24-102-202-01. Required approvals, clearance and coordination have been accomplished from and with appropriate agencies of the State.

B. Consideration. The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Price Agreement.

C. Purpose

i. Contractor is authorized to provide Insert Category Name under this Price Agreement. This Price Agreement authorizes the purchase of such Goods and/or Services, in accordance with the terms of Orders issued pursuant to this Price Agreement by eligible Ordering Entities within the State of Colorado. The State Purchasing Office has entered into this Price Agreement pursuant to the award issued to Contractor as a result of Solicitation # Insert IFB/RFP Number to establish the price and terms for purchase of Goods and/or Services within the State of Colorado by State Agencies and Other State Departments (SA), Institutions of Higher Education (IHE), Political Subdivisions (PS), eligible Non-Profit Organizations (NPO), and other eligible entities (including cooperatives, collectively referred to as the “Ordering Entities,” defined in §4, Definitions, below.).

ii. Except with respect to any Orders placed under this Price Agreement, the State Department of Personnel & Administration shall not be liable to the Contractor as a signatory to this Price Agreement for any breach by an Ordering Entity of any payment or other obligation herein or under any Order or Contract for Goods and/or Services under this Price Agreement, and the State shall not be liable to Contractor for any payment or other obligation owed by any Political Subdivision or Non-Profit Organization or other non-State Ordering Entity.

D. Participation. Use of this Price Agreement, by Ordering Entities that are authorized by Colorado statutes to use this Price Agreement, is subject to the prior approval of the State Purchasing Office. Determination of eligibility for participation in this Price Agreement is solely within the discretion of the State Purchasing Office.

E. References. All references in this Price Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are contained herein or incorporated as a part hereof, unless otherwise noted.

4. DEFINITIONS

Capitalized terms used herein shall be construed and interpreted as follows:

A. Ceiling Pricing. “Ceiling Pricing” means the maximum price Contractor is allowed to charge for Goods and/or Services.

B. Chief Procurement Official. “Chief Procurement Official” shall mean the Director of the State Purchasing Office, Colorado Department of Personnel & Administration.

C. Confidential Information. “Confidential Information” means information, data, records, and documentary materials belonging to the State or an Ordering Entity regardless of physical form or characteristics, including but not limited to any non-public State or Ordering Entity Records, sensitive State or Ordering Entity data, protected State or Ordering Entity data, Comment [nk1]: Additional definitions may be added for terms that are necessary in a particular contract. Definitions should be added in alphabetical order. Delete any definitions that are not applicable.

3 Rev 06/02/15

State or Ordering Entity personnel records, personally identifiable information (“PII”), and other information or data concerning individuals, which has been communicated, furnished or disclosed by the State or Ordering Entity to Contractor. Notwithstanding the foregoing, Confidential Information shall not include State Data and Records or Ordering Entity Records.

D. Contract. “Contract” is synonymous with “Price Agreement” and means this Price Agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Contract, and any future amendments, modifying agreements, exhibits, attachments or references incorporated herein pursuant to State law, Fiscal Rules, and State Controller Policies.

E. Contract Funds. “Contract Funds” means funds available for payment by the State to Contractor pursuant to this Price Agreement for Orders placed by Ordering Entities.

F. Contractor. “Contractor means any organization or individual that seeks to provide, or is already providing, Goods and/or Services.

G. Deliverable. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible object that is produced as a result of Contractor’s Work that is intended to be delivered to the Ordering Entity by Contractor. Examples of Deliverable’s include, but are not limited to, report(s), document(s), server upgrade(s), software license(s), and may be composed of multiple smaller Deliverable’s.

H. Environmentally Preferable. “Environmentally Preferable” shall mean products or Services that have a lesser or reduced adverse effect on human health and the environment when compared with competing products or Services that serve the same purpose (CRS §24-103-207.5, May 21, 2007).

I. Evaluation. “Evaluation” means the process of examining Contractor’s Work and rating it based on criteria established in §6 (Statement of Work) and §18 (Statewide Contract Management System).

J. Exhibits and other Attachments. The following documents are attached hereto and incorporated by reference herein: Exhibit A (Sample Option Letter), Exhibit B (Prices and Rates), Exhibit C (Sample Summary Contractor Volume Report), Exhibit D (Sample Contractor Performance Evaluation), Exhibit E (IRS Requirement) and Exhibit F (Insert Name of Contractor's Lease Document).

K. Fiscal Year. “Fiscal Year” means the State’s Fiscal Year, which begins on July 1 of each calendar year and ends on June 30 of the following calendar year.

L. Goods. “Goods” means tangible material acquired, produced, or delivered by Contractor either separately or in conjunction with Services the Contractor renders.

M. Institution of Higher Education (IHE). “Institution of Higher Education” means a university or college located in the State of Colorado, which is supported by the State. Only those IHE’s subject to the State Procurement Code are State Agencies for the purposes of this Price Agreement.

N. MBE/WBE/SBE/DBE/VBE. “MBE/WBE/SBE/DBE/VBE” means minority-owned, woman owned, small, disadvantaged, and veteran-owned business enterprises certified as such by the State of Colorado.

O. Non-Profit Organization (NPO). “Non-Profit Organization” means entities that have 501(c)(3) status under the United States of America’s Internal Revenue Code, are recognized as “in good standing” by the Colorado Secretary of State office, and receive funding from federal, state, or local governmental sources with which to make purchases from State Price Agreement vendors. A NPO eligible to utilize this Price Agreement must submit an annual application and be approved by the State Purchasing Office to make purchases from State Price Agreement vendors.

P. Order. “Order” means any Purchase Order, Contract, or other authorized commitment voucher used by an Ordering Entity to order the Goods or Services priced in the Price

Comment [nk2]: Add more Exhibits if necessary, and delete any that are not applicable.

4 Rev 06/02/15

Agreement. An Order amended consistent with the requirements of any Ordering Entity shall also be governed by the same terms and conditions presented in this Price Agreement.

Q. Ordering Entity. “Ordering Entity” means a Colorado State Agency in the Executive Branch of Colorado State government; an Other State Department; an Institution of Higher Education, a Political Subdivision, an eligible Non-Profit Organization, and any other entity (including a cooperative) authorized by Colorado statutes and the SPO to place Orders with Contractor.

R. Ordering Entity Records. “Ordering Entity Records” means information, data, records, and documentary materials belonging to an Ordering Entity regardless of physical form or characteristics, including but not limited to any public Ordering Entity Records, non-sensitive Ordering Entity data, and other information or data concerning individuals that is not deemed confidential but nevertheless belongs to an Ordering Entity, which has been communicated, furnished or disclosed by an Ordering Entity to Contractor which (i) is subject to disclosure pursuant to the Colorado Open Records Act, CRS §24-72-200.1, et seq.; (ii) is already known to Contractor without restrictions at the time of its disclosure by Contractor; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Contractor to an Ordering Entity; (iv) is disclosed to Contractor, without confidentiality obligations, by a third Party who has the right to disclose such information; or

(v) was independently developed without reliance on any Confidential Information.

S. Other State Departments. “Other State Departments” means the Department of Law, the State Treasurer, the Judicial Department, the Secretary of State, the State Legislature and any other State Ordering Entities that are not governed by the State Procurement Code.

T. Party or Parties. “Party” means the State or Contractor, and “Parties” means both the State and Contractor.

U. Political Subdivision (PS). “Political Subdivision” means any non-State governmental entity such as cities, towns, counties, and special districts, such as school, fire, water, transportation, governmental entities, operating within the State of Colorado.

V. Price Agreement. “Price Agreement” is synonymous with “Contract” and means this agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Price Agreement, and any future amendments, modifying agreements, exhibits, attachments or references incorporated herein pursuant to State law, Fiscal Rules, and State Controller policies.

W. Review. “Review” means examining Contractor’s Work to ensure that it is adequate, accurate, correct and in accordance with the criteria established in §6 (Statement of Work), §18 (Statewide Contract Management System), and in any Order.

X. Services. “Services” means the labor required to be performed by Contractor pursuant to this Price Agreement and an Order.

Y. State Agency/Agencies. “State Agency” and “State Agencies” means the departments, divisions, commissions, boards, and institutions in the executive branch of Colorado State government (which do not include the Judicial Department, Department of Law, the Secretary of State, the State Treasurer, the State Legislature, State-supported Institutions of Higher Education which are not governed by the State Procurement Code; Colorado Political Subdivisions or Non-Profit Organizations, or other non-State Ordering Entities).

Z. State Data and Records. “State Data and Records” means information, data, records, and documentary materials belonging to the State regardless of physical form or characteristics, including but not limited to any public State records, non-sensitive State data, and other information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to the Colorado Open Records Act, CRS §24-72-200.1, et seq.; (ii) is already known to Contractor without restrictions at the time of its disclosure by Contractor; (iii) is or subsequently becomes publicly available

5 Rev 06/02/15 without breach of any obligation owed by Contractor to the State; (iv) is disclosed to Contractor, without confidentiality obligations, by a third Party who has the right to disclose such information; or (v) was independently developed without reliance on any Confidential Information.

AA. State Ordering Entities. “State Ordering Entities” means State Agencies, Institutions of Higher Education and Other State Departments.

BB. State Ordering Entities Subject to the Procurement Code. “State Ordering Entities Subject to the Procurement Code” means State Agencies, Other State Departments and those Institutions of Higher Education that are not exempt from the jurisdiction of the Colorado Procurement Code (CRS §24-102-202 et seq.) and that are required to purchase Goods and Services from State Price Agreements designated by the SPO.

CC. State Purchasing Office or SPO. “State Purchasing Office” or “SPO” means the Colorado State Purchasing Office, a unit of the Colorado Department of Personnel & Administration.

DD. Subcontractor. “Subcontractor” means, in the event subcontracting by the Contractor is authorized, a third-Party, if any, engaged by Contractor to aid in performance of its obligations under this Price Agreement.

EE. Work. “Work” means the Goods and associated Services Contractor is required to provide to fulfill its obligations under this Price Agreement and each Order.

FF. Work Product. “Work Product” means the tangible or intangible results of Contractor’s Work, including but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or Work Product of any type, including drafts, prepared, developed, originated or reduced to practice by Contractor under this Contract.

5. TERM

A. Initial Term-Work Commencement. The Parties’ respective performances under this Price Agreement shall commence on the later of either the Effective Date or Insert Date (ex. July 1, 2014). This Price Agreement shall terminate on Insert Date (ex. July 1, 2016), unless terminated sooner, as specified in §15 (Remedies), or extended further as specified in §5.C below.

B. Order Terms. Orders shall be placed consistent with the terms of this Price Agreement during the term specified above. Orders must be placed pursuant to this Price Agreement prior to the termination date hereof, but may have a delivery date or performance period up to one-hundred and twenty (120) days past the then-current termination date of this Price Agreement. Notwithstanding the expiration or termination of this Price Agreement, the Contractor agrees to perform in accordance with the terms of any Order outstanding at the time of such expiration or termination. Price Agreement provisions required to implement and govern Order performance shall survive Price Agreement termination until all outstanding Orders have been completed or terminated in accordance with this Price Agreement.

C. State’s Option to Extend

i. The State shall have the option to unilaterally require continued performance of the Contractor for a period of up to four (4), one (1) year additional terms, at the same rates and same terms specified in the Price Agreement. If the State exercises its option(s), it shall provide written notice to Contractor prior to the end of the current Contract term in a form substantially equivalent to Exhibit A (Sample Option Letter).

If exercised, the provisions of the Option Letter shall become part of and be incorporated into, this Price Agreement. The total duration of this Price Agreement, including the exercise of any options under this clause, shall not exceed five (5) years, unless authorized in writing by the State Purchasing Director.

ii. Continuation of this Price Agreement beyond the initial term is a State option and not a right of the Contractor. The State shall exercise this option only when such continuation is clearly in the best interest of the State.

Comment [nk3]: 5 years is maximum allowable, including the initial term.

6 Rev 06/02/15

iii. The State, at its sole discretion, upon written notice to Contractor as provided in §16 (Notices and Representatives), may unilaterally extend the term of this Price Agreement for a period not to exceed two (2) months if the Parties are negotiating a replacement Price Agreement (and not merely seeking a term extension) at or near the end of any initial term or renewal term. The provisions of this Price Agreement, when such notice is given, including, but not limited to, prices, rates, and delivery requirements, shall remain in effect during the two (2) month extension period. The two (2) month extension shall immediately terminate if and when a replacement Price Agreement is approved and signed by the Colorado State Controller.

6. STATEMENT OF WORK

A. Completion. Contractor shall complete the Work and its other obligations as described herein and in accordance with any Order issued by an Ordering Entity. The State shall not be liable to compensate Contractor for any Work performed on an Order placed prior to the Effective Date or after the termination of this Price Agreement. Further, the State shall not be held liable to compensate Contractor for any Work performed on an Order placed by a non-State Ordering Entity.

B. Employees. All persons employed by Contractor or Subcontractor’s to perform Work under this Price Agreement shall be Contractor’s or Subcontractor’s employee(s) for all purposes hereunder and shall not be employees of the State for any purpose as a result of this Price Agreement.

C. Pricing and Price Changes. The SPO reserves the right to publish any pricing (such as Exhibit B Prices and Rates), on the State Price Agreement web location, for use by Ordering Entities.

i. Price Changes. Contractor’s pricing may not increase for the first twelve (12) months of this Price Agreement. Contractor may request to amend pricing once during each twelve (12) month period thereafter. Contractor shall request any price increase in writing to the SPO at least sixty (60) days prior to the anticipated increase, and such request shall justify the increase by describing verifiable Contractor cost increases.

Such requests shall contain complete documentation, and cost justifications may be based on Producer Price Index, Consumer Price Index, or similar industry pricing guides. Such price changes shall become effective only upon approval by the SPO.

However, Contractor shall make any price decreases immediately applicable to Ordering Entities placing Orders after the date of Contractor’s request to change pricing.

ii. If requested price increases exceed what the SPO considers to be reasonable, normal or expected, the State reserves the right to solicit additional suppliers and to purchase Goods and/or Services from other Contractors as a result of such solicitation. Failure to obtain the State’s approval of price increases shall void such price increases. If Contractor increases its rates to an Ordering Entity without obtaining SPO approval, this Price Agreement may be cancelled, following proper notice for breach under §14 (Breach).

iii. Pricing that is listed in the State Price Agreement is Ceiling Pricing. Contractor may offer lower pricing to Ordering Entities; likewise, Ordering Entities shall have the option to negotiate lower pricing with Contractor.

iv. Renewal of Agreement. In the event of renewal of this Price Agreement, or any amendment of its terms (including pricing), unless otherwise specified in an Order, the Contractor shall provide Goods and/or Services in accordance with the terms of the Price Agreement current at the time of an Order, and invoice the Ordering Entity at the pricing in effect at the time the Order was placed.

D. Performance. Contractor shall become familiar with individual Ordering Entity rules and regulations, as identified by Ordering Entities, regarding procurement and fiscal rules, delivery requirements, and other relevant procedures, and shall comply with any Executive

Comment [nk4]: The SOW can be inserted here if an Exhibit is not desired. If the SOW is lengthy, it is recommended that an Exhibit A be used, and the appropriate changes to the other Exhibit references be updated.

Comment [nk5]: Change to applicable Exhibit reference.

7 Rev 06/02/15

Orders of the Governor of the State, and any other judicial or administrative decisions regarding the State of Colorado.

i. Customer Service Representatives. Contractor shall provide each Ordering Entity utilizing the Price Agreement with contact information for customer service representatives assigned to handle questions and resolve all problems that arise with any Orders. Service representatives shall be available, at a minimum, from 8:00 a.m.

to 5:00 p.m., Mountain Time, Monday through Friday (State holidays excepted).

Contractor shall also provide a list of customer service contacts to the State’s principal representative identified in §16 (Notices and Representatives) or successor, and shall provide notice when any updates are made to this list. Customer service representatives shall be available by phone (via local or toll free number), fax, or email during the required times. Contractor shall also provide an emergency number and contact for after hours use. All customer service representatives shall have online access to account information and be able to provide a timely response to inquiries concerning the status of Orders (shipped or pending), delivery, back- Orders, Price Agreement pricing, category discounts, product availability, product information, account and billing questions, and Price Agreement compliance requirements.

ii. Subcontracting. Contractor may subcontract to Subcontractors the performance of Services and supply of Goods, however Contractor shall remain the primary Contractor fully accountable to the State for ensuring that its Subcontractors comply with the terms of this Price Agreement.

iii. PERA. State Ordering Entities are Colorado PERA affiliated employers. In the event billable personal Services are performed for State Ordering Entities by the Contractor, and pursuant to CRS §24-51-1101(2), the Contractor must notify in writing (email is acceptable) the State Ordering Entity’s representative listed on the Order within fifteen (15) calendar days from the date of receipt of any Order if the Services to be provided are being or will be performed by a PERA retiree (as defined at CRS §24- 51-101).

iv. Resolution of Performance Issues. Ordering Entities have the authority and discretion to resolve performance issues with Contractor. Contractor is required to first meet with the Ordering Entity and its purchasing office to resolve issues once an Ordering Entity has given notice of a performance issue. If resolution cannot be reached, then Contractor and the Ordering Entity should contact the SPO in writing to request assistance in reaching resolution to the satisfaction of all Parties involved.

Contractor’s failure to provide satisfactory performance after receiving notice of a performance issue may be sufficient cause for Ordering Entities to give notice of breach to Contractor and to terminate Orders they have placed. Contractor shall convey any notice of breach it receives to the SPO via email within five (5) business days of receipt thereof.

v. Marketing Notices. Prior to any distribution, Contractor must submit to SPO for advance written approval all Contractor marketing notices and literature intended for distribution to Ordering Entities utilizing the Price Agreement. Maintenance of mailing lists and the production and distribution of pre-approved marketing notices and literature is the Contractor’s responsibility and shall be at Contractor’s expense.

vi. HIPAA

a) The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Public Law 104-191 governs the exchange of certain health data and the privacy and security of certain health information. All Work performed by Contractor and any Subcontractors must be in compliance with the Health Insurance Portability and Accountability Act of 1996.

8 Rev 06/02/15

b) The Ordering Entity is responsible for notifying the Contractor in writing when placing a HIPAA-related Order. HIPAA Standards/Final Rules are posted on the Department of Health and Human Services (DHHS) website.

vii. Training. Contractor shall provide to Ordering Entities at no additional cost, all necessary training on aspects of ordering, online ordering, product delivery, product returns, and customer service processes. Further, Contractor shall provide Ordering Entities, as applicable, training and information on the use of products, including their energy efficiency; new features; opportunities for manufacturer/certified set up and training; green “EPP”; and other Services that are offered or available.

viii. Procurement Card. Contractor shall have the capability to accept procurement “credit” cards. Contractor shall have industry standard security protocol including storage of data, ordering security, and data file security.

ix. Contract Management. Contractor shall provide Contract management and sales support to the State and to each Ordering Entity. Contractor shall designate a representative(s) who shall have primary responsibility for management of this Price Agreement. Contractor shall notify the State’s principal representative identified in §16 (Notices and Representatives) or successor of any change in designated representative(s).

E. Orders. Ordering Entities shall place Orders with Contractor for Goods and/or Services on an "as-needed" basis. Orders shall be placed consistent with the terms of this Price Agreement during the term specified in §5 (Term). Each Ordering Entity shall identify and utilize its own appropriate purchasing procedure and documentation. Contractor shall not begin Work without a valid Order number. State Agencies, State-funded Institutions of Higher Education and Other State Departments shall ensure that no Orders are placed before a valid Purchase Order or Contract is in place and shall comply with the purchasing requirements described in State Fiscal Rule 2-2-4 (Orders in excess of $100,000 shall utilize a State Contract and encumbrance of Contract Funds). The State of Colorado shall not be liable for payment of Orders placed by non-State Ordering Entities and Contractor shall not seek compensation from the State of Colorado for such Orders. Contractor shall furnish all communications concerning administration of Orders solely to the purchasing officer within the relevant Ordering Entity’s purchasing office, or to such other individual identified in writing in the Order. All Orders and Contractor invoices for Goods and/or Services issued pursuant to this Price Agreement, at a minimum, shall include:

i. Order date, when the Order is being placed by the Ordering Entity,

ii. A brief description of the Goods and/or Services being purchased, including line item descriptions, item numbers, quantity ordered; quantity to be included in shipments, unit costs, rates (when applicable), and totals,

iii. The location (delivery address) and requested time of delivery or performance,

iv. The billing address,

v. The complete name of the Ordering Entity, including the name, phone number, and address of the Ordering Entity's purchasing officer or representative, and

vi. The State of Colorado Price Agreement Number: Insert CORE Doc ID #.

F. Delivery. Unless otherwise agreed in writing, any Goods and/or Services ordered pursuant to this Price Agreement shall be delivered in a good, working, undamaged condition, freight on board (F.O.B.) destination to the location specified in the Order. The Ordering Entity shall not be deemed to have accepted any Goods and/or Services until such have been inspected in accordance with Order specifications and are accepted by the Ordering Entity.

Title to Goods shall pass to the Ordering Entity upon acceptance of delivered items.

G. Forced Substitutions. Forced substitutions are not allowed. If an ordered Good is out of stock, the Contractor shall notify in writing (email is acceptable) the Ordering Entity and request prior approval before substituting for the out-of-stock item. Contractor’s request to substitute must explain how the substituted Good compares with the out-of-stock item. If a

9 Rev 06/02/15

Good is discontinued, Contractor must provide a written substitution policy and notify the State’s principal representative identified in §16 (Notices and Representatives) or successor of the policy and change. Any substitution offered must remain within the scope of this Price Agreement.

H. Termination of an Order by Ordering Entities. An Ordering Entity through its designated procurement officer or other authorized representative, may terminate an Order for default, which shall not terminate this Price Agreement without additional notice of termination from the State. Such termination shall be governed by this §6.H.

i. Default

a) If Contractor refuses or fails to perform any of its obligations under the provisions of an Order, with such diligence as will ensure its completion within the time specified in the Order, the Ordering Entity’s procurement officer may notify Contractor in writing of the non-performance.

b) If such breach is not corrected within thirty (30) days of issuance of notice, or if, due to Contractor’s actions or inaction’s, performance would be of no value to the Ordering Entity, the procurement officer may terminate Contractor's right to proceed with the Order or such part of the Order as to which there has been such delay or a failure to properly perform. Contractor shall continue performance of the Order to the extent it is not terminated.

ii. Contractor’s Duties. Notwithstanding termination of the Order, and subject to any directions from the procurement officer, Contractor shall take timely, reasonable, and necessary action to protect and preserve property in the possession of Contractor in which the Ordering Entity has an interest (if any).

iii. Compensation. The Ordering Entity may withhold amounts due to Contractor as the procurement officer deems necessary to protect the Ordering Entity against loss because of outstanding liens or claims of former lien holders and to reimburse the Ordering Entity for the extra costs incurred in procuring substitute Goods and/or Services.

iv. Erroneous Termination for Default of the State Ordering Entity. If after notice of termination of Contractor's right to proceed under the provisions of this §6.H, it is determined for any reason that Contractor was not in breach under the provisions of this section, or that the delay was excusable, the rights and obligations of the State Ordering Entity and the Contractor shall be the same as if the notice of termination had been issued pursuant to termination for the public interest §6.H.v.

v. Termination of an Order for the Public Interest. Unless otherwise agreed, a State Ordering Entity procurement officer, when the interests of the State, so require, may terminate any Order, in whole or in part, for the public interest of the State, provided only that such termination will not relieve the Ordering Entity from its obligations with respect to any Goods and/or Services already delivered to or used by such Ordering Entity. The procurement officer shall give at least thirty (30) days prior written notice of the termination to Contractor specifying the part of the Order terminated and when termination becomes effective. Termination for the public interest of all or any portion of an Order shall not constitute a breach of this Price Agreement by an Ordering Entity or the State.

a) Contractor’s Obligations. Contractor shall incur no further obligations in connection with the terminated Order on the date set in the notice of termination.

Contractor will stop Work to the extent specified. Contractor must still complete and deliver to the State Ordering Entity the portion of the Order not terminated (if any) by the notice of termination.

b) Compensation. Upon termination of an Order by a State Ordering Entity, Contractor shall be entitled to compensation as follows:

10 Rev 06/02/15

1. Contractor shall submit a termination claim specifying the amounts due because of the termination for the public interest together with cost or pricing data bearing on such claim.

2. The Ordering Entity shall pay Contractor an amount which bears the same ratio to the total reimbursement under the Order as Contractor’s obligations that were satisfactorily performed bear to the total obligations set forth in the Order, less payments previously made. Additionally, if a terminated Order is less than sixty (60) percent completed, the State Ordering Entity may reimburse Contractor for a portion of actual out-of-pocket expenses (not otherwise reimbursed under such Order) incurred by Contractor which are directly attributable to the uncompleted portion of Contractor’s obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Contractor under such Order.

I. Internet Ordering, E-Commerce and Web Catalog, Electronic Data Storage, and Catalogs The Contract shall be responsible for the maintenance of its internet, e-commerce and web catalog, electronic data storage, and catalogs and the associated expense.

i. Internet Ordering. As applicable, Contractor shall provide internet catalogs accessible to all Ordering Entities, provide a URL link and Colorado “splash” page or landing page with link to the SPO State Price Agreement web location, designate market basket items in its on-line catalogs for ease of ordering, identify a symbol or marking used to identify market basket items, and designate all Environmental Preferable Products (EPP) in their on-line catalogs and identify the symbol used to mark these EPP Goods.

ii. Electronic Data Storage. Contractor must have the capability of electronic data storage and a back-up system in the unlikely event that the main information storehouse becomes unusable. Contractor shall have industry standard security protocol including storage of data, ordering security, and data file security.

iii. Catalogs. Contractor must provide paper and/or computer media catalogs to any Ordering Entity, upon request for the duration of this Contract.

7. TAXES and PAYMENTS TO CONTRACTOR

A. Taxes and Tax Exemption Status

i. The State and State Agencies are exempt from all federal excise taxes under the US Internal Revenue Code (IRC) Chapter 32 (Certificate of Registry No. 84-730123K) and from all Colorado State and local government sales and use taxes under CRS §39-26-101 and 201 et seq. Such exemptions apply when Goods are purchased or Services are rendered to benefit the State. Contractor is hereby notified that when products or Services are purchased for the benefit of State Ordering Entities, some Political Subdivisions (e.g., City and County of Denver) may require payment of sales or use taxes even though the product or service is provided to the State or a State Ordering Entity. These sales or use taxes will not be reimbursed by the State Ordering Entity, nor will any prices or rates in this Contract be adjusted because of such taxes.

ii. For the purpose of this Price Agreement, the SPO’s FEIN is 84-0644739, however different Ordering Entities may have their own Federal Employer Identification Numbers. The State's tax exemption number is 98-02565-0000; however, different Ordering Entities may have their own tax exemption numbers as well. The Contractor shall be responsible for requesting and obtaining each Ordering Entity’s FEIN and tax exemption number and documentation at the time an Order is placed or upon Contractor’s request. The State is not liable for any taxes assessed against Contractor for franchise or licensing, or related to the income of the Contractor. No taxes of any kind shall be charged to the State.

11 Rev 06/02/15

B. Payments to Contractor

i. The Ordering Entity issuing a valid Order shall be bound by the terms and conditions of this Price Agreement, including, without limitation, the obligation to pay Contractor for Goods and/or Services in accordance with the provisions of this §7, using the methods set forth below.

ii. The State of Colorado shall not be liable for payment of Orders placed by a non-State Ordering Entity, nor shall the Contractor seek compensation from the State of Colorado for such Orders.

C. Invoicing/Billing

i. Invoices

a) Contractor shall have an accounting and billing system and provide Ordering Entities with an invoice when purchases are made. Contractor shall invoice Ordering Entities for Goods and/or Services provided to and accepted by the Ordering Entity, at the prices listed in this Price Agreement, as amended. A statement showing transactions for a period is not an invoice, though the Contractor may provide such documents as information to the Ordering Entity on a regular basis or upon the request of an Ordering Entity. Unless otherwise specified in the Order, Ordering Entities will pay Contractor based on submission of invoices to the Ordering Entity that detail the dates, quantity, and description of Goods delivered and/or Services performed, the billing rate, Order number, and the Price Agreement number.

b) The terms and conditions on any invoice, statement, Contractor time sheet, or other form (e.g. Contractor website and/or online terms), including, but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the State or any Ordering Entity. The Contractor’s and Ordering Entities’ rights and obligations shall be governed solely by the terms and conditions of this Price Agreement. Any Ordering Entity employee’s signature on Contractor’s forms shall be effective only to establish receipt of Goods or Services. The Contractor shall provide a toll free number for Ordering Entity inquiries on billing problems.

ii. Remittance. Ordering Entities will remit payments by mail or via State procurement credit cards or as otherwise agreed by Contractor and such Ordering Entities. The Ordering Entities shall send payments to Contractor at the address shown on the invoice if it is the same address recorded in this Price Agreement or subsequently provided to SPO in writing. Contractor must provide written notice (email is acceptable) of a remittance change to the SPO within five (5) business days of a change.

iii. Payment by State Ordering Entities; Interest. Contractor shall allow State Ordering Entities a minimum of thirty (30) days after receipt of an invoice to pay for products or Services provided by Contractor. State law and regulations provide that State payments made within forty-five (45) days are not considered delinquent, and unless otherwise agreed, State Ordering Entities will pay interest on any unpaid balance beginning on the 46th day at the rate of one (1) percent per month on any unpaid balance until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are the subject of a good faith dispute regarding the obligation to pay all or a portion of the liability. Contractor shall invoice State Ordering Entities separately for accrued interest on delinquent amounts due. The billing shall reference the delinquent payment, the number of day’s interest to be paid, and the applicable interest date. (§24-30-202(24), CRS, as amended.)

iv. Payment by Colorado Political Subdivisions, Non-Profit Organizations, or Other Non-State Eligible Entities. For Orders placed by non-State Ordering Entities (Political Subdivisions, Non-Profit Organizations, or other non-State eligible entities), terms for payment shall be specified in the written Orders. Contractor shall invoice

12 Rev 06/02/15 non-State Ordering Entities directly. State Ordering Entities generally remit payment in a timely manner within forty-five (45) days of invoice; however, it is the Contractor’s responsibility to confirm all payment terms with each non-State Ordering Entity at the time an Order is placed.

v. Maximum Amount. State Ordering Entities shall place Orders with the Contractor using a purchase or delivery Order, or state Contract as required by State law, regulations, and the State Fiscal Rules. All non-State Ordering Entities shall place Orders with a Purchase Order or other contracting document acceptable to the Contractor. The maximum amount payable under this Price Agreement shall be determined by the amount of Orders placed and other contracting documents. No Contract Funds will be encumbered by the State Department of Personnel & Administration against this Price Agreement unless an Order is placed by that agency. Ordering Entities shall state the maximum amount available for the purchase of Goods and/or Services under each Order.

vi. Advance, Interim and Final Payments. Any advance payment allowed under any Order issued by a State Agency against this Price Agreement shall comply with State Fiscal Rules and be made in accordance with the provisions of this Price Agreement and such Order. Non-State Ordering Entities may have their own fiscal procedures regarding advance payments, which may be agreed upon in writing between the non- State Ordering Entity and the Contractor.

vii. Available Funds-Contingency-Termination

a) State Ordering Entities are prohibited by law from making commitments beyond the term of the State’s current Fiscal Year. Therefore, Contractor’s compensation beyond the State’s current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions, §21 hereof. If federal funds are used to pay for Work ordered by State Ordering Entities under this Price Agreement, completely or in part, the State’s performance hereunder is contingent upon the continued availability of such Contract Funds. State Ordering Entities shall only make payments for Work ordered by a State Ordering Entity under this Price Agreement from available State Ordering Entity Contract Funds that have been encumbered for that Work, and the State Ordering Entity’s liability for such payments shall be limited to the amount remaining of such encumbered Contract Funds. If State or federal funds are not appropriated, or otherwise become unavailable to pay for any Order placed by a State Ordering Entity under this Price Agreement, the State Ordering Entity may terminate the Order immediately, in whole or in part, without further liability in accordance with the provisions hereof.

b) A Political Subdivision Ordering Entity may have its own fiscal requirements regarding available funds for payment of Orders, which may be agreed upon in writing between the non-State Ordering Entity and the Contractor.

viii. Erroneous Payments

a) At the State’s sole discretion, State Ordering Entity payments made to the Contractor in error for any reason, including, but not limited to, omission, error, fraud, or defalcation, over-payments or improper payments, and un-expended or excess funds received by Contractor, may be recovered from Contractor by deduction (set-off) from subsequent payments for purchases under this Price Agreement or other Contracts, grants or agreements between the State and Contractor or by other appropriate methods, or collected as a debt due to the State. Such funds shall not be paid to any person or entity other than the State.

b) Non-State Ordering Entities may have their own fiscal requirements regarding erroneous payments, which may be agreed upon in writing between the non-State Ordering Entity and the Contractor.

13 Rev 06/02/15

ix. Discount/Delinquency Period. Any applicable cash discount period or delinquency period shall start from the date of receipt of an acceptable invoice, or from the date of receipt of acceptable Goods or Services at the specified destination by an authorized Ordering Entity representative; whichever is later.

8. REPORTING – NOTIFICATION

Reports required under this §8 shall be in accordance with the procedures of and in such form as prescribed by the State, as applicable. Contractor’s failure to provide these reports shall constitute cause for cancellation of this Price Agreement and may disqualify Contractor from future awards by the State.

A. Performance, Progress, Personnel, and Funds. If and as required under §18 (Statewide Contract Management System), State Ordering Entities shall submit a report to the Contractor upon expiration or termination of their Order(s), which shall contain an Evaluation and Review of Contractor’s performance and the final status of Contractor’s obligation hereunder, in a form substantially equivalent to Exhibit D (Sample Contractor Performance Evaluation).

B. Volume Reports. The State intends to use the centralized method of tracking volume.

Contractor shall furnish the SPO sales/volume reports thirty (30) calendar days after the end of each calendar quarter. The quarter periods are: January 1 to March 31, April 1 to June 30, July 1 to September 30, and October 1 to December 31, of any given year.

i. Contractor must provide SPO a report detailing its total sales to each Ordering Entity within the State, each reporting period. The Volume detail report, for the quarter being reported, shall contain the following: the Ordering Entity name, the date of each sale, the items purchased, quantity, unit price, extended cost (quantity x unit price), list price per unit, extended list cost (quantity x list price /unit), and savings (extended list cost minus extended cost). Additionally, Contractor must provide a summarized report in a form equivalent to Exhibit C (Sample Summary Contractor Volume Report) attached hereto and incorporated herein, and in a format requested by the SPO such as an Excel spreadsheet. Reports shall be sent via email to the Primary Contact identified in §16 (Notices and Representatives) or assigned successor. Specifically, the reports must include:

a) Total Sales Dollars. Total spent by each Ordering Entity every quarter.

b) Total Regular (List) Cost of Total Sales. Total of the extended list cost by each Ordering Entity.

c) Total Estimated Cost Savings. Total estimated cost savings (extended list cost minus total sales = savings) by each Ordering Entity.

d) Total Paid by Procurement Card. Total payments made by a procurement “credit” card by each Ordering Entity.

e) Total Green Sales. Total Green sales, meaning sale of Environmentally Preferable Products, by each Ordering Entity. (Environmentally Preferable Products, including applicable discount savings, are defined in the State’s Environmentally Preferable Purchasing Policy, as amended. In most cases, “Green” products have been third Party registered or certified as such by EPA, NFP, Energy Star, LEED, etc.)

ii. In the event a quarterly report submitted by the Contractor contains discrepancies, the Contractor, upon notification from the State, shall make necessary modifications, which may include adjustments to the Ordering Entity’s account profile, and resubmit reports in a timely manner.

C. Additional Reports

i. Contractor also shall provide a comprehensive sales history as of the anniversary each year of this Price Agreement or within thirty (30) calendar days of request from the SPO. The comprehensive sales reports shall set forth, at a minimum, the name of

14 Rev 06/02/15 each Ordering Entity, the Orders placed, the quantity of Goods and/or Services purchased, a description of the Goods and/or Services, the unit price or hourly rate charged, the extended dollar amount spent, and the overall total amount spent for the period.

ii. If requested, Contractor shall also provide detailed reports of the type described above to any Ordering Entity relating to that Ordering Entity, and shall provide any additional reporting as requested.

D. Performance Outside the State of Colorado and/or the United States [In the event of a State Ordering Entity Subject to the Procurement Code include any federal Contract Funds, the State Ordering Entity shall notify the Contractor thereof and this clause will not be applicable]. Following the Effective Date, Contractor shall provide written notice to the State, in accordance with §16 (Notices and Representatives), within twenty

(20) days of the earlier to occur of Contractor’s decision to perform, or its execution of an agreement with a Subcontractor to perform, Services for State…