Appendix D_MSU Denver Procurement Terms_&_Conditions.pdf

Metropolitan State University of Denver Procurement Terms and Conditions

Applicable to all Metropolitan State University of Denver Purchase Orders, Vendor Agreements, or other

Procurement Documentation to which they are attached.

1. Offer/Acceptance. If this purchase order (“PO”) refers to vendor’s bid or proposal, this PO is an ACCEPTANCE of vendor’s OFFER TO SELL in accordance with the terms and conditions of the “solicitation” identified in vendor’s bid or proposal. The solicitation includes an RFP, IFB, or any other form of order by buyer. If a bid or proposal is not referenced, this PO is an OFFER TO BUY, subject to vendor’s acceptance, demonstrated by vendor’s performance or written acceptance of this PO. Any COUNTER-OFFER TO SELL automatically CANCELS this PO, unless a change order is issued by buyer accepting a counter-offer. This PO shall supersede and control over any vendor form(s) or part(s) thereof included in or attached to any bid, proposal, offer, acknowledgment, or otherwise, in the event of inconsistencies or contradictions, regardless of any statement to the contrary in such form(s) or parts thereof. Within these Purchase Order Terms and Conditions, “PO”, “Contract”, and/or “Agreement” may all be used interchangeably to refer to the procurement document they are included in and apply to, and use of any one of them shall not limit their application to the associated procurement document.

2. Denial of Certain Terms. The Fiscal Rules governing this PO prohibit the State from contractually agreeing to certain provisions, including but not limited to provisions that require the State to indemnify, defend, save or hold harmless any party, be governed by or subject to any venue or choice of state law other than Colorado, waive the right to jury trial or agree to binding arbitration, and any such provision or provisions in any exhibits, addenda, or attachments attached to this PO or incorporated by reference, or hereinafter modified by Vendor, are null and void.

3. Click-Through Agreements. Vendor’s software or vendor’s website may contain a "click though" agreement which is integral to that product and/or website and which will require the State to click "I agree," or some similar action in order to proceed to use the software and/or website. It is hereby expressly agreed that all such click through, "shrink wrap," and/or online agreements, and any other such agreement mechanisms executed by the State in using the software and/or website are void and of no effect, do not create a binding assent by the State, do not modify this PO, and do not in themselves create a separate contract of any kind.

4. Conflicts of Interest. Vendor shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Vendor’s obligations hereunder. Vendor acknowledges that with respect to this PO, even the appearance of a conflict of interest is harmful to the State’s interests. Absent the State’s prior written approval, Vendor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Vendor’s obligations to the State hereunder. If a conflict or appearance exists, or if Vendor is uncertain whether a conflict or the appearance of a conflict of interest exists, Vendor shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the apparent conflict constitutes a breach of this PO.

5. Governmental Immunity. Liability for claims for injuries to persons or property arising from the negligence of the

State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act §24-10-101, et seq. and the risk management statutes, CRS §24- 30-1501, et seq., as amended. No term or condition of this PO shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the said Governmental Immunity Act., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended.

6. CORA Disclosure. To the extent not otherwise prohibited by federal law, this PO and the performance measures and standards under CRS §24-103.5-101, if any, are subject to public release and disclosure through the Colorado Open Records Act, CRS §24-72-101, et seq.

7. Safety Information. All chemicals, equipment and materials proposed and/or used in the performance of this PO shall conform to the requirements of the Occupational Safety and Health Act of 1970. Vendor shall furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery.

8. Changes. Vendor shall furnish products and/or services strictly in accordance with the specifications and price set forth for each item. This PO shall not be modified, superseded or otherwise altered, except in writing signed by purchasing agent and accepted by vendor. Each shipment received or service performed shall comply with the terms of this PO, notwithstanding invoice terms or acts of vendor to the contrary, unless this PO has been modified, superseded or otherwise altered in accordance with this section.

9. Delivery. Unless otherwise specified in the solicitation or this PO, delivery shall be FOB destination. Buyer is relying on the promised delivery date, installation, and/or service performance set forth in vendor’s bid or proposal as material and basic to buyer’s acceptance. If vendor fails to deliver or perform as and when promised, buyer, in its sole discretion, may cancel its order, or any part thereof, without prejudice to its other rights, return all or part of any shipment so made, and charge vendor with any loss or expense sustained as a result of such failure to deliver or perform as promised. Time is of the essence.

10. Intellectual Property. Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, or materials (collectively “materials”) delivered by vendor in performance of its obligations under this PO shall be the exclusive property of buyer. Ownership rights shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the materials. Vendor shall comply with all applicable Cyber Security Policies of the State of Colorado (the “State”), or buyer, as applicable, and all confidentiality and non-disclosure agreements, security controls, and reporting requirements.

11. Quality. Buyer shall be the sole judge in determining “equals” with regard to quality, price and performance. All products delivered shall be newly manufactured and the current model, unless otherwise specified.

12. Warranties. All provisions and remedies of the Colorado Uniform Commercial Code, CRS, Title 4 (“CUCC”), relating to implied and/or express warranties are incorporated herein, in addition to any warranties contained in this PO or the specifications. Vendor makes the following specific representations and warranties, each of which was relied on by the State in entering into this Contract.

a. Standard and Manner of Performance Vendor shall perform its obligations hereunder in accordance with the highest standards of care, skill and diligence in Vendor's industry, trade, or profession and in the sequence and manner set forth in this Contract.

b. Legal Authority - Vendor Signatory Vendor warrants that it possesses the legal authority to enter into this Contract and that it has taken all actions required by its procedures, and by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Contract, or any part thereof, and to bind Vendor to its terms. If requested by the State, Vendor shall provide the State with proof of Vendor's authority to enter into this Contract within 15 days of receiving such request.

c. Licenses, Permits, Etc.

Vendor represents and warrants that as of the Effective Date it has, and that at all times during the Term hereof it shall have and maintain, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorizations required by law to perform its obligations hereunder. Vendor warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Contract, without reimbursement by the State or other adjustment in Contract Funds. Additionally, all employees, agents, and Subcontractors of Vendor performing Services under this Contract shall hold all required licenses or certifications, if any, to perform their responsibilities. Vendor, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for Vendor to properly perform the terms of this Contract is a material breach by Vendor and constitutes grounds for termination of this Contract.

13. Inspection and Acceptance. Final acceptance is contingent upon completion of all applicable inspection procedures.

If products or services fail to meet any inspection requirements, buyer may exercise all of its rights, including those provided in the CUCC. Buyer shall have the right to inspect services provided under this PO at all reasonable times and places. "Services" as used in this section includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform to PO requirements, buyer may require vendor to perform the services again in conformity with PO requirements, without additional payment. When defects in the quality or quantity of service cannot be corrected by re-performance, buyer may (a) require vendor to take necessary action to ensure that future performance conforms to PO requirements and (b) equitably reduce the payment due vendor to reflect the reduced value of the services performed. These remedies do not limit the remedies otherwise available in this PO, at law, or in equity.

14. Cash Discount. The cash discount period will start from the later of the date of receipt of acceptable invoice, or from date of receipt of acceptable products/services at the specified destination by an authorized buyer representative.

15. Taxes. Buyer and the State are exempt from all federal excise taxes under Chapter 32 of the Internal Revenue Code [No. 84-730123K] and from all State and local government sales and use taxes [CRS, Title 39, Article 26, Parts I and II]. Such exemptions apply when materials are purchased for the benefit of State, except that in certain political subdivisions (e.g., City of Denver) vendor may be required to pay sales or use taxes even though the ultimate product or service is provided to buyer. Buyer shall not reimburse such sales or use taxes.

16. Payment. Buyer shall pay Vendor for all amounts due within 45 days after receipt of products or services and a correct notice of amount due. Interest on the unpaid balance shall begin to accrue on the 46th day at the rate set forth in CRS §24-30-202(24) until paid in full. Interest shall not accrue if a good faith dispute exists as to buyer’s obligation to pay all or a portion of the amount due. Vendor shall invoice buyer separately for interest on delinquent amounts due, referencing the delinquent payment, number of day’s interest to be paid, and applicable interest rate.

17. Erroneous Payments. At the State’s sole discretion, payments made to Vendor in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by Vendor, may be recovered from Vendor by deduction from subsequent payments under this Contract or other contracts, grants or agreements between the State and Vendor or by other appropriate methods and collected as a debt due to the State.

Such funds shall not be paid to any party other than the State.

18. Assignment and Successors. Vendor shall not assign rights or delegate duties under this PO, or subcontract any part of the performance required under this PO, without the express, written consent of buyer. This PO shall inure to the benefit of and be binding upon vendor and buyer and their respective successors and assigns. Assignment of accounts receivable may be made only upon written notice furnished to buyer.

19. Indemnification. If any article sold or delivered under this PO is covered by a patent, copyright, trademark, or application therefore, vendor shall indemnify and hold harmless buyer from any and all loss, liability, cost, expenses and legal fees incurred on account of any claims, legal actions or judgments arising out of manufacture, sale or use of such article in violation or infringement of rights under such patent, copyright, trademark or application. If this PO is for services, vendor shall indemnify, save, and hold harmless buyer, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related expenses, incurred as a result of any act or omission by vendor, or its employees, agents, subcontractors or assignees, arising out of or in connection with performance of services under this PO.

20. Independent Contractor. Vendor shall perform its duties hereunder as an independent contractor and not as an employee. Neither vendor nor any agent or employee of vendor shall be deemed to be an agent or employee of buyer. Vendor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through buyer and buyer shall not pay for or otherwise provide such coverage for vendor or any of its agents or employees. Unemployment insurance benefits will be available to vendor and its employees and agents only if coverage is made available by vendor or a third party. Vendor shall pay when due all applicable employment, income, and local head taxes incurred pursuant to this PO. Vendor shall not have authorization, express or implied, to bind buyer to any agreement, liability or understanding, except as expressly set forth herein. Vendor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by buyer, (c) disclose to MSU Denver if they are a PERA retiree prior to performing contracted duties in order for MSU Denver to properly report information, and if applicable, withhold contributions from payment of services to PERA, and (d) be solely responsible for its acts and those of its employees and agents.

21. Communication. All communication concerning administration of this PO, prepared by vendor for buyer’s use, shall be furnished solely to purchasing agent.

22. Compliance. Vendor shall strictly comply with all applicable federal and state laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

23. Insurance. Vendor shall obtain, maintain and ensure that each Subcontractor shall obtain and maintain insurance as specified in this section at all times during the Term of this Contract. All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies with an AM Best rating of A-VIII or better.

a. Workers' Compensation Workers' compensation insurance as required by state statute, and employers' liability insurance covering all of Vendor and Subcontractor employees acting within the course and scope of their employment.

b. General Liability Insurance Commercial general liability insurance written on an Insurance Services Office occurrence form, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b)

$1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire.

c. Automobile Liability Insurance Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit.

d. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: (a) $1,000,000 each occurrence; and (b) $1,000,000 general aggregate.

e. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Vendor and any Subcontractor hereunder.

f. Primacy of Coverage Coverage required of Vendor and each Subcontractor shall be primary over any insurance or self-insurance program carried by Vendor or the State.

g. Cancellation The above insurance policies shall include provisions preventing cancellation or nonrenewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Vendor and Vendor shall forward such notice to the State within seven (7) Business days of Vendor's receipt of such notice.

h. Subrogation Waiver All insurance policies secured and maintained by Vendor or its Subcontractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the Vendor (where applicable) and the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.

i. Certificates Vendor shall provide the State with certificates showing insurance coverage required hereunder within seven (7) Business Days of the Effective Date of this Contract. Vendor shall provide to the State certificates evidencing Subcontractor insurance coverage required hereunder within seven (7) Business Days following Vendor's execution of the subcontract. No later than 15 days prior to the expiration date of any such coverage, Vendor shall deliver to the State certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the Term of this Contract or any sub-contract, Vendor shall, within seven (7) Business Days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §23.

24. Termination Prior to Shipment. If vendor has not accepted this PO in writing, buyer may cancel this PO by written or oral notice to vendor prior to shipment of goods or commencement of services.

25. Termination for Cause. (a) If vendor refuses or fails to timely and properly perform any of its obligations under this

PO with such diligence as will ensure its completion within the time specified herein, buyer may notify vendor in writing of non-performance and, if not corrected by vendor within the time specified in the notice, terminate vendor's right to proceed with the PO or such part thereof as to which there has been delay or a failure. Vendor shall continue performance of this PO to the extent not terminated and be liable for excess costs incurred by buyer in procuring similar goods or services elsewhere. Payment for completed services performed and accepted shall be at the price set forth in this PO. (b) Buyer may withhold amounts due to vendor as buyer deems necessary to reimburse buyer for excess costs incurred in curing, completing or procuring similar goods and services.(c) If after rejection, revocation, or other termination of vendor's right to proceed under the CUCC or this clause, buyer determines for any reason that vendor was not in default or the delay was excusable, the rights and obligations of buyer and vendor shall be the same as if the notice of termination had been issued pursuant to termination under §26.

26. Termination in Public Interest. Buyer is entering into this PO for the purpose of carrying out the public policy of the

State, as determined by its Governor, General Assembly, and Courts. If this PO ceases to further the public policy of the State, buyer, in its sole discretion, may terminate this PO in whole or in part and such termination shall not be deemed to be a breach of buyer’s obligations hereunder. This section shall not apply to a termination for vendor’s breach, which shall be governed by §25. Buyer shall give written notice of termination to vendor specifying the part of the PO terminated and when termination becomes effective. Upon receipt of notice of termination, vendor shall not incur further obligations except as necessary to mitigate costs of performance. For services or specially manufactured goods, buyer shall pay (a) reasonable settlement expenses, (b) the PO price or rate for supplies and services delivered and accepted, (c) reasonable costs of performance on unaccepted supplies and services, and (d) a reasonable profit for the unaccepted work. For existing goods, buyer shall pay (e) reasonable settlement expenses, (f) the PO price for goods delivered and accepted, (g) reasonable costs incurred in preparation for delivery of the undelivered goods, and (h) a reasonable profit for the preparatory work. Buyer’s termination liability under this section shall not exceed the total PO price plus a reasonable cost for settlement expenses. Vendor shall submit a termination proposal and reasonable supporting documentation, and cost and pricing data as required by CRS §24-106-101, upon request of buyer.

27. PO Approval. This PO shall not be valid unless it is executed by purchasing agent. Buyer shall not be responsible or liable for products or services delivered or performed prior to proper execution hereof.

28. Fund Availability. Financial obligations of buyer payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. If this PO is funded in whole or in part with federal funds, this PO is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. Buyer represents that it has set aside sufficient funds to make payment for goods delivered in a single installment, in accordance with the terms of this PO.

29. Choice of Law. Colorado state laws, rules and regulations shall be applied in the interpretation, execution, and enforcement of this PO. The CUCC shall govern this PO in the case of goods unless otherwise agreed in this PO. Any provision included or incorporated herein by reference which conflicts with such laws, rules, and regulations is null and void. Any provision incorporated herein by reference which purports to negate this or any other provision in this PO in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Unless otherwise specified in the solicitation or this PO, venue for any judicial or administrative action arising out of or in connection with this PO shall be in Denver, Colorado. Vendor shall exhaust administrative remedies in CRS §24-109-106, prior to commencing any judicial action against buyer.

30. REPORTING - NOTIFICATION

Reports, Evaluations, and Reviews required under this §30 shall be in accordance with the procedures of and in such form as prescribed by the State.

A. Litigation Reporting Within 10 days after being served with any pleading in a legal action filed with a court or administrative agency, related to this Contract or which may affect Vendor's ability to perform its obligations hereunder, Vendor shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State's principal representative is not then serving, such notice and copies shall be delivered to the President of Metropolitan State University of Denver.

B. Noncompliance Vendor's failure to provide reports and notify the State in a timely manner in accordance with this §31 may result in the delay of payment of funds and/or termination as provided under this Contract.

C. Subcontracts Copies of any and all subcontracts entered into by Vendor to perform its obligations hereunder shall be submitted to the State or its principal representative upon request by the State. Any and all subcontracts entered into by Vendor related to its performance hereunder shall comply with all applicable federal and state laws and shall provide that such subcontracts be governed by the laws of the State of Colorado.

31. VENDOR RECORDS

A. Maintenance Vendor shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services or Goods hereunder. Vendor shall maintain such records until the last to occur of: (i) a period of three years after the date this Contract expires or is sooner terminated, or (ii) final payment is made hereunder, or (iii) the resolution of any pending Contract matters, or (iv) if an audit is occurring, or Vendor has received notice that an audit is pending, until such audit has been completed and its findings have been resolved (collectively, the "Record Retention Period").

B. Inspection Vendor shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe Vendor's records related to this Contract during the Record Retention Period to assure compliance with the terms hereof or to evaluate performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the Term of this Contract, including any extensions or renewals. If the Work fails to conform to the requirements of this Contract, the State may require Vendor promptly to bring the Work into conformity with Contract requirements, at Vendor's sole expense. If the Work cannot be brought into conformance by re-performance or other corrective measures, the State may require Vendor to take necessary action to ensure that future performance conforms to Contract requirements and exercise the remedies available under this Contract, at law or in equity, in lieu of or in conjunction with such corrective measures.

C. Monitoring Vendor shall permit the State, the federal government, and governmental agencies having jurisdiction, in their sole discretion, to monitor all activities conducted by Vendor pursuant to the terms of this Contract using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on-site checking, formal audit examinations, or any other procedures. All monitoring controlled by the State shall be performed in a manner that shall not unduly interfere with Vendor's performance hereunder.

D. Final Audit Report If an audit is performed on Vendor's records for any Fiscal Year covering a portion of the Term of this Contract, Vendor shall submit a copy of the final audit report to the State or its principal representative at the address specified herein.

32. CONFIDENTIAL INFORMATION-STATE RECORDS

Vendor shall comply with the provisions of this §32 if it becomes privy to State Records in connection with its performance hereunder.

A. Confidentiality Vendor shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all State Records that the State provides or makes available to Vendor for the sole and exclusive benefit of the State, unless those State Records are otherwise publicly available at the time of disclosure. Vendor shall not, without prior written approval of the State, use for Vendor's own benefit, publish, copy, or otherwise disclose to any third party, or permit the use by any third party for its benefit or to the detriment of the State, any State Records, except as otherwise stated in this Contract. Vendor shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Any request or demand by a third party for State Records in the possession of Vendor shall be immediately forwarded to the State's principal representative.

B. Notification Vendor shall notify its agents, employees, Subcontractors and assigns who may come into contact with State Records and State Confidential Information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before permitting them to access such records and information.

C. Use, Security, and Retention State Confidential information of any kind shall not be distributed or sold to any third party or used by Vendor or its agents in any way, except as authorized by this Contract or approved in writing by the State. Vendor shall provide and maintain a secure environment that ensures confidentiality of all State Records and other State Confidential Information wherever located. State Confidential Information shall not be retained in any files or otherwise by Vendor or its agents, except as permitted in this Contract or approved in writing by the State. Upon the expiration or earlier termination of this Contract, Vendor shall return State Records provided to Vendor or destroy such State Records and certify to the State that it has done so, as directed by the State. If Vendor is prevented by law or regulation from returning or destroying State Confidential Information, Vendor warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information after the expiration or earlier termination of this Contract.

D. Incident Notice and Remediation If Vendor becomes aware of any Incident, it shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. After an Incident, Vendor shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State, at no additional cost to the State.

E. Disclosure-Liability Disclosure of State Records or other State Confidential Information by Vendor for any reason may be cause for legal action by third parties against Vendor, the State or their respective agents. Vendor shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Vendor, or its employees, agents, Subcontractors, or assignees pursuant to this §32.

33. BREACH

A. Defined In addition to any breaches specified in other sections of this Contract, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner, constitutes a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Vendor, or the appointment of a receiver or similar officer for Vendor or any of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence thereof, shall also constitute a breach.

B. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the aggrieved Party may exercise any of the remedies set forth in §34, where applicable. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Contract in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis.

C. Vendor Remedies

If the State is in breach of any provision of this Contract and does not cure such breach, Vendor, following the notice and cure period in §33(8), shall have all remedies available at law and equity.

34. STATE REMEDIES

If Vendor is in breach under any provision of this Contract, the State shall have all of the remedies listed in this §34 in addition to all other remedies set forth in other sections of this Contract following the notice and cure period set forth in §33(8). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively.

A. Termination for Cause and/or Breach The State may terminate this entire Contract or any part of this Contract. Exercise by the State of this right shall not be a breach of its obligations hereunder. Vendor shall continue performance of this Contract to the extent not terminated, if any.

i. Obligations and Rights To the extent specified in any termination notice, Vendor shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Vendor shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Contract's terms. At the sole discretion of the State, Vendor shall assign to the State all of Vendor's right, title, and interest under such terminated orders or subcontracts. Upon termination, Vendor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Vendor in which the State has an interest. All materials owned by the State in the possession of Vendor shall be immediately returned to the State.

All Work Product, at the option of the State, shall be delivered by Vendor to the State and shall become the State's property.

ii. Payments The State shall reimburse Vendor only for accepted performance up to the date of termination. If, after termination by the State, it is determined that Vendor was not in breach or that Vendor's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Contract had been terminated in the public interest, as described herein.

iii. Damages and Withholding Notwithstanding any other remedial action by the State, Vendor shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Contract by Vendor and the State may withhold any payment to Vendor for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from Vendor is determined. The State may withhold any amount that may be due Vendor as the State deems necessary to protect the State against loss, including loss as a result of outstanding liens, claims of former lien holders, or for the excess costs incurred in procuring similar goods or services.

Vendor shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover.

B. Early Termination in the Public Interest The State is entering into this Contract for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Contract ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Contract in whole or in part without penalty or liability.

Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Contract by the State for cause or breach by Vendor, which shall be governed by §34(A) or as otherwise specifically provided for herein.

i. Method and Content The State shall notify Vendor of such termination to the contact name provided by Vendor on this PO. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Contract.

ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Vendor shall be subject to and comply with the same obligations and rights set forth in §34(A)(i).

iii. Payments If this Contract is terminated by the State pursuant to this §34(8), the State shall reimburse Vendor only for accepted performance up to the date of termination.

C. Remedies Not Involving Termination The State, in its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it:

i. Suspend Performance Suspend Vendor's performance with respect to all or any portion of this Contract pending necessary corrective action as specified by the State without entitling Vendor to an adjustment in price/cost or performance schedule.

Vendor shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by Vendor after the suspension of performance under this provision.

ii. Withhold Payment

Withhold payment to Vendor until corrections in Vendor's performance are satisfactorily made and completed.

iii. Deny Payment

Deny payment for those obligations not performed, that due to Vendor's actions or inactions, cannot be performed or, if performed, would be of no value to the State; provided, that any denial of payment shall be reasonably related to the value to the State of the obligations not performed.

iv. Removal Notwithstanding any other provision herein, the State may demand immediate removal of any of Vendor's employees, agents, or Subcontractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Contract is deemed to be contrary to the public interest or the State's best interest.

v. Intellectual Property If Vendor infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Contract, Vendor shall, at the State's option (a) obtain for the State or Vendor the right to use such products and services; (b) replace any Goods, Services, or other product involved with non-infringing products or modify them so that they become non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State.