2026 OSF Merchandise Store Partnership.docx

Request for Proposal (RFP)

Issued by:

Ohio Expo Center & State Fairgrounds (OEC)

The OEC is requesting Proposals for:

Ohio State Fair & ECommerce Merchandise Store Partnership

RFP Issued: September 15, 2025 Inquiry Period: September 6, 2025 – October 10, 2025 Proposals Due: Wednesday, October 15, 2025, at Noon EST

1. Objective The Ohio Expo Center & State Fairgrounds (OEC) is soliciting competitive proposals for a qualified vendor to enter a three-year contract to become the exclusive Official Ohio State Fair Merchandise partner, responsible for every aspect of the on-site and year-round retail program. The vendor will design, produce, sell, and manage merchandise that aligns with fair branding and enhances visitor experience—all while delivering a strong financial return to both the vendor and the OEC.

If a suitable offer is made in response to this RFP, the OEC may enter into a contract (Contract) to have the selected Offeror (the Vendor) perform all parts of the Project. This RFP provides details on what is required to submit a proposal, how OEC will evaluate the proposals, and what will be required of the Vendor in performing the work.

2. Background The Ohio State Fair is one of the nation’s premier state fairs, drawing nearly one million visitors annually to Columbus, Ohio. For 12 days each summer, families from across the state and beyond experience concerts, livestock shows, the Natural Resources Park, rides, food, shopping, and entertainment. The Fair has been recognized nationally by Travel Magazine, Yahoo! Travel, Huffington Post, Forbes, and USA Today’s 10 Best Readers’ Choice Awards.

The Fair’s merchandise program plays a critical role in shaping guest memories, extending the Fair’s brand year-round, and creating new revenue opportunities.

Historical Sales: Historically the fair has operated two merchandise store locations, achieving annual gross sales of approximately $90,000 – $100,000. With the option of expanded/new locations, a refreshed merchandise strategy, and integration of online sales, there is significant potential for growth and increased revenue at the Ohio State Fair.

3. General Instruction A. Failure to meet a deadline in the submission or evaluation phases or any objection to the dates for the performance in the Proposal phase may result in the OEC not considering the Proposal from the Offeror.

B. Contract Period:

· The term of this contract will be from the award date through June 30, 2028. Based on the State’s fiscal year closing in June 2028, the OEC may extend all or part of this Contract with an optional five-year term through June 30, 2033. Comment by Shoults, Alicia: Ignore these comments if this is a part of the standard terms and my suggestions aren't warranted.

C. Default, Remedies, and Termination

· Failure to Perform: If the vendor fails to perform any of the services, responsibilities, or requirements outlined in this RFP and subsequent agreement, OEC will provide written notice of the deficiency and allow a reasonable period (not to exceed 10 business days) for the vendor to correct the issue.

· Material Breach: Failure to correct deficiencies within the specified timeframe, or repeated violations, shall constitute a material breach of contract.

· Remedies Available to OEC: In the event of a breach, OEC reserves the right to:

i. Assess financial damages, including lost commission revenue and costs incurred by OEC to mitigate deficiencies.

ii. Terminate the agreement for cause and immediately remove the vendor from Fairgrounds operations.

iii. Declare the vendor ineligible to participate in future OEC merchandise or retail contracts for up to three years.

· Termination Without Cause: OEC reserves the right to terminate the contract without cause by providing 30 days written notice.

· Unsold Inventory: In the event of contract termination, the vendor shall promptly remove all merchandise, fixtures, and equipment from the Fairgrounds. If termination occurs prior to or during the Fair, OEC reserves the option to purchase unsold inventory up to a maximum of $20,000 in value. This buy-out will be limited to merchandise reasonably associated with fulfilling the obligations of this agreement and will be executed at the vendor’s documented cost of goods.

4. Scope of Work A. Product Design & Branding

· Collaborate with OEC’s Visual Communications Department on merchandise design.

· Uphold Ohio State Fair branding where applicable as shown in Attachment A.

· Submit new product line proposals annually for review.

· All proposed designs must be exclusive to the Ohio State Fair and may not be used at any other event, fair, or venue. Limited exceptions to this rule may be considered on a case-by-case basis and require prior review and written approval from OEC staff.

B. Production & Sourcing

· Manufacture high-quality, appealing merchandise (e.g., apparel, hats, drinkware, plush, novelty items).

· Offer a mix of year-round bestsellers and fresh product drops.

· Store and make unsold inventory available via the online store after the Fair, including all shipping and logistics.

C. Retail Operations (On-site) Comment by Shoults, Alicia: Might want to add a map and list where these are on the map.

· Operate up to three retail locations upon negotiation with OEC staff

· One indoor (Bricker Marketplace, adjustable footprint)

· A limited amount of retail and display equipment is available and may be provided upon request for Vendor use.

· Ensure consistent branding, display quality, and customer service.

· Employ an on-site merchandise manager with at least three years of relevant experience; include résumé and detailed staffing plan in proposal.

D. Ecommerce & Year-Round Sales

· Maintain a branded online store for year-round merchandise sales, including unsold Fair stock.

· Manage order fulfillment, shipping, returns, and customer support.

· Integrate with OEC’s digital marketing/outreach initiatives.

E. Licensing & Exclusivity Comment by Shoults, Alicia: Let's move this section up to E, and make that section F.

· The selected vendor will hold exclusive rights to produce and sell Official Ohio State Fair merchandise during the term of this agreement.

· All merchandise bearing the Ohio State Fair name, references, logos, trademarks, or other associated marks must be approved by OEC prior to production.

· Exclusivity Clause: Official Ohio State Fair merchandise designs, graphics, or related intellectual property created under this agreement may not be used at any other fair, festival, or event. The OEC will continue to have the right to use the Ohio State Fair name, brand, and likeness on uniforms, complimentary merchandise, giveaways, gifts, and other items at its discretion.

· Limited exceptions may be considered (e.g., regional tourism collaborations, co-branded campaigns) but must be reviewed and approved in writing by OEC staff prior to use.

· Non-Fair merchandise (e.g., general Ohio or Midwest-themed apparel/items) may be sold at Fair locations, but such items are not considered “Official Ohio State Fair merchandise” and will be subject to the reduced 8% commission rate, detailed in Section F below.

· Vendor shall not sublicense or transfer merchandise rights to third parties without express written consent of OEC.

F. Financial Model & Reporting

· The selected vendor will remit to the Ohio Expositions Commission (OEC):

· Flat Commission Rate:

i. 18% of all gross sales (excluding taxes), regardless of sales level.

· Minimum Guarantees:

i. Year One: Vendor will remit a minimum of $16,000 to OEC, regardless of sales performance; 18% of all gross sales will be remitted by Vendor to OEC for any sales over and above the $16,000 minimum. Comment by Shoults, Alicia: @Casbarro, Shaun Please review and make sure these additions I have made are accurate. Do we want ONLY the flat rate fee for those years, or flat rate guarantee + 18% of anything over and above?

ii. Year Two and Three: Vendor will remit a minimum of $18,000 annually, regardless of sales performance; 18% of all gross sales will be remitted by Vendor to OEC for any sales over and above the $16,000 minimum.

· Non-Fair Merchandise (as defined in Section E):

i. Vendors are permitted to sell other apparel and non-Fair merchandise (e.g., general Ohio or Midwest-themed apparel/items) at Fair locations.

ii. Such items are not considered Official Ohio State Fair merchandise and will be subject to a reduced 8% commission rate.

· Reporting & Systems:

i. Provide daily and cumulative sales and inventory reports during the Fair via the Clover POS system, or other preferred POS system as directed by the OEC, including OEC access to POS data.

ii. Vendor must maintain transparent, auditable financial records available for OEC review at a schedule to be negotiated.

5. Vendor Requirements

· Demonstrated experience managing merchandise programs for large-scale events, fairs, or exhibitions.

· On-site retail operations experience with staffing and display management.

· Proven track record in ecommerce and fulfillment.

· Named on-site manager with minimum three years’ experience (résumé required).

· Ability to host and manage unsold inventory online.

6. OEC Supporting Resources

· Up to three total on-site retail locations.

· Indoor (1) and outdoor (up to 3) locations available for consideration.

· Marketing support: social media, organic digital promotion, signage, display, print.

· Creative support from OEC print/design shop.

7. Proposal Submission Please complete all sections of this form and submit it electronically with any requested attachments. Responses should be clear, concise, and directly address the requirements outlined in the Request for Proposal (RFP). Attach additional pages where necessary.

SECTION 1: COMPANY INFORMATION

Legal name of company

Street Address

City, State ZIP

Tax ID number

Website

E-Commerce Site

Is any civil or criminal litigation currently pending against the named business organization, its owners, officers, or employees? ☐ Yes ☐ No

PERSON RESPONSIBLE FOR THIS PROPOSAL AND/OR CONTRACT

Name

Phone number

Email address

SECTION 2: COMPANY OVERVIEW & RELEVANT EXPERIENCES

Provide a brief history of your company and describe your experience operating merchandise programs for fairs, festivals, or other large-scale events. Highlight any Ohio-based ownership, Minority Business Enterprise (MBE), or Encouraging Diversity, Growth & Equity (EDGE) certifications.

SECTION 3: ON-SITE OPERATIONS & STAFFING

Provide your on-site operations plan, including store setup, teardown, and daily management. Describe your staffing model and provide a biography/resume for the proposed on-site merchandise manager.

SECTION 4: MERCHANDISE STRATEGY

Outline your approach to design, sourcing, and product catalog development. Explain how your merchandise aligns with the Ohio State Fair brand and audience appeal. Provide examples of innovation in merchandise design or product selection.

SECTION 5: ECOMMERCE & UNSOLD INVENTORY PLAN

Describe your ecommerce platform and year-round sales strategy. Explain how you will handle unsold inventory (storage, online availability, discounting strategy, etc.).

SECTION 6: CLIENT REFERENCES

Provide at least three references from comparable fairs, festivals, or events where you have operated a merchandise program.

Company:

Phone number:

Email address:

Company:

Phone number:

Email address:

Company:

Phone number:

Email address:

CLIENT TESTIMONIALS

If available, please provide quotes and endorsements you can share from existing clients.

Section 7: Sample Store Setups & Merchandise Images

Include images or mockups of past store setups and merchandise displays. Provide photos of sample merchandise or comparable product lines.

AUTHORIZATION

☐ I verify that having reviewed the information in this Request for Proposal, and the specifications herein, I hereby propose to furnish all labor, materials, equipment, and insurance required to provide these services. I understand and agree that failure to provide accurate data and truthful disclosure as called for in the specifications and this proposal form and; alterations of (or deviations from) the specification and this proposal form shall in all instances constitute grounds for rejection of proposal. Any person signing a proposal as agent of another may be required to furnish legal evidence of his authority to do so.

Date:

8. Evaluation Criteria Proposals will be evaluated on the following criteria:

1. Operational capability, capacity and experience.

2. Innovation and merchandise appeal.

3. Financial strength (guarantee and revenue potential).

4. Past successes running a merchandise program.

5. On-site management quality and staffing plan.

6. Ohio-owned, MBE, EDGE considerations.

The Ohio Expo Center reserves the right to reject all proposals.

9. Important Dates

· Proposal Deadline: Friday, October 15, 2025 (Noon EST)

· Vendor Selection & Contracting: November – December 2025

· Merchandise Planning & Design: January – March 2026

· Production & Marketing: Spring 2026

· 2026 Fair Dates: July 29 – August 9, 2026

10. Submission Instructions Proposals must be uploaded in Ohio Buys at: https://ohiobuys.ohio.gov/page.aspx/en/rfp/request_browse_public Electronic Submission: Offeror must submit one (1) original Proposal which includes all sections of the completed form.

The OEC may reject any proposals or unsolicited proposal amendments that are received after the deadline.

Each Offeror must carefully review the requirements of this RFP and the contents of its proposal. OEC will not be liable for any costs incurred by any Offeror in responding to this RFP, regardless of whether the OEC the contract through this process, cancels this RFP for any reason, or issues another RFP.

By submitting a Proposal, the Offeror acknowledges that it has read this RFP, understands it, and agrees to be bound by its requirements.

In addition, the Offeror will agree to abide by all laws, rules and directives of the State of Ohio, as they pertain to vendors doing business with the State of Ohio.

All inquiries should also be directed to: s.casbarro@expo.ohio.gov

STATE OF OHIO

STANDARD TERMS & CONDITIONS

I. GLOSSARY – The following definitions are applicable to all components of the Contract:

A. Acceptance: Approval and retention by the Ordering Agency of any products, supplies, services or other Deliverables, delivered to fulfill Contract requirements.

B. Contracting Agency: The agency with which the Contractor enters into the Contract and that has the authority to enforce the Terms and Conditions of this Contract. The Contracting Agency may also be the Ordering Agency.

C. Default: The omission or failure to perform any obligation under this Contract.

D. Deliverable: Any Contractor-provided products, supplies, services or work product described in the specifications of the Contract.

E. Ordering Agency: The entity, including State agencies and State of Ohio Cooperative Purchasing members authorized under Section 125.04 of the Ohio Revised Code, that purchases and accepts the products, supplies, services or other Deliverables under this Contract and that is responsible for payment. The Ordering Agency may also be the Contracting Agency.

F. State: The State of Ohio.

G. Time and Materials Contract: A Contract in which Contractor is paid (1) an hourly rate for labor actually performed and (2) if applicable and with prior approval by the Ordering Agency, for the cost of the material or supplies actually used by the Contractor. Such rates and costs shall be established through Contractor’s submission of a price sheet, written quote, estimate, or invoice, as approved by the State. Hourly rates may include wages, overhead, general and administrative expenses, and reasonable profit. Materials or supplies may include the Contractor’s direct and indirect costs attributable to the work performed.

II. REGULATORY CONTRACT REQUIREMENTS

A. ANTITRUST. The State and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State. The Contractor therefore assigns to the State all stat and federal antitrust claims and causes of action that the Contractor has or acquires relating to the goods and services acquired under this Contract.

B. APPROPRIATION OF FUNDS. The State’s funds are contingent upon the availability of lawful appropriations by the Ohio General Assembly. If the General Assembly fails at any time to continue funding for the payments or any other obligations due by the State under this Contract, the State will be released from its obligations on the date funding expires. If appropriations are approved, the State may continue this Contract past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of the State are subject to Section 126.07 of the Ohio Revised Code.

C. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Contract with all applicable federal, state, local laws and Executive Orders while performing under this Contract.

The independent Contractor will comply with Ohio IT-04 and any associated agency policies if given access to statewide and agency IT resources.

D. CONFLICT OF INTEREST/ETHICS. Contractor represents, warrants and certifies that it and its employees engaged in the administration or performance of this Contract are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws.

E. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY. The Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this Contract, the Contract is void ab initio and the Contractor shall immediately repay any funds paid under this Contract.

F. DEBARMENT. Contractor represents and warrants that it is not debarred from consideration for contract awards by any governmental agency. If this representation and warranty is found to be false, this Contract is void ab initio and the Contractor shall immediately repay any funds paid under this Contract.

G. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor employees, while working on State property, will not purchase, transfer, use or possess illegal drugs or alcohol or abuse prescription drugs in any way.

H. ELECTIONS LAW. Unless this Contract was solicited by competitive bid pursuant to Section 125.07 of the Ohio Revised Code, Contractor hereby certifies that all applicable parties are in full compliance with Section 3517.13 of the Ohio Revised Code.

I. EQUAL EMPLOYMENT OPPORTUNITY. The Contractor will comply with all state and federal laws regarding equal employment opportunity and fair labor and employment practices, including Section 125.111 of the Ohio Revised Code and all related Executive Orders. Before a Contract can be awarded or renewed, an Affirmative Action Plan must be submitted to and approved by the Ohio Department of Administrative Services, Equal Opportunity Division.

J. EXPENDITURE OF PUBLIC FUNDS ON OFFSHORE SERVICES. The Contractor affirms it understands Executive Order 2022-02D and shall abide by those requirements in the performance of the Contract. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid for services the Contractor performs outside of the United States for which it did not receive a waiver. The State does not waive any other rights and remedies provided the State in the Contract.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure form to abide with Executive Order 2022-02D affirming no services of the Contractor or its subcontractors under this Contract will be performed outside the United States. During the performance of this Contract, the Contractor must not change the location(s) of the country where the services are performed, change the location(s) of the country where the data is maintained, or made available unless a duly signed waiver from the State has been attained to perform the services outside the United States.

K. GOVERNING LAW. This Contract shall be governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio.

L. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that Contractor is an independent contractor and is not an agent, servant, or employee of the State. Contractor declares that it is engaged as an independent business and has complied with all applicable federal, state, and local laws regarding business permits and licenses of any kind, including but not limited to any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, state, municipal or other tax liabilities. Additionally, Contractor understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the State to any public employee retirement system.

Contractor acknowledges and agrees any individual providing personal services under this Contract is not a public employee for purposes of Chapter 145 of the Ohio Revised Code. Unless Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code (“an entity with five or more employees that is a corporation, association, firm, limited liability company, partnership, sole proprietorship, or other entity engaged in business”) Contractor shall have any individual performing services under the Contract complete and submit to the Ordering Agency the Independent Contractor/Worker Acknowledgement form.

Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement prior to commencement of the work, service or deliverable, provided under this Contract, shall serve as Contractor’s certification that Contractor is a “Business entity” as the term is defined in Section 145.037 of the Ohio Revised Code.

M. REGISTRATION WITH THE SECRETARY OF STATE. Contractor certifies that it is either:

1. A company that is properly registered with the Ohio Secretary of State; or

2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with the Ohio Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code, as applicable; or

3. Exempt from registration requirements of the Ohio Secretary of State.

N. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the State is exempt from sales tax.

O. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the Contract period.

The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the United States. The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, acquire any supplies or services in accordance with all trade control laws, regulations or orders of the United States, including the prohibited source regulations set forth in subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. A list of those sanctions by country can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. These sanctions generally preclude acquiring any supplies or services that originate from sources within, or that were located in or transported from or through Cuba, Iran, Libya, North Korea, Syria, or the Crimea region of Ukraine.

P. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Contract will be at the Contractor’s expense. The State will pay for any additional travel that it requests only with prior written approval. The State will pay for all additional travel expenses that it requests in accordance with Section 126.31 of the Ohio Revised Code and Rule 126-1-02 of the Ohio Administrative Code.

Q. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State agencies to set-aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth and Equity (EDGE) businesses. Therefore, the State encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

III. CONTRACT CONSTRUCTION

A. TERM OF CONTRACT. The effective date of the Contract is the effective date stated in the Contract or the date the Contract is fully executed, whichever is later. The Contract will remain in effect until the earliest of: (1) the ending date stated in the Contract; (2) the Contract is fully performed by both parties; (3) the Contract is canceled or terminated; or (4) the Contract expires at the end of a biennium unless continued by the State. This Contract may be renewed upon satisfactory performance of activities hereunder, appropriation of funds by the Ohio General Assembly, and at the sole discretion of the State. The State will issue a notice to the Contractor if the State decides to renew this Contract. The Contractor shall not obligate resources in anticipation of a renewal until notice is provided.

B. CONTRACT AMENDMENTS / WAIVER.

1. AMENDMENTS. No change to any provision of this Contract will be effective unless it is in writing and signed by both parties. Notwithstanding the foregoing, the State may reduce non-material changes to writing and provide notice to the Contractor.

2. WAIVER. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Contract will not be a waiver of those terms or to any other terms of this Contract. Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

C. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any of its duties under this Contract without written consent of the State. Any assignment or delegation not consented to may be deemed void by the State.

D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Contract, this Contract will be binding upon and inure to the benefit of the respective successors and assigns of the State and the Contractor.

E. LANGUAGE CONSTRUCTION. This Contract will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

F. DAYS. When this Contract refers to days, it means calendar days, unless it expressly provides otherwise.

G. HEADINGS. The headings in this Contract are for convenience only and will not affect the interpretation of any of the Contract terms and conditions.

H. INJUNCTIVE RELIEF. Nothing in this Contract is intended to limit the State’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

I. NOTICES. For any notice under this Contract to be effective the notice must be made in writing and delivered to the appropriate contact provided in the Contract.

J. ORDER OF PRIORITY. Unless otherwise stated elsewhere in this Contract, the Special Terms and Conditions will take precedence over the Standard Terms and Conditions. If there is any inconsistency or conflict between this Contract and any provision incorporated by reference by the Contractor, this Contract will prevail.

K. PUBLICITY. The Contractor shall not do the following without prior, written consent from the State:

1. Advertise that the Contractor is doing business with the State; or

2. Use this Contract as a marketing or sales tool.

L. SEVERABILITY. If any provision of the Contract or the application of any provision is held by a court to be contrary to law, the remaining provisions of the Contract will remain in full force and effect.

M. SUBCONTRACTING. The State recognizes that it may be necessary for the Contractor to use a subcontractor to perform a portion of the work under the Contract. In those circumstances, the Contractor shall submit a list identifying the Contractor’s subcontractors. The Contractor may not enter into subcontracts related to the Contract after award without written approval from the State. If any change occurs during the term of the Contract, that requires a change to identified subcontractors, the Contractor shall amend its list of subcontractors and request written approval from the State. The State reserves the right to reject any subcontractor submitted by the Contractor.

All subcontracts will be at the sole expense of the Contractor and the Contractor will be solely responsible for payment of its subcontractors. The Contractor assumes responsibility for all sub-contracting and third- party manufacturer work performed under the Contract. In addition, all subcontractors agree to be bound by all of the Terms and Conditions and specifications of the Contract. The Contractor will be the sole point of contact with regard to all contractual matters.

N. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership, indemnification, maintenance, publicity, warranties and limitations on damages shall survive the termination of this Contract.

IV. ORDER AND PAYMENT PROVISIONS

A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Contract are binding on the State, and the Contractor will not begin performance on this Contract, until all of the following conditions are met:

1. All statutory provisions under the Ohio Revised Code have been met.

2. All necessary funds are made available by the appropriate Ordering Agency.

3. If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the appropriate Ordering Agency.

4. If required, the Controlling Board of Ohio has approved the purchase in accordance with Section 127.16 of the Ohio Revised Code.

B. CONTRACT ORDERS. Ordering Agencies will order supplies or services under this Contract from the invoice to the office at the following email address. Contractor directly. The Contractor may receive orders made by Ordering Agencies by telephone, facsimile, electronically, in person, payment card (if applicable) or purchase order from authorized employees of the Ordering Agency. Neither the Ordering Agency nor the Contracting Agency will be responsible for orders placed by unauthorized employees.

V. LIABILITY PROVISIONS

A. GENERAL REPRESENTATIONS AND WARRANTIES. The Contractor warrants that:

1. The recommendations, guidance, and performance of the Contractor under this Contract will be in accordance with the industry’s professional standards, the requirements of this Contract and without any material defect.

2. No Deliverable will infringe on the intellectual property rights of any third party.

3. All warranties are in accordance with the Contractor’s standard business practices.

4. The Deliverables are merchantable and fit for the particular purpose described in this Contract and will perform substantially in accordance with its user manuals, technical materials, and related writings.

5. The Deliverables comply with all governmental, environmental and safety standards.

6. The Contractor has the right to enter into this Contract.

7. The Contractor has not entered into any other contracts or employment relationships that restrict the Contractor’s ability to perform under this Contract.

8. The Contractor will observe and abide by all applicable laws and regulations, including those of the State regarding conduct on any premises under the State’s control.

9. The Contractor has good and marketable title to any Deliverable delivered under this Contract for which title passes to the State.

10. The Contractor has the right and ability to grant the license granted in any Deliverable for which title does not pass to the State.

If any work of the Contractor or any Deliverable fails to comply with these warranties, and the Contractor is so notified in writing, the Contractor will correct such failure in a commercially reasonable time or as specified in the Contract. If the Contractor fails to comply, the Contractor will refund the amount paid for the Deliverable. The Contractor will also indemnify the State for any direct damages and claims by third parties based on breach of these warranties.

Any other express warranties offered by the Contractor shall be a minimum of one year or the Contractor’s standard warranty whichever is longer.

B. INDEMNITY. The Contractor must indemnify the State for any and all claims, damages, lawsuits, costs, judgments, expenses, and any other liabilities including, but not limited to, bodily injury to any person (including injury resulting in death) or damage to property, that may arise out of, or are related to, the Contractor’s performance under this Contract, providing such is due to the negligence or other tortious conduct of the Contractor, the Contractor’s employees, agents, or subcontractors.

The Contractor must also indemnify the State against any claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on the State’s proper use of any Deliverable under this Contract. This obligation of indemnification will not apply where the State has modified or misused the Deliverable and the claim of infringement is based on the modification or misuse. If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor must take one (1) of the following four (4) actions:

1. Modify the Deliverable so that the Deliverable is no longer infringing;

2. Replace the Deliverable with an equivalent or better item;

3. Acquire the right for the State to use the infringing Deliverable as intended; or

4. Remove the infringing Deliverable and refund the fee the State paid for such Deliverable and any other affected Deliverable.

The State agrees to give the Contractor notice of any such claim as soon as reasonably practicable and to give the Contractor the authority to settle or otherwise defend any such claim upon consultation with and approval by the Office of the Ohio Attorney General.

C. WORKERS’ COMPENSATION. Workers’ compensation insurance, as required by Ohio law or the laws of any other state where work under this Contract will be done. The Contractor will also maintain employer’s liability insurance with at least a $1,000,000.00 limit.

D. AUTOMOBILE AND GENERAL LIABILITY INSURANCE. During the term of the Contract and any renewal thereto, the Contractor, and any agent of the Contractor, at its sole cost and expense shall maintain a policy of Automobile Liability Insurance in accordance with the State and Federal laws, unless otherwise stated. In addition, Contractor shall carry Commercial General Liability Insurance coverage with a $1,000,000 annual aggregate and a $500,000 per occurrence limit for bodily injury, personal injury, wrongful death and property damage. The defense cost shall be outside the policy limits. Such policy shall designate the State of Ohio as an Additional Insured, as its interest may appear. The policy shall also be endorsed to include a blanket waiver of subrogation and a statement that the Contractor’s commercial general liability insurance shall be primary over any other coverage. Umbrella/excess liability insurance may be used to meet the required limits and the coverage must follow form. The State reserves the right to approve all policy deductibles and levels of self-insured retention-captive insurance programs and may require the Contractor to have their policy(ies) endorsed to reflect per project / per location general aggregate limits.

Failure to submit the insurance certificates may result in the Contractor being deemed not responsive. Said certificates shall contain a clause or endorsement providing thirty (30) days prior written notice of cancellation, non-renewal or decrease in coverage will be given to the State. Failure of the Contractor to maintain this coverage for the duration of the Contract, and any renewals thereto, may be considered as a default. All insuring companies shall have and maintain at least an A- (Excellent) rating from A.M. Best, unless otherwise approved in writing by the State.

E. LIMITATION OF LIABILITY. Notwithstanding any limitation provisions contained in the documents and materials incorporated by reference into this Contract, the parties agree as follows:

1. Neither party will be liable for any indirect, incidental or consequential loss or damage of any kind including but not limited to lost profits, even if the parties have been advised, knew, or should have known of the possibility of damages.

2. The Contractor further agrees that the Contractor shall be liable for all direct damages due to the fault or negligence of the Contractor.

F. PRODUCT RECALL. In the event product delivered has been recalled, seized, or embargoed and/or has been determined to be misbranded, adulterated, or in the case of consumable product, found to be unfit for human consumption by the packer, processor, manufacturer or by any state or federal regulatory agency, the Contractor shall notify the Contracting Agency and all Ordering Agencies within two business days after notice has been given. The Contractor shall, at the option of the Ordering Agency, either reimburse the purchase price or provide an equivalent replacement product at no additional cost. The Contractor shall be responsible for removal and/or replacement of the affected product within a reasonable time as determined by the Ordering Agency. At the option of the Ordering Agency, the Contractor may be required to reimburse storage and handling fees to be calculated from time of delivery and acceptance to actual removal. The Contractor will bear all costs associated with the removal and proper disposal of the affected product. Failure to reimburse the purchase price or provide equivalent replacement product will be considered a default.

VI. PERFORMANCE AND COMPLIANCE

A. AUDITS. The Contractor must keep all financial records in a manner consistent with Generally Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the Contractor must keep separate business records for this project, including records of disbursements and obligations incurred that must be supported by Contracts, invoices, vouchers and other data as appropriate.

During the period covered by this Contract and until the expiration of three (3) years after final payment under this Contract, the Contractor agrees to provide the State, or any authorized representatives providing financial support to the work undertaken hereunder, with access to and the right to examine any books, documents, papers and records of the Contractor involving transactions related to this Contract.

Contractor must, for each subcontract in excess of $2,500, require its subcontractors to agree to the same provisions of this Section. The Contractor may not artificially divide Contracts with its subcontractors to avoid requiring subcontractors to agree to this provision. This provision does not apply to Contracts where federal funds are used and the federal government requires audits of all subcontracts regardless of the amount of the Contract.

The Contractor must provide access to the requested records no later than five (5) business days after the request by the State, the State’s designee or any party with audit rights. If an audit reveals any material deviation from the Contract requirements, any misrepresentations, or overcharge to the State or any other provider of funds for the Contract, the State or other party will be entitled to recover damages as well as the cost of the audit.

B. F.O.B. DESTINATION/ACCEPTANCE. The Contractor must provide Deliverables under this Contract F.O.B. Destination. The place of destination will be specified by the Ordering Agency on the agency’s purchase order or other ordering document. Cost of the freight must be borne and paid by the Contractor unless otherwise stated.

All risk of loss, regardless of the cause, will remain with the Contractor until title to the Deliverable passes to the State. Unless otherwise provided in this Contract, the State will determine whether the Contractor provided each Deliverable required in this Contract and has fully met all work requirements of this Contract. Title to any Deliverables will pass to the State on Acceptance of the Deliverable.

C. RETURNED GOODS. When the use of this Contract involves the purchase of goods, the following applies:

1. Returned goods, when due to Contractor error (i.e. over-shipment, defective merchandise, unapproved substitution, etc.), shall be returned to the Contractor at the Contractor’s expense. The Contractor shall make arrangements to remove the returned goods from the ordering agency premises within seven (7) calendar days after notification. The Contractor shall not apply any restocking or other charges to the ordering agency. At the option of the ordering agency, replacement items may be accepted and will be shipped within seven (7) calendar days of notification. Failure of the Contractor to arrange for return of the items within the specified time will result in the items being deemed as abandoned property and the ordering agency will dispose of accordingly.

2. For orders of custom manufactured items, the Contractor must provide a production sample of the item to the ordering agency for acceptance. The production sample must be identical to the item to be provided. The ordering agency will provide written acceptance of the item prior to the Contractor continuing with production. Once delivery and acceptance has been completed and the ordering agency determines for any reason that any remaining quantities will not be used, the agency may request the return of the custom manufactured items. Acceptance of the return of custom manufactured items will be at the option of the Contractor. Failure of the Contractor to provide a production sample and obtain written approval form the ordering agency will result in the Contractor bearing all responsibility and costs associated with the return of these goods.

3. Returned goods of regular catalog stock merchandise, when due to agency error (i.e. over purchase, discontinued use, inventory reduction, etc.) will be accepted by the Contractor if notice is given by the agency within six (6) months of delivery and acceptance. All items to be returned must be unused and in their original containers and in suitable condition for resale. Return of regular stock catalog merchandise, when delivery and acceptance exceed six (6) months will be at the option of the Contractor.

D. CUSTOM DELIVERABLES. All custom work done by the Contractor and covered by this Contract will belong to the State with all rights, title, and interest in all intellectual property that comes into existence through the Contractor's work under this Contract being assigned to the State. Additionally, the Contractor waives any shop rights, author rights, and similar retained interests in any such custom developed materials. The Contractor must provide the State with all assistance reasonably needed to vest such rights of ownership in the State. However, the Contractor will retain ownership of all tools, methods, techniques, standards, and other development procedures, as well as generic and preexisting shells, subroutines, and similar material incorporated in any custom Deliverable ("Pre-existing Materials").

The Contractor grants the State a worldwide, non-exclusive, royalty-free, perpetual license to use, modify, sell, and otherwise distribute all Pre-existing Materials that are incorporated in any custom-developed Deliverable. The Contractor may not include in any custom Deliverable any intellectual property unless such has been created under this Contract or qualifies as Pre-existing Material. If the Contractor wants to incorporate any Pre-existing Materials in a custom Deliverable, the Contractor must disclose that desire to the State and obtain written approval from the State for doing so in advance. On the request of the Contractor, the State will incorporate any proprietary notice that Contractor may reasonably want for any Pre-existing Materials included in a custom Deliverable in all copies the State makes of that Deliverable. Subject to the limitations and obligations of the State with respect to Pre-existing Materials, the State may make all custom Deliverables available to the general public without any proprietary notices of any kind.

E. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its performance that arises from causes beyond its or its subcontractor’s control and without its or its subcontractor’s negligence or fault. For purposes of this Section, the term “force majeure event” includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes, fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional circumstances and events include epidemics, explosions, restraining of government and people, war, strikes, and other similar events or causes.

If the State or the Contractor cannot perform any part of its obligations under this Contract because of force majeure, that party is excused from those obligations, to the extent that performance is prevented by the force majeure event and that party took all commercially reasonable steps to mitigate or avoid the effects of the force majeure event. If there is only a delay in performance, such delay may extend only for that time lost because of the force majeure event. At any time a party is unable to perform those above-referenced obligations, it must also do the following:

1. Promptly notify the other party, in writing, of any material delay in performance due to a specified force majeure event;

2. Provide detailed information of the force majeure event;

3. Provide a proposed revised performance date to make up for performance delays due to the force majeure event. When applicable, the revised schedule must provide for performance time not to exceed the time lost as a result of the force majeure event.

F. CONTRACT PERFORMANCE MANAGEMENT. The Contracting and Ordering Agencies are responsible for administering and monitoring the Contractor’s compliance and performance on this Contract. Therefore, the Contractor must respond to complaints about performance of the obligations in this Contract to such entities in a timely manner. If the Contractor fails to perform any one of its obligations under this Contract, it will be in default.

If the Contractor fails to satisfactorily correct the performance or compliance issue within the time designated by the Agency, the Contracting Agency may employ all available options and remedies, including termination of the Contract if necessary to resolve the Contractor’s continued nonperformance or noncompliance.

G. QUALITY ASSURANCE. At the option of the Contracting or Ordering Agency samples may be taken from deliveries made and submitted for laboratory tests. The Ordering Agency will bear the cost of testing when samples are found to be in compliance with the Contract. If samples do not conform to the Contract, Contractor will bear the costs of testing and the terms and conditions of the Suspension/Termination provision of this Contract will be applied.

H. CONTRACT REMEDIES.

1. Actual Damages. The Contractor is liable to the State for all actual and direct damages caused by the Contractor’s default. The State may self-perform or buy substitute Deliverables from a third party for those that were to be provided by the Contractor. The State may recover the costs associated with acquiring substitute Deliverables, less any expenses or costs avoided by the Contractor’s default.

2. Liquidated Damages. If actual and direct damages are uncertain or difficult to determine, the State may recover liquidated damages. Unless otherwise specified, liquidated damages will be in the amount of 1% of the value of the order, Deliverable, or milestone that are the subject of the default, for every day that the default is not cured by the Contractor.

3. Deduction of Damages from Contract Price. The State may withhold payment and deduct all or any part of the damages resulting from the Contractor’s default from any part of the Contractor’s compensation still due on the Contract.

I. SUSPENSION/TERMINATION. In the event of suspension or termination the State will issue a notice. Any notice of suspension or termination, in full or in part, will be effective as specified in the notice. The Contractor must immediately cease all work, refuse any additional orders, and take all steps necessary to minimize the costs the Contractor will incur related to this Contract as directed by the notice.