2. RFP Att A Sample Contract.doc

CLATSOP COMMUNITY COLLEGE

CONTRACT FOR THE

PURCHASE OF GOODS AND SERVICES

(“Contract”)

This Contract is between Clatsop Community College (“College”) and (Insert Contractor’s name here; if Contractor is a corporation, add the state of incorporation, e.g.: ACME Widget Company, a Delaware corporation) ("Contractor"). This Contract is effective on the date is has been signed by all parties and all required College approvals have been obtained. This Contract expires on the date all warranties have expired or the date Contractor has completed delivery of all Goods and Services in accordance with the requirements of this Contract, as determined by College.

Contractor agrees to sell, and College agrees to purchase, Goods and Services for the benefit of College subject to the terms and conditions in Exhibit A.

RECITAL

This Contract is for the purchase and sale of the following: [BRIEFLY DESCRIBE THE NATURE OF THE GOODS AND SERVICES BEING PURCHASED.] This Contract is for the purchase and sale of the following:

· One (1) Adult Male Patient Simulator, wireless high fidelity

· ____ Year Service Plan for adult simulator

· One (1) Newborn Patient Simulator, wireless high fidelity

· ____ Year Service Plan for newborn simulator

· Virtual monitor licenses for simulators

· Touch screen simulated patient monitor and control tablets (optional)

· Installation and training, on-site, ____ hrs (__-8 hour days)

1. DEFINITIONS.

A. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from Services.

B. “Goods” means the goods specified in Section 2.

C. “IRS” means the Internal Revenue Service.

D. “Open Source Elements” means any Work Product subject to any open source initiative certified license, including Work Product based upon any open source initiative certified licensed work.

E. "Services" means the services, if any, that are incidental to the purchase of Goods and that Contractor is required to perform under Section 2.

F. "Specifications" means the specific attributes of Goods and Services described in Section 3.

G. “Third Party Intellectual Property” means any intellectual property owned by parties other than College or Contractor.

H. “Work Product” means all Goods and Services Contractor delivers or is required to deliver to College pursuant to this Contract.

2. REQUIRED GOODS, SERVICES, PRICING AND DELIVERY SCHEDULE.

Contractor shall deliver to College the following Goods and Services for the prices specified in this Section 2.

A. GOODS.

A. GOODS.

i. Description and Quantity:

Price:

ii. Description and Quantity:

Price:

iii. Description and Quantity:

Price:

iv. Description and Quantity:

Price:

B. SERVICES.

TRAINING: Contractor shall provide training through a qualified authorized service representative of the manufacturer.

[OPTION 1: Contractor shall train to College’s satisfaction the individuals identified by College in the operation, adjustment, repair and maintenance of Goods delivered under this Contract.

[OPTION 2: Contractor shall provide _____ hours of training for each individual identified by College in the operation, adjustment, repair and maintenance of Goods delivered under this Contract.] [OPTION 3: Contractor shall provide _____ hours of group training for the individuals identified by College in the operation, adjustment, repair and maintenance of Goods delivered under this Contract.]]

INCLUDE THE PRICES FOR SERVICES. PRICING OPTIONS INCLUDE BUT ARE NOT LIMITED TO THE FOLLOWING OPTIONS:

[OPTION 1: Contractor shall perform Services at no additional cost to College] [OPTION 2: Contractor shall perform Services for a fixed price of $__________.] [OPTION 3: Contractor shall perform Services at the following rate: $___ per _____ up to a maximum amount of $_____________].

C. DELIVERY.

i. Contractor shall deliver Goods to College and shall perform Services, if any, at the following address: Clatsop Community College, 1651 Lexington Ave., Astoria, OR 97103.

ii. Contractor shall deliver Goods F.O.B. place of shipment. Contractor shall retain the risk of loss of Goods until College accepts Goods in accordance with Section 4.D.

iii. Contractor shall deliver Goods no later than _________.

iv. Contractor shall complete all Services no later than ________.

v. TRAINING DELIVERY SCHEDULE:

College will issue a delivery schedule to Contractor for training that will specify the training date, time and location.

3. SPECIFICATIONS.

Contractor shall deliver all Goods and Services specified in Section 2 in accordance with this Section 3. Contractor’s failure to deliver Goods and Services in accordance with the provisions of this Contract is a material breach of this Contract.

A. GENERAL PROVISIONS.

i. NON-COMPLIANCE. If any Goods or component parts are recalled by a regulatory body or the manufacturer, or discovered by Contractor not to comply with applicable regulatory standards or the Specifications, Contractor shall immediately notify College of the recall or non-compliance, and shall provide copies of the recall notice or notice of non-compliance, as applicable, and all other supporting documentation for the recall or non-compliance determination. If recalled by the Contractor or a regulatory body, College may elect to (a) reject Goods in whole or in part, or (b) revoke its acceptance of Goods in whole or in part. If College rejects Goods or revokes its acceptance of Goods in response to the recall by the Contractor or a regulatory body, Contractor shall remove the particular Goods from College’s possession as provided in Section 4.D.iv at no cost to College and shall reimburse College for all payments made for those Goods.

ii. STANDARD COMPONENTS. Unless specified otherwise in this Section 3, Contractor shall provide Goods with all components and accessories that the manufacturer lists as “standard” for Goods.

iii. NECESSARY COMPONENTS. Unless specified otherwise in this Section 3, Contractor shall include all components, hardware and parts necessary for complete and proper assembly, installation and operation of Goods.

iv. NEW OR REFURBISHED GOODS. Unless specified otherwise in this Section 3, Contractor shall deliver Goods that are new or refurbished, in excellent working condition, free from defects, and produced from current production inventory. Contractor shall provide Goods manufactured from only those components that the manufacturer offers in the manufacturer’s current parts catalogue for Goods.

B. DETAILED SPECIFICATIONS.

GOODS:

TRAINING:

[CLEARLY DESCRIBE ALL SPECIFICATIONS FOR GOODS AND SERVICES]

[DRAFTERS NOTE: THIS DETAILED SPECIFICATIONS SECTION IS USED TO DESCRIBE THE REQUIRED ATTRIBUTES OF GOODS, SUCH AS WEIGHT, SIZE, CAPACITY, STYLE, INGREDIENTS/COMPOSITION, BRAND, IF APPLICABLE, ETC. PERFORMANCE SPECIFICATIONS INDICATE THE PERFORMANCE CAPABILITIES OF GOODS, SUCH AS “CAPABLE OF SORTING 1,000/MINUTE,” “SHREDS 200 SHEETS/MINUTE,” ETC. SPECIFICATIONS MAY APPLY TO SERVICES, SUCH AS SPECIFICATIONS FOR STORAGE BOXES/SHIPPING CONTAINERS USED IN CONJUNCTION WITH STORAGE OR SHIPPING SERVICES, ETC.]

4. TERMS AND CONDITIONS.

A. PAYMENT.

i. College’s Payment. College shall pay Contractor for Goods delivered and Services performed at the prices and rates specified in Section 2. Contractor shall look solely to College for payment of all amounts College owes to Contractor.

ii. If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to College a completed and signed W-8 form, 8233 form, or W-9 form, as applicable, from the IRS, as evidence that College is not required by 26 USC 1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov. College may withhold payments to Contractor pending College's receipt from Contractor of the applicable, completed and signed form. If College does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to College that Contractor's information on the form provided is incorrect, College will withhold as federal income tax 30% of all amounts College owes to Contractor under this Contract.

iii. Funds Available and Authorized; Payments. Contractor understands and agrees that College’s payment of amounts under this Contract is contingent on College receiving funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow College, in the exercise of its reasonable administrative discretion, to make payments under this Contract.

B. INVOICES.

i. Contractor shall send invoices to College no more often than monthly after College’s acceptance in accordance with Section 4.D of Goods delivered under this Contract. Contractor shall send invoices to College for completed Services no more often than monthly.

ii. Contractor shall send all invoices to the College mailing address specified in Section 7 or to any other address that College may indicate in writing to Contractor. Contractor shall include in each invoice:

a. The Solicitation number if any, the Contract number if any;

b. The quantity of Goods ordered, the quantity of Goods delivered, the date Goods were delivered, the price per unit, if applicable;

c. A detailed description of Services performed, including the name or names of the individuals who performed Services and prepared the deliverables to which the invoice applies, the dates Services were performed, all deliverables delivered during the period of the invoices, the rate or rates for Services performed, and the total cost of Services

d. Itemization and explanation of all expenses for which Contractor claims reimbursement authorized under this Contract; and

e. The total amount due and the payment address.

iii. Contractor may assess overdue account charges to College on unpaid invoices. .

C. MOST FAVORABLE PRICES AND TERMS.

Contractor represents and warrants that all prices offered by Contractor under this Contract are similar to or better than the equivalent prices being offered by Contractor to any other state or local governmental entity or commercial customer purchasing similar quantities of comparable goods and services in a one-year period.

i. If during the term of this Contract and prior to delivery, Contractor enters any contract, agreement or arrangement that provides lower prices to any other state or local governmental entity or commercial customer purchasing similar quantities of comparable goods and services in a one-year period, Contractor shall provide the same price or prices to College. The prices shall be effective as of the date Contractor agreed in writing to the more favorable pricing to any other state or local governmental entity or commercial customer purchasing similar quantities of comparable goods and services in a one-year period. This provision applies to comparable goods and services and to purchase volumes by College that are not less than the purchase volumes of the state or local governmental entity or commercial customer that has received the lower prices.

ii. Section 4.C.i does not apply to Contractor’s donations of comparable goods and services to charitable, nonprofit or governmental entities if the donations are recognized as donations and are deductible under the federal Internal Revenue Code. These donations are not considered contracts, agreements or arrangements with other state or local governmental entities or commercial customers for purposes of Section 4.C.i.

D. ACCEPTANCE, REJECTION AND REVOCATION OF ACCEPTANCE:

i. ACCEPTANCE. College shall test if College, in its sole discretion deems testing necessary, inspect and either accept or reject Goods delivered within fourteen (14) calendar days from the date Contractor delivers and sets up Goods and provides training to College. If College does not provide written notice of acceptance or rejection of Goods to Contractor within fourteen (14) calendar days following the date of delivery of Goods, College is deemed to have accepted Goods.

ii. REJECTION. If College rejects Goods, then College’s written notice of rejection shall, at a minimum, itemize the apparent defects and include:

a. a description of nonconformance between Goods delivered and the required Specifications and warranties (including any variance from demonstrations or sample characteristics of Goods if Contractor provided demonstrations or samples);

b. a description of any other nonconformance of Goods (including late delivery); and

c. a statement indicating whether Contractor may cure the nonconformance and if so, the method by which and time period within which Contractor may cure.

iii. REVOCATION OF ACCEPTANCE. Notwithstanding College’s acceptance of Goods under Section 4.D.i College may revoke its acceptance of Goods for nonconformance with the Specifications. If College revokes acceptance of Goods, College shall deliver a written notice of revocation of acceptance to Contractor that includes the same information required for a written notice of rejection under Section 4.D.ii.

iv. EFFECT OF REJECTION OR REVOCATION OF ACCEPTANCE. If College rejects Goods or revokes its acceptance of Goods and the Contractor is unwilling or unable to cure, Contractor shall refund all payments College has made to Contractor for those Goods and shall, at no cost to College, remove Goods from College’s possession within nine (9) calendar days following the later of the date of College’s notice of rejection, the date of College’s notice of revocation of acceptance, or the date of Contractor’s failure to cure if cure is permitted. Nothing contained in this Section 4.D precludes College from pursuing any remedies to which either may be entitled upon rejection or revocation of acceptance of Goods or otherwise under this Contract.

E. OTHER REPRESENTATIONS AND WARRANTIES.

All express and implied warranties that are applicable to goods under ORS Chapter 72, Uniform Commercial Code - Sales (UCC), apply to Goods delivered under this Contract. Contractor represents and further warrants that:

i. Contractor has the authority to enter into and perform in accordance with this Contract, and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms;

ii. All Goods delivered to College are new or refurbished, in excellent working condition, and produced from current production inventory and are free from defects in materials, design and manufacture for the duration of the warranty period specified in Section 3. (“Warranty Period”). Contractor further represents and warrants that all Goods meet or exceed all Specifications;

iii. All Goods delivered shall comply with all applicable federal health and safety standards.

iv. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence and perform Services in a timely, professional and workmanlike manner in accordance with standards applicable to Contractor’s industry, trade or profession; and

v. Contractor is, and shall be at all times during the term of this Contract, qualified, professionally competent and duly licensed to perform Services.

The warranties specified in this Section 4.E are in addition to, and not in lieu of, any other warranties provided in this Contract. All warranties are cumulative and shall be interpreted broadly to give College the greatest warranty protection available.

F. MANUFACTURER WARRANTIES.

At no charge to College, Contractor shall transfer or cause the transfer of all manufacturers’ warranties for Goods and component parts, if any, to the College for College’s benefit when Contractor delivers Goods to College. If a conflict or inconsistency exists between a manufacturer’s warranty and Contractor’s warranty, the warranty that provides the greatest benefit and protection to College shall prevail.

G. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.

i. Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as they may be adopted or amended from time to time.

ii. College’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.045, 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

H. AMENDMENTS.

All amendments to this Contract are Unanticipated Amendments. OAR 137-047-0800 applies to all Contract amendments.

I. SAFETY DATA SHEET.

At the time Contractor delivers Goods to College, Contractor shall provide to College a “Safety Data Sheet” as defined by (OSHA) for any Goods delivered which may release or otherwise cause exposure to a hazardous chemical substance under normal conditions of use. Contractor shall properly label, tag or mark those Goods.

J. TIME IS OF THE ESSENCE.

Contractor agrees that time is of the essence in the performance of this Contract.

K. FORCE MAJEURE.

Neither College nor Contractor shall be responsible for any failure to perform or for any delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the delaying or breaching entity's reasonable control. Contractor shall make all reasonable efforts to eliminate the cause of Contractor’s delay or breach and shall, upon elimination of the cause, continue performing under this Contract. College may terminate this Contract upon written notice to Contractor after reasonably determining that this delay or breach could likely prevent successful performance of this Contract.

L. INSURANCE.

Contractor shall obtain the insurance required under Section 5 prior to performing under this Contract and shall maintain the required insurance throughout this duration of this Contract and all Warranty Periods.

M. Independent Contractor Status; Responsibility for Taxes and Withholding.

i. Contractor shall perform all Services as an independent contractor. Although College may (a) determine and modify the delivery schedule for Goods to be delivered and Services to be performed and (b) evaluate the quality of the completed performance, College cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor is not an "officer", "employee", or "agent" of College as those terms are used in ORS 30.265.

ii. If Contractor is currently performing work for College, state, or the federal government, Contractor by signature to this Contract declares and certifies that Contractor's performance under this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance under this Contract.

iii. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless required by prevailing federal law or regulations, College will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

N. INDEMNIFICATION.

i. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY COLLEGE, STATE, ITS AGENCIES, OFFICERS, directors, agents and EMPLOYEES FROM AND AGAINST ALL THIRD PARTY CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES FOR BODILY INJURY, DEATH, OR PROPERTY DAMAGE (“CLAIMS”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTS OR OMISSIONS OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT.

ii. INDEMNITY FOR INFRINGEMENT CLAIMS. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND INDEMNIFY COLLEGE, STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS FEES, ARISING OUT OF OR RELATING TO ANY CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEM DELIVERED UNDER THIS CONTRACT BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE COLLEGE’S REASONABLE USE THEREOF , INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY (“INFRINGEMENT CLAIM”); PROVIDED, THAT COLLEGE SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

iii. COLLEGE SHALL REASONABLY COOPERATE IN GOOD FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND INFRINGEMENT CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL. COUNSEL MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT ATTORNEY GENERAL UNDER ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR REPRESENT THE INTERESTS OF, COLLEGE, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. COLLEGE MAY ELECT TO ASSUME ITS OWN DEFENSE WITH AN ATTORNEY OF ITS OWN CHOICE AND AT ITS OWN EXPENSE AT ANY TIME COLLEGE DETERMINES IMPORTANT GOVERNMENTAL INTERESTS ARE AT STAKE. sUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS AND INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF COLLEGE, WHICH CONSENT SHALL NOT BE UNREASOABLY WITHHELD, CONDITIONED OR DELAYED.

O. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO COLLEGE ANY CLAIM FOR RELIEF OR CAUSE OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT CONTRACTOR’S OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT COLLEGE’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM ANY OF CONTRACTOR’S DUTIES UNDER THIS CONTRACT TO IRREVOCABLY ASSIGN TO COLLEGE, AS THIRD PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE SUBCONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE SUBCONTRACTOR’S OBLIGATIONS TO CONTRACTOR IN PURSUANCE OF THIS CONTRACT, INCLUDING, AT COLLEGE’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

P. Events of BREACH.

i. Breach by Contractor. Contractor breaches this Contract if:

a. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

b. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the required license or certificate within fourteen (14) calendar days after delivery of College’s notice of breach or a longer period as College may specify in its notice; or

c. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, and Contractor fails to cure its breach within fourteen (14) calendar days after delivery of College’s notice of breach or within a longer period as College may specify in its notice.

ii. Breach by College. College breaches this Contract if:

a. College fails to pay Contractor any amount pursuant to the terms of this Contract, and College fails to cure this failure within fourteen (14) business days after delivery of Contractor's notice of breach or within a longer period as Contractor may specify in its notice; or

b. College commits any material breach of its obligations under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and fails to cure its failure within fourteen (14) calendar days after delivery of Contractor's notice of breach or a longer period as Contractor may specify in its notice.

Q. REMEDIES.

i. College's Remedies. If Contractor is in breach under Section 4.P.i, then in addition to the remedies afforded elsewhere in this Contract, College shall be entitled to recover for any and all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS Chapter 72. College may, at its option, pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to:

a. Termination of this Contract under Section 4.S.ii;

b. Withholding all amounts Contractor has invoiced for Goods and Services that Contractor is obligated to but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

c. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; or

d. Exercise of the right of setoff and withholding amounts otherwise due and owing to Contractor in an amount equal to College’s setoff right, without penalty.

These remedies are cumulative to the extent the remedies are not inconsistent, and College may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If Contractor is found to not be in breach under Section 4.P.i, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to Section 4.S.ii.a.

ii. Contractor's Remedies. If College terminates this Contract for convenience under Section 4.S.ii.a, or if College is in breach under Section 4.P.ii and whether or not Contractor elects to exercise its right to terminate this Contract under Section 4.S.iii, Contractor's sole remedy is a claim against College for the unpaid price for any Goods delivered and accepted by College less any claims State has against Contractor and is as follows for unpaid Services completed and accepted by College:

a. For Services compensable on an hourly basis, a claim against College for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for Services completed and accepted by College less any claims State has against Contractor.

b. For deliverable-based Services, a claim against College for the amount specified for completing the deliverable multiplied by the percentage of Services completed and accepted by College, less previous amounts paid and the amount of any claims State has against Contractor.

If previous amounts paid to Contractor for Goods and Services exceed the amount due to Contractor under this Section 4.Q.ii, Contractor shall pay the excess amount to College immediately upon written demand.

R. ATTORNEYS' FEES.

Except for defense costs and expenses pursuant to Section 4.N, neither College nor Contractor is entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to this Contract.

S. TERMINATION.

i. MUTUAL CONSENT. The Contract may be terminated at any time by mutual written consent of the parties.

ii. COLLEGE:

a. College may, at its sole discretion, terminate the Contract for its convenience upon 30 days written notice to Contractor.

b. College may, in its sole discretion, terminate this Contract, immediately upon notice to Contractor, or at a later date as College may establish in its notice, upon the occurrence of any of the following events:

1. College fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow College, in the exercise of its reasonable administrative discretion, to make payments under this Contract;

2. Federal or state laws, regulations, or guidelines are modified or interpreted in a way that either the purchase of Goods or Services, or both, by the College under this Contract is prohibited, or the College is prohibited from paying for Goods or Services, or both, from the planned funding source; or

3. Contractor commits any material breach of this Contract.

Contractor shall stop performance under this Contract as directed by College in any written notice of termination delivered to Contractor under this Section 4.S.ii.

iii. CONTRACTOR. Contractor may terminate this Contract immediately upon written notice to College, or at a later date as Contractor may establish in its notice, if College is in breach under Section 4.P.ii.

T. INTELLECTUAL PROPERTY & OPEN SOURCE; TITLE TO GOODS.

i. Contractor Intellectual Property. If intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to College an irrevocable, non-exclusive, perpetual, royalty-free license to use the Contractor Intellectual Property in the Work Product, and to authorize others to do the same on College’s behalf.

ii. Third Party Intellectual Property. To the extent necessary to use the Work Product Contractor shall secure on the College’s behalf an irrevocable, non-exclusive, perpetual, royalty-free license to the Third Party Intellectual Property in the Work Product, and to authorize others to do the same on College’s behalf.

iii. Open Source Prohibited. Contractor represents and warrants that the Work Product contains no Open Source Elements.

iv. Title to Goods. Title to Goods passes to College in accordance with ORS 72.4010.

U. ACCESS TO RECORDS.

Contractor shall retain, maintain, and keep accessible all records relevant to this Contract ("Records") for six (6) years following Contract termination or full performance, the period required by applicable law following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever ending date is later. Contractor shall maintain all financial Records in accordance with generally accepted accounting principles. During this Record-retention period, Contractor shall permit College, its duly authorized representatives, state and the federal government access to the Records at reasonable times and places for purposes of examination and copying upon at least fourteen (14) calendar days’ notice.

V. NOTICES.

All notices required under this Contract shall be in writing and addressed to the party's authorized representative. For College, the authorized representative is the College contact person identified in Section 7. Contractor's authorized representative is the contact person identified in Section 6. Mailed notices are deemed received five (5) days after the post mark date when properly addressed and deposited prepaid into the U.S. postal service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving party’s authorized representative.

W. GOVERNING LAW.

The Contract is governed by and construed in accordance with the laws of State of Oregon without regard to principles of conflicts of laws. To the extent not modified by the terms of this Contract, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs Goods under this Contract. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties, and it does not apply to this Contract.

X. VENUE; CONSENT TO JURISDICTION.

Any claim, action, suit or proceeding (collectively, “Proceeding”) between College and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of State for Clatsop County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of College's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

Y. SURVIVAL:

In addition to all provisions which by their nature extend beyond the Contract termination or full performance, the following provisions shall remain in effect beyond any Contract termination or full performance: Sections 1, 3, 4.A, 4.D, 4.E, 4.F, 4.L, 4.N, 4.O, 4.Q, 4.R, 4.T, 4.U, 4.W, 4.X, 4.Y, 4.CC and Section 5.

Z. SEVERABILITY.

If a court of competent jurisdiction declares any provision of this Contract to be illegal or otherwise invalid, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Contract did not contain the particular provision held to be invalid.

AA. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS.

i. SUBCONTRACTS. Contractor shall not enter into any subcontracts for any Services required under this Contract without College’s prior written consent. In addition to any other provisions College may require, Contractor shall include in any permitted subcontract provisions to ensure that College will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor with respect to Sections 3, 4.E, 4.F, 4.I, 4.J, 4.N, 4.O, 4.T, 4.U, 4.W, 4.X, and 4.AA. College’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

ii. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Contract without College’s prior written consent. College’s written consent does not relieve Contractor of any obligations under this Contract, and any assignee, transferee, or delegate is considered Contractor’s agent.

iii. The provisions of this Contract are binding upon, and inure to the benefit of the parties and their respective successors and permitted assigns, if any.

AB. MERGER CLAUSE; AMENDMENT; WAIVER.

This Contract constitutes the entire agreement between the parties on the subject matter thereof. There are no understandings, agreements or representations, oral or written, not specified herein regarding this Contract. This Contract may be amended to the extent permitted by applicable statutes and administrative rules. For Anticipated Amendments, this Contract may be amended only in accordance with and to the extent provided in the Solicitation, if any, and this Contract, in accordance with OAR 125-247-0805. No waiver, consent or amendment of terms of this Contract shall bind either party unless in writing and signed by College and Contractor, and all necessary approvals have been obtained. Waivers and consents shall be effective only in the specific instance and for the specific purpose given. The failure of College to enforce any provision of this Contract shall not constitute a waiver by College of that or any other provision.

AC. THIRD PARTY BENEFICIARIES.

College and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless the third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. College is an intended beneficiary of the terms of this Contract.

AD. COUNTERPARTS.

This Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed shall constitute an original.

5. INSURANCE

Contractor shall maintain in effect for the duration of this Contract, or any other time periods required herein, the insurance set forth in Exhibit B – Insurance Provisions.

6. CERTIFICATIONS AND SIGNATURE OF CONTRACTOR'S AUTHORIZED REPRESENTATIVE.

THIS CONTRACT MUST BE SIGNED IN INK BY AN AUTHORIZED REPRESENTATIVE OF

CONTRACTOR.

The undersigned certifies under penalty of perjury both individually and on behalf of Contractor that:

A. The undersigned is a duly authorized representative of Contractor, has been authorized by Contractor to make all representations, attestations, and certifications contained in this Contract and to execute this Contract on behalf of Contractor;

B. The undersigned is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to 320.150 and 403-200 to 403.250, ORS Chapters 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 320 (Amusement Device and Transient Lodging Taxes), 321 (Timber and Forestland Tax), 323 (Cigarettes and Tobacco Products Tax), and the elderly rental assistance program under ORS 310.630 to 310.706; and any local taxes administered by the Department of Revenue under ORS 305.620;

C. To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 in obtaining any required subcontracts;

D. Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/ofac/downloads;

E. Contractor is bound by and will comply with all requirements, terms and conditions contained in this Contract and will provide Goods and Services in accordance with the Specifications; and

F. Contractor FORMCHECKBOX is / FORMCHECKBOX is not a nonresident alien as defined in 26 USC § 7701(b)(1) (check one). See Section 4.A.ii.

Contractor: ____________________ Authorized Signature:_______________________________________

By (print name):____________________________________________

Title:_____________________________________________________

Date:___________________________

Contractor’s Contact Person (Type or Print):_________________________________________

Contact Telephone Number: (______) ______________________

Contact Fax Number: (_______) ___________________________

Contact E-Mail Address: ________________________________________

Mailing Address:________________________________________

7. SIGNATURE OF COLLEGE’S AUTHORIZED REPRESENTATIVE.

College accepts Contractor's offer and awards this Contract to Contractor for Goods and Service described in this Contract.

College: Clatsop Community College

Authorized Signature:_______________________________________

By (print name): TBI (VPFO) or Chris Breitmeyer (President) Title: VP Finance & Operations or President Date: _____________________________

College’s Contact Person (Type or Print): Doris Jepson Contact Telephone Number: (503) 338-2436 Fax Number: (503) 325-5738 E-Mail Address: djepson@clatsopcc.edu Accounts Payable Contact

Accounts Payable Telephone Number: (503) 338-2479

Fax Number: (503) 325-5738

E-Mail Address: accountspayable@clatsopcc.edu

College Mailing Address: 1651 Lexington Ave, Astoria OR 97103 Exhibit A

Special Terms and Conditions

1. DELIVERY: Deliveries will be F.O.B destination, unless otherwise agreed. Contractor shall pay all transportation and handling charges. Contractor is responsible and liable for loss or damage until final inspection and acceptance of the Goods. Contractor remains liable for latent defects, fraud, and warranties.

2. PAYMENT: College shall pay Contractor within 30 days from (i) the date the Goods are delivered and accepted or (ii) the date the invoice is received, whichever is later. If College fails to pay within 45 days of such date, Contractor may assess overdue account charges up to a rate of 2/3% per month (8% APR) or the maximum rate allowed by law on the outstanding balance.

3. REPRESENTATIONS AND WARRANTIES: Contractor represents and warrants that:

· Unless otherwise agreed, the Goods are new and unused, (and if applicable, the current model), free and clear of any liens or encumbrances, and carry full manufacturer warranties;

· Contractor shall transfer all manufacturer warranties to the College;

· Delivered Goods will comply with specifications and be free from defects in labor, material and manufacture;

· Contractor owns or has the right to transfer or sell the Goods to College;

· Contractor has the authority to enter into this contract and this contract is a binding obligation upon Contractor;

· Contractor is an independent contractor and its provision of the Goods creates no potential or actual conflict of interest as defined in ORS 244;

· Contractor shall comply with the tax laws of this state and all political subdivisions;

· Contractor has no undisclosed liquidated and delinquent debt owed to the State, any department or agency of the State, or the College and

· All implied and express warranties under the UCC are incorporated in this contract.

These representations and warranties are cumulative and are in addition to and not in lieu of any other representations or warranties found in this contract or the law.

4. SAFETY DATA SHEETS: As applicable, Contractor shall provide College with a Safety Data Sheet (SDS) for any Goods which may release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use 29 CFR 1910.1200(g)(6)(iii). Contractor shall label, tag or mark such Goods.

5. WAIVER: College’s failure to enforce any provision of this contract is not a waiver or relinquishment by College of its rights to such performance in the future or to enforce any other provisions.

6. TAX CERTIFICATION: Contractor hereby certifies under penalty of perjury: (a) the number shown on the W9 is the correct Federal Employer Identification Number; (b) it is not subject to backup withholding because (i) it is exempt from backup withholding, (ii) it has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that it is no longer subject to backup withholding; and (c) it is not in violation of any Oregon tax laws.

EXHIBIT B

INSURANCE PROVISIONS

REQUIRED INSURANCE. Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit B prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract and all warranty periods. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in Oregon and that are acceptable to Owner.

1. WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its sub-Contractors complies with these requirements.

2. PROFESSIONAL LIABILITY

FORMCHECKBOX

Required by Owner FORMCHECKBOX Not required by Owner.

FORMCHECKBOX

Professional Liability. Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract. Consultant shall provide proof of insurance of not less than the following amounts as determined by Owner:

FORMCHECKBOX

$2,000,000 Per occurrence limit for any single claimant; and

FORMCHECKBOX

$3,000,000 Per occurrence limit for any number of claimants

3. COMMERCIAL GENERAL LIABILITY.

FORMCHECKBOX

Required by Owner FORMCHECKBOX Not required by Owner.

FORMCHECKBOX

Commercial General Liability. Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverages that are satisfactory to the College. This insurance shall include personal injury liability, products and completed operations. Coverage shall be written on an occurrence basis. Contractor shall provide proof of insurance of not less than the following amounts as determined by Owner:

Bodily Injury/Death:

FORMCHECKBOX

$2,000,000 Per occurrence limit for any combined single limit for bodily injury/property damage

FORMCHECKBOX

$4,000,000 Per occurrence limit for any number of claimants combined limit for bodily injury/property damage:

4. AUTOMOBILE LIABILITY INSURANCE: AUTOMOBILE LIABILITY.

FORMCHECKBOX

Required by Owner FORMCHECKBOX Not required by Owner.

5. EMPLOYERS' LIABILITY.

FORMCHECKBOX

Required by Owner FORMCHECKBOX Not required by Owner.

6. POLLUTION LIABILITY.

FORMCHECKBOX

Required by Owner FORMCHECKBOX Not required by Owner.

7. EXCESS/UMBRELLA INSURANCE.

A combination of primary and excess/umbrella insurance is acceptable to meet the minimum coverage requirements for liability insurance. In such case, the insurance certificate must include a list of the policies that fall under the excess/umbrella insurance. Sample wording is “The Excess/Umbrella policy is excess over primary Professional Liability, Commercial General Liability, Automobile Liability Insurance, etc.”

8. ADDITIONAL INSURED.

The Commercial General Liability insurance and Automobile Liability insurance required under this Contract shall include Clatsop Community College, its officers, employees and agents as Additional Insureds but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

9. "TAIL" COVERAGE.

If any of the required professional liability insurance is on a "claims made" basis, Contractor shall either maintain either “tail" coverage or continuous "claims made" liability coverage, provided the effective date of the continuous “claims made” coverage is on or before the effective date of this Contract, for a minimum of 24 months following the later of (i) Contractor’s completion and Owner’s acceptance of all Services required under this Contract, or, (ii) The expiration of all warranty periods provided under this Contract. Notwithstanding the foregoing 24-month requirement, if Contractor elects to maintain “tail” coverage and if the maximum time period “tail” coverage reasonably available in the marketplace is less than the 24-month period described above, then Contractor shall maintain “tail” coverage for the maximum time period that “tail” coverage is reasonably available in the marketplace for the coverage required under this Contract. Contractor shall provide to Owner, upon Owner’s request, certification of the coverage required under this Exhibit B.

10. NOTICE OF CANCELLATION OR CHANGE.

There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without sixty (60) days' written notice from this Contractor or its insurer(s) to Owner. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by Owner.

11. CERTIFICATE(S) OF INSURANCE.

Contractor shall provide to Owner Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The Certificate(s) must specify all entities and individuals who are endorsed on the policy as Additional Insured (or Loss Payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any. The Contractor shall immediately notify the Owner’s Representative in writing of any change in insurance coverage.

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GOODS CONTRACT (Agency Authorized Purchase/DOJ-APPROVED: 4/7/2006, updated 08/19/10)

Revised CCC 01/28/2020