Att A - Sample PA_final_DOJ approved.pdf

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 1 of 35

ATTACHMENT A

STATE OF OREGON

SAMPLE PRICE AGREEMENT

[PA NUMBER]

FOR

AUTO PARTS, EQUIPMENT, INSTALLATION AND RELATED

SERVICES

Between

DEPARTMENT OF ADMINISTRATIVE SERVICES

STATE PROCUREMENT SERVICES

(On behalf of Oregon State Agencies and Oregon Cooperative Procurement Program “ORCPP” Members)

Price Agreement Contract Administrator: Jordan Sim, State Procurement Analyst Address: 1225 Ferry Street SE, Salem, OR 97301 Phone: 971-375-5451 Email: Jordan.r.sim@das.oregon.gov

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title] Address: [Street Address] Phone: [Phone] Email: [Email] mailto:Jordan.r.sim@das.oregon.gov

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TABLE OF CONTENTS

SECTION 1: AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT

1.4 TERMINATION OF AGREEMENT

1.4.1 PARTIES’ RIGHT TO TERMINATE BY MUTUAL CONSENT

1.4.2 AGENCY RIGHT TO TERMINATE FOR CONVENIENCE

1.5 ORDERING INSTRUMENTS

1.6 PRICES

1.7 CONTRACTOR REPORTING AND PAYMENT REQUIREMETNS

1.8 INSURANCE

1.9 MISCELLANEOUS

SECTION 2: STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

2.2 PAYMENT

2.3 OVERDUE CHARGES

2.4 PAYMENT ADDRESS

2.5 INVOICES

2.6 PRICES

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

2.8 REPRESENTATIONS AND WARRANTIES

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

2.10 FOREIGN CONTRACTOR

2.11 SAFETY DATA SHEET

2.12 TIME IS OF THE ESSENCE

2.13 FORCE MAJEURE

2.14 FUNDS AVAILABLE AND AUTHORIZED

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.16 INDEMNIFICATION

2.17 EVENTS OF DEFAULT

2.18 REMEDIES

2.19 TERMINATION AND STOP WORK

2.20 ACCESS TO RECORDS

2.21 NOTICES

2.22 ORDERING ACKNOWLEDGEMENTS

2.23 GOVERNING LAW

2.24 VENUE; CONSENT TO JURISDICTION

2.25 SURVIVAL

2.26 SEVERABILITY

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

2.28 MERGER CLAUSE; AMENDMENT; WAIVER

2.29 ASSIGNMENT OF ANTITRUST RIGHTS

2.30 OREGON FALSE CLAIMS

SECTION 3: SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED

REPRESENTATIVE

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LIST OF EXHIBITS

EXHIBIT A - DESCRIPTION OF THE GOODS AND SERVICES

EXHIBIT A-1 – AWARDED GOODS & PRICE LIST

EXHIBIT B - PURCHASE ORDER FORM

EXHIBIT C - INSURANCE REQUIREMENTS

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This Price Agreement (“Agreement”) is between the State of Oregon (“State”), acting by and through its Department of Administrative Services, State Procurement Services (“DAS SPS” or “Agency”) on behalf of State Agencies and members of the Washington State’s Master Contract Usage Agreement (“MCUA”), and members of the Oregon Cooperative Purchasing Program (“ORCPP”) (together “Authorized Purchasers”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

SECTION 1: AGREEMENT

1.1 PARTIES

The only parties to this Agreement are Agency and Contractor.

1.2 DEFINITIONS

“Agreement” or "Price Agreement" means this agreement between Contractor and Agency under which Contractor agrees to hold prices, terms and conditions firm for a specified period of time for the benefit of Agency.

“Aftermarket Auto Parts” means new automotive parts that are not OEM Auto Parts.

Aftermarket Auto Parts are normally acquired at national, discount auto parts retailers, and many Aftermarket Auto Parts will have “OEM” prominently displayed but followed by a qualifier such as “meets OEM standards”. Such auto parts are simply claiming to have been manufactured to the same specifications as OEM Auto Parts, which specifications may be unpublished and unknown.

“Auto-Shop Equipment” Means equipment and tools used in a maintenance or repair shop for maintenance work, repair work, or both ,on motor vehicles.

“Best Value Analysis” is an evaluation process that involves consideration and evaluation of various factors to determine the fairest and most reasonable pricing offered for the goods and services to be purchased, which pricing results in the best value for the purchaser.

“Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Calendar Day” means contiguous days.

"Contract" means the entire agreement between Contractor and Agency, comprised of a signed Purchase Order and this Price Agreement, including any exhibits and amendments.

"Goods" means the individual items described in Exhibit A and A-1.

“MSRP” means the price at which the manufacturer suggests that retailers sell the product.

“OEM Auto Parts” means Original Equipment Manufacturer (“OEM”). New automotive parts manufactured by the original manufacturer of the equipment on which the part is installed.

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“Protected Class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

"Purchase Order" means the ordering instrument between Agency and Contractor substantially in the form attached as Exhibit B.

“Rebuilt Auto Parts” means major automotive parts with repaired subassemblies or component parts.

“Remanufactured Auto Parts” means old automotive parts refurbished into new condition.

This generally involves disassembling, cleaning, inspecting, replacing parts, and then re-engineering and testing the part before it is returned to the marketplace. Remanufactured Auto Parts must meet OEM standards to be returned to the marketplace. Remanufactured parts often carry a strong warranty that will mitigate concerns about purchasing “remade” or “refurbished” parts.

"Services" means the services, if any, described in Exhibit A and A-1 to be performed by Contractor under a Contract that are incidental to the purchase of Goods.

"Specifications" means the specific attributes of the Goods to be purchased or Services to be provided, if any, as described in Exhibit A and A-1.

"State" means the State of Oregon.

“Traction Chains” means devices that are fitted to the tires on the drive wheels of vehicles to provide maximum traction when driving through snow and ice. Traction Chains also may be referred to as snow chains or tire chains. Traction Chains are usually sold in pairs and must be purchased to match a particular tire size (tire diameter and tread width).

“Used, Recycled or Repurposed Auto Parts” means automotive parts from a salvage yard or parts broker that are not Rebuilt Auto Parts or Remanufactured Auto Parts. Used, Recycled or Repurposed Parts are sold through a variety of outlets, including franchised and independent dealers.

1.3 TERM OF AGREEMENT

The initial term of this Agreement begins on the date this Agreement has been signed by Agency and Contractor and all required approvals have been obtained (the “Effective Date”) and ends two (2) years after the Effective Date unless sooner terminated or extended as provided in this Agreement. Agency has the option to extend this Agreement. Agency must send Contractor a written notice exercising its option to extend no later than 30 Calendar Days before the expiration of the then-current term. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

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1.4 TERMINATION OF AGREEMENT

1.4.1 Parties’ Right to Terminate by Mutual Consent.

This Agreement may be terminated at any time by mutual written consent of Agency and Contractor.

1.4.2 Agency Right to Terminate for Convenience.

Agency may, in its sole discretion, terminate this Agreement, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

1.4.3 Effect of Termination.

A. Once this Agreement is terminated, Contractor shall not accept new Contracts or Purchase Orders.

B. Termination of this Agreement does not terminate the rights or obligations of any party to a Contract between Contractor and an Authorized Purchaser, executed before termination of this Agreement.

C. Termination of this Agreement terminates Contracts or “blanket” Purchase Orders in which Contractor is not legally required to deliver specific quantities of Goods at specific times.

1.5 ORDERING INSTRUMENTS

1.5.1 Authorized Purchasers may order Goods and/or Services during the Term of this Agreement using an Ordering Instrument in the form attached as Exhibit B. A Contract created by an ordering instrument consists of all terms specified and required by this Agreement.

1.5.2 Additional, different, or conflicting terms and conditions in any Purchase Order(s) or any other ordering instrument of either an Authorized Purchaser or the Contractor shall not vary the terms of this Agreement. Unless otherwise expressly agreed, Contractor’s online ordering terms and conditions will not change the terms and conditions of this Agreement or any Contract.

1.5.3 Subject to the provisions of this Agreement, Contractor shall accept ordering instruments from Authorized Purchasers that comply with the provisions of this Agreement until this Agreement terminates. Contractor may, but is not required to, accept an ordering instrument requesting a delivery schedule less than any minimum lead time, if any, specified in Exhibit A-1.

1.5.4 An ordering instrument is deemed accepted by Contractor unless Contractor rejects an ordering instrument within two (2) Business Days after it is received. Contractor may reject an ordering instrument: i) using the same means as were used to deliver the ordering instrument, or ii) by e-mail or facsimile if that information is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

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1.5.5 Accepted ordering instruments establish separate Contracts between Authorized Purchasers and Contractor and are subject to the provisions of this Agreement. As used in the Contracts, “Price Agreement” means this Agreement.

1.5.6 Nothing in this Agreement obligates any Authorized Purchaser to place any ordering instrument.

1.5.7 Contractor shall reject an ordering instrument that does not meet the requirements of this Agreement.

1.5.8 Authorized Purchasers who are agencies of the State of Oregon under DAS procurement authority may issue ordering instruments under this Price Agreement for any dollar amount without further delegation of procurement authority from DAS.

Notwithstanding the foregoing DAS delegation, Authorized Purchasers who are agencies of the State of Oregon must obtain all other necessary approvals, including but not limited to legal sufficiency approval as required.

1.6 PRICES

1.6.1 Except as provided in this Section, during the Term of this Agreement, Contractor shall offer Goods and related Services to Authorized Purchasers at prices that do not exceed the prices listed in Exhibit A.

1.6.2 Contractor and Agency may agree to lower prices for Goods and related Services.

Those lower prices apply only to applicable Contracts between Contractor and Authorized Purchasers.

1.6.3 Price Decrease.

A. Agency shall be given the immediate benefit of any price decrease Contractor offers to any other customer. Contractor shall promptly notify Agency of the amount and effective date of each decrease. This decrease applies to orders placed on or after the effective date of the decrease. Invoices must reflect prices in effect on the date an Authorized Purchaser’s Purchase Order document was written.

B. Should such decreased prices again increase during the term of the Price Agreement, including extensions, Agency shall honor the increase if acceptable documentation verifying the increase is submitted to Agency. Agency shall determine what constitutes acceptable documentation.

C. Contractor shall subtract from prices charged to Authorized Purchasers any unit price decrease that has been achieved or gained by Contractor, whether through the manufacturer or otherwise. Contractor shall give Agency the immediate benefit of the decrease. Contractor shall promptly notify Contract Administrator of the amount and effective date of the decrease.

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1.6.4 Price Adjustment.

A. Subject to the following, either party to this Agreement may request a price adjustment, in whole or in part. Approval of price adjustment is to the full discretion of the Agency.

B. Contractor may request price increases from Agency no more often than once in a twelve-month period, commencing on the Effective Date of this Agreement. Contractor must submit a request to the Contract Administrator in writing at least 60 Calendar Days before the proposed effective date of the increase. The request must show all proposed increases by line item and include supporting documentation acceptable to Agency.

Agency may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index or Consumer Price Index data or any other relevant manufacturer or industry data substantiating the increase. If this index becomes unavailable, DAS SPS shall substitute a proxy index. However, a price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement. The economic adjustment shall be calculated as follows:

New Price = Old Price X (Yearly Averaged Index / Base Average Index)

Indexes to be used:

CPI Title

CUUR0400SA0

(https://data.bls.gov/dataViewer/view/timeseries/CUUR0400SA0)

All items in West urban, all urban consumers, not seasonally adjusted

DAS SPS may request a price adjustment from Contractor in the event DAS SPS discovers that Contractor is in fact offering other customers lower prices or there has been a change in law or circumstances supporting a change. DAS SPS will send Contractor a written request with documentation, if any, to support the request.

1.7 CONTRACTOR REPORTING AND PAYMENT REQUIREMETNS

Contractor shall submit Volume Sales Reports (VSRs) and pay Vendor Collected Administrative Fees (VCAF) to DAS SPS as described in this section.

1.7.1 Volume Sales Reports. Contractor shall submit Volume Sales Reports at the end of each quarter using the process described at the following link:

https://www.oregon.gov/das/Procurement/Documents/VSRandVCAFInstructions.docx

1.7.2 Vendor Collected Administrative Fee. Contractor shall remit a Vendor Collected Administrative Fee, Pursuant to the process described at the following link:

https://www.oregon.gov/das/Procurement/Documents/VSRandVCAFInstructions.docx

The VCAF is a charge equal to two percent (2%) of Contractor’s gross total sales, less any credits, made to Authorized Purchasers during the reporting period.

https://data.bls.gov/dataViewer/view/timeseries/CUUR0400SA0 https://www.oregon.gov/das/Procurement/Documents/VSRandVCAFInstructions.docx https://www.oregon.gov/das/Procurement/Documents/VSRandVCAFInstructions.docx

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Contractor’s VCAF payments MUST reference the invoice number generated by DAS SPS.

1.8 INSURANCE

Contractor shall obtain insurance coverage as specified in Exhibit C and shall maintain the insurance throughout the term of this Agreement and all Contracts.

1.9 MISCELLANEOUS

1.9.1 Choice of Law.

The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.9.2 Designation of Forum and Consent to Jurisdiction.

Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

1.9.3 Amendments.

No amendment to this Agreement is valid unless it is in writing and signed by the parties.

1.9.4 Transfer.

Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of Agency. Agency’s consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of each of the parties, and, except as otherwise provided, their permitted legal successors and assigns.

1.9.5 Counterparts.

This Agreement may be executed in two or more counterparts, each of which is an original, and all of which together are deemed one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

1.9.6 Force Majeure.

Neither party is responsible for delay or default caused by an event beyond the control of the party whose performance is interfered with, and, which by the exercise of reasonable diligence, the party is unable to prevent. Agency may terminate this Agreement upon

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 10 of 35 written notice after determining such delay or default will reasonably prevent successful performance of this Agreement.

In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Agreement will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

1.9.7 Entire Agreement.

This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with respect to the subject matter.

1.9.8 Notices.

Except as otherwise expressly provided in this Agreement, any notices sent between the parties under this Agreement are effective only if in writing and addressed to the Contract Administrators at the addresses set forth on the Cover Page. A party may change its Contract Administrator upon written notice to the other party. The following methods of delivery between the parties may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid.

For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When choosing to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

1.9.9 Intended Beneficiaries.

Agency and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

1.9.10 Waiver.

The failure of Agency to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance does not constitute a waiver by Agency of that or any other provision nor is it a waiver of any subsequent violation

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 11 of 35 or nonperformance. Such failure to enforce or waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.9.11 Certification of Compliance with Tax Laws.

By signature on this Agreement, Contractor certifies that it has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor shall, throughout the duration of this Agreement and any Contract and any extensions thereof, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section, “tax laws” includes: (i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, 318 and 319; (ii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this subsection 1.8.11 constitutes a material breach of this Agreement and any Contract. Any failure to comply entitles Agency to terminate this Agreement or Contract, as applicable and to pursue and recover any and all damages that arise from the breach and the termination of this Agreement or Contract, and to pursue any or all of the remedies available under this Agreement or Contract, at law, or in equity, including but not limited to:

• Termination of this Agreement or Contract, as applicable, in whole or in part;

• Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s or Agency’s setoff right, without penalty; and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency or Agency may recover any and all damages suffered as the result of Contractor's breach of this Agreement or Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled products where possible. This includes paper, “PETE” and other materials as defined in ORS 279A.010 [1][gg], [hh] and [ii].

Contractor shall retain, maintain, and keep accessible all records relevant to this Agreement (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 12 of 35 this Section, Contractor shall permit Agency and its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

1.9.12 Performance Evaluations.

Agency may conduct evaluations of Contractor’s performance during the term of this Agreement. Agency will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. Agency may also maintain as part of that written record information obtained from Contractor during an exit interview following Agreement termination. Agency may provide copies of any documents in the written record to the Contractor and third parties upon request. Agency may use performance evaluations in any way it deems necessary, in its sole discretion, including but not limited to making responsibility determinations and decisions to award contracts.

SECTION 2: STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

The Contract consists of the ordering instrument and the provisions in Sections 2 and 3 of this Agreement. In the event of a conflict between the ordering instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 PAYMENT

Contractor shall look solely to Authorized Purchaser for payment of all amounts that may be due under this Contract. AUTHORIZED PURCHASER IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS CONTRACT. Subject to Authorized Purchaser’s acceptance of Goods and related Services, payment is due from Authorized Purchaser within 45 Calendar Days after the date of the invoice. Payments may be made via a purchasing card with no additional charge to Authorized Purchaser.

2.3 OVERDUE CHARGES

At Contractor’s option, it may assess overdue account charges to Authorized Purchaser up to a maximum rate of two-thirds of one percent per month (8% per annum) or the maximum allowed by law.

2.4 PAYMENT ADDRESS

Authorized Purchaser must send payments to the address specified in the Contractor’s invoice.

2.5 INVOICES

Contractor shall invoice Authorized Purchaser only after delivery of all Goods and related Services ordered. Contractor shall send all invoices to the address provided by Authorized Purchaser for that purpose. Contractor shall include all of the following in its invoice:

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• Price Agreement number.

• Ordering instrument number.

• Goods and related Services ordered.

• Date delivered.

• Volume or quantity of Goods delivered and related Services performed.

• The price per item of Goods and related Services.

• The total amount invoiced.

• The address to which payment is to be sent.

2.6 PRICES

Contractor represents all prices for Goods and related Services under the Contract are equal to or better than the prices listed in Exhibit A of the Agreement.

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

Authorized Purchaser may cancel an order in whole or in part before Goods and related Services are delivered or performed. Authorized Purchaser has ten (10) Calendar Days from date of delivery of the entire order within which to inspect and accept or reject the Goods and related Services. If the Goods and related Services are rejected, Authorized Purchaser shall provide Contractor with written notice of rejection. Notice of rejection must include itemization of apparent defects, including but not limited to (i) discrepancies between the Goods and related Services and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Goods (including late delivery) and related Services.

Notice of rejection must also specify when cure will be allowed.

Authorized Purchaser may elect to have Contractor deliver substitute conforming Goods at no additional cost to Authorized Purchaser. In such an event, Contractor shall deliver substitute conforming Goods within ten (10) Calendar Days of receipt of notice of rejection.

If the Goods and related Services are rejected or acceptance is revoked, Contractor shall refund any Contract payments that have been made with regard to the rejected Goods and related Services, and shall (at Contractor’s sole cost and expense) remove the Goods within ten (10) Calendar Days of receiving notice of rejection or revocation of acceptance.

Nothing contained in Section 2.7 precludes Agency from other remedies to which it may be entitled upon rejection or revocation of acceptance.

2.8 REPRESENTATIONS AND WARRANTIES

2.8.1 Officer Status, Insurance.

Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of Authorized Purchaser or Agency, as those terms are used in ORS 30.265. Contractor represents and warrants that Contractor has obtained and will maintain during the term of this Contract all insurance required by the Agreement.

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2.8.2 Debt Owned.

Contractor represents and warrants that it has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State.

2.8.3 Warranty on Materials, Design, Manufacture.

Contractor represents and warrants that all Goods are new, unused, current production models, and are free from defects in materials, design and manufacture. Contractor further represents and warrants that all Goods are in compliance with and meet or exceed all specifications in Exhibit A to the Price Agreement.

2.8.4 Warranty on Service Standards.

Contractor warrants that all Services required to be performed, if any, shall be performed in a good and workmanlike manner in accordance with standards prevalent in the industry.

2.8.5 Warranty of Title.

Contractor represents and warrants that all Goods are free and clear of any liens or encumbrances, that Contractor has full legal title to the Goods, and that no other person or entity has any right, title or interest in the Goods which is superior to or infringes upon the rights granted to Authorized Purchaser under this Contract.

2.8.6 Warranty on Safety and Health Requirements.

Contractor represents and warrants that Goods provided under this Contract comply with all applicable federal health and safety standards, including but not limited to, Occupational Safety and Health Administration (OSHA), and all Oregon safety and health requirements, including, but not limited to, those of the Oregon Consumer and Business Services Department.

2.8.7 Manufacturer Warranties.

Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to Authorized Purchaser at time of delivery at no charge.

2.8.8 Warranties are Cumulative.

Contractor’s warranties provided in this Section 2.8 are in addition to and not in lieu of any other warranties provided elsewhere in the Contract. All warranties provided for in this Contract are cumulative, will be deemed consistent and not in conflict, are intended to be given full force and effect and to be interpreted expansively to give the broadest warranty protection to Agency.

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2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

Contractor shall comply and shall cause all subcontractors to comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as they may be adopted or amended from time to time.

2.9.1 Noncompliant Goods.

In the event of a conflict between the specifications in this Agreement and applicable federal or State law, the law prevails over the specifications. Contractor shall make any modifications required to achieve compliance with law. When Contractor is notified or becomes aware of any required modifications, Contractor shall immediately notify Authorized Purchaser.

2.9.2 Recalled Goods or Components.

In the event any Goods or component parts are recalled by a regulatory body or the manufacturer, or discovered by Contractor not to be in compliance with the applicable specifications or law, Contractor shall immediately notify Authorized Purchaser of the recall or non-compliance, and shall provide copies of the notice or other documentation.

Upon notification, Authorized Purchaser may elect to do any of the following:

• Cancel any portion of the ordering instrument.

• Reject the Goods.

• Revoke its acceptance of the Goods.

• Require Contractor to complete necessary modifications, where applicable, in a timely manner, at no charge to Authorized Purchaser.

• Terminate the Contract.

In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods at its sole cost and expense and reimburse Authorized Purchaser for any payments made.

2.10 FOREIGN CONTRACTOR

If Contractor is not domiciled in or registered to do business in the state where Contractor is delivering Goods and/or providing Services under this Contract, Contractor shall promptly provide to the applicable Department of Revenue all information required by that Department relative to the Contract. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.11 SAFETY DATA SHEET

Contractor shall provide Authorized Purchaser at time of delivery with a Safety Data Sheet (SDS) as defined by the Occupational Safety and Health Administration (OSHA) for any Goods provided under the Agreement which may release or otherwise result in exposure to a

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 16 of 35 hazardous chemical under normal conditions of use. In addition, Contractor must properly label, tag or mark such Goods. Additionally, Contractor shall deliver EPA labels and SDS information if available and as requested by Authorized Purchaser.

2.12 TIME IS OF THE ESSENCE

Time is of the essence for Contractor’s performance obligations under this Contract.

2.13 FORCE MAJEURE

Neither Authorized Purchaser nor Contractor shall be held responsible for delay or default caused by an event which is beyond the party’s reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement. Authorized Purchaser may terminate this Contract upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

In the event of such delay, Contractor’s obligations are suspended to the extent of and for the duration of such cause. However, Contractor shall take all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Contract will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

2.14 FUNDS AVAILABLE AND AUTHORIZED

If Authorized Purchaser is an agency of the State of Oregon, payment obligations under this Contract are conditioned upon Authorized Purchaser’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract. At the time the ordering instrument was issued, Authorized Purchaser had sufficient funds available and authorized to make payments under this Contract.

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES

AND WITHHOLDING

2.15.1 Contractor is an independent contractor. Although Authorized Purchaser reserves the right (i) to determine (and modify) the delivery schedule for the Goods and related Services and (ii) to evaluate the quality of completed performance, Authorized Purchaser 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 obligations required by this Contract.

2.15.2 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Authorized Purchaser will not withhold from such compensation or

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2.16 INDEMNIFICATION

2.16.1 Contractor shall defend, save, hold harmless, and indemnify Authorized Purchaser, Agency, the State and their officers, employees and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in connection with any petition for review) (collectively, “Claim”) which may be brought or made against any Authorized Purchaser, or its officers, employees or agents, arising out of or related to (i) any personal injury, death or property damage caused by any defect in the Goods or any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to this Contract, (ii) any act or omission by Contractor that constitutes a material breach of this Contract, including without limitation any breach of warranty, or (iii) the infringement of any patent, copyright, trade secret or other proprietary right of any third party by delivery or use of the Goods.

Authorized Purchaser shall promptly notify Contractor in writing of any claim of which Authorized Purchaser becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by (i) the negligent or willful misconduct of Authorized Purchaser, or (ii) Authorized Purchaser’s modification of Goods without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods.

2.16.2 The Oregon Attorney General must give written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State or its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including its officers, employees and agents, at any time when, in the State’s sole discretion, it determines (i) proposed counsel is prohibited from the particular representation contemplated; (ii) Counsel is not adequately defending or able to defend the interests of the State, its officers, employees or agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor’s obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) above.

2.17 EVENTS OF DEFAULT

2.17.1 By Contractor.

Contractor will be in default of the provisions of a 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;

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B. Contractor has undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State; or

C. Contractor no longer holds a license or certificate that is required for Contractor to perform Contractor’s obligations under this Contract; or

D. Contractor fails to comply with its obligations in Section 2.27, Prompt Payment, and has not cured the non-performance within thirty (30) Calendar Days of Authorized Purchaser’s written notice to cure.

E. Contractor violates any provision, covenant, warranty, obligation or certification or fails to perform under this Contract, provided however that Contractor may cure the default within the period specified in Authorized Purchaser’s notice of default when Authorized Purchaser determines the default is curable by Contractor.

2.17.2 By Authorized Purchaser.

Authorized Purchaser will be in default of a Contract if:

A. Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Contract, and Authorized Purchaser fails to cure such failure within ten (10) Business Days after delivery of Contractor’s notice or such long period as Contractor may specify in such notice; or

B. Authorized Purchaser violates any provision, covenant, warranty, or obligation or fails to perform under this Contract and such breach is not cured within ten (10) Business Days after delivery of Contractor’s notice of breach or such longer period as Contractor may specify in such notice.

2.18 REMEDIES

2.18.1 Authorized Purchaser’s Remedies.

If Contractor is in default, in addition to the remedies afforded elsewhere in this Contract, Authorized Purchaser may recover any and all damages suffered as the result of Contractor’s breach, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to 72.7170. Authorized Purchaser may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

A. Stop Work or Suspend delivery of Goods or performance of related Services as provided in Section 2.19.2; or

B. Termination of the Contract as provided in Section 2.19; or

C. Withholding all monies due for invoiced Goods that Contractor is obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively; or

D. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or

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E. Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Good to recover liquidated and delinquent debt owed to the State or any department or agency of the State. Offsets or garnishment may be initiated only after the Contractor has been given: i) written notice of the type and amount of the debt, the intention of the State to use administrative offset or garnishment to collect the debt, and an explanation of the debtor's rights under applicable law; and ii) the opportunity to make a written agreement to repay the debt; or

F. Exercise of its right of setoff, and withholding of monies otherwise due and owing in an amount equal to Authorized Purchaser’s setoff without penalty to Authorized Purchaser.

G. Withholding of Amounts Due Subcontractors. If Contractor does not satisfy its prompt payment obligations to a subcontractor within thirty (30) Calendar Days after receiving written notice from Authorized Purchaser of Contractor’s failure to perform its prompt payment obligations, Authorized Purchaser may withhold, from any amounts otherwise payable and due to Contractor, an amount equal to five percent of an amount not paid to a subcontractor in accordance with Contractor’s prompt payment obligations, plus interest at 5% per annum.

H. Authorized Purchaser may pay, from the withheld amounts, amount due to the subcontractor plus interest. An Authorized Purchaser payment under this section is a deduction from Authorized Purchaser’s payment obligation to Contractor under this Price Agreement, and Contractor will have no claim against Authorized Purchaser for any amounts paid to its subcontractor under this section.

I. This subsection imposes no obligation on Authorized Purchaser to withhold any sums, or to pay any sums to any subcontractor , and creates no third-party beneficiary status or right to enforce on the part of any subcontractor.

Authorized Purchaser may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

2.18.2 Contractor’s Remedies.

If Authorized Purchaser terminates a Contract, or if Authorized Purchaser is in default under Section 2.17.2 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.19.3, Contractor’s sole remedy is: (a) A claim against Authorized Purchaser for the unpaid purchase price for Goods delivered and related Services performed and accepted by Authorized Purchaser, (b) with respect to Services compensable on an hourly basis, a claim for unpaid invoices, hours worked but not yet billed and authorized expenses for services completed and accepted by Authorized Purchaser, and (c) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of Services completed and accepted by Authorized Purchaser, less previous amounts paid and any claim(s) which Authorized Purchaser has against Contractor. If previous amounts paid to

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Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Authorized Purchaser immediately upon written demand.

2.19 TERMINATION AND STOP WORK

2.19.1 By Mutual Agreement.

A Contract may be terminated at any time by mutual agreement of Authorized Purchaser and Contractor.

2.19.2 Rights of Authorized Purchaser.

A. Authorized Purchaser may, in its sole discretion, send Contractor a notice to stop work or to suspend delivery of Goods or performance of related Services for a period of up to ninety (90) Calendar Days after the date of the notice, or for any further period to which the parties may agree.

B. Upon receipt of the notice, Contractor shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the Stop Work Order notice. Within a period of ninety (90) Calendar Days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Authorized Purchaser will either cancel or modify the Stop Work Order by a supplementary written notice and amend the Contract; or terminate the work the Contract.

C. Authorized Purchaser may, in its sole discretion, terminate a Contract for convenience upon thirty (30) Calendar Days prior written notice.

D. Authorized Purchaser may terminate a Contract immediately upon notice to Contractor, or at such later date as Authorized Purchaser may establish in such notice, upon the occurrence of any of the following events: (a) Authorized Purchaser fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Contract; (b) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Goods by Authorized Purchaser under the Agreement is prohibited, or Authorized Purchaser is prohibited from paying for such Goods from the planned funding sources; or (c) Contractor is in default of the Contract under Section

2.17.1 and has failed to cure the default. Upon receipt of written notice of termination, Contractor shall stop performance under the Contract if, and as, directed by Authorized Purchaser.

2.19.3 Rights of the Contractor.

Contractor may terminate a Contract upon thirty (30) Calendar Days prior written notice to the Authorized Purchaser, if Authorized Purchaser is in default of a Contract as described in Section 2.17.2.

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2.20 ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to this Contract (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later.

Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this Section, Contractor shall permit the Agency, their duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.21 NOTICES

Except as otherwise expressly provided in this Contract, any notices sent between Authorized Purchaser and Contractor are effective only if in writing and addressed to the assigned Authorized Representatives of both parties as designated in the Contract. A party may change its Authorized Representative upon written notice to the other party. The following methods of delivery may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid. For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When parties choose to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

2.22 ORDERING ACKNOWLEDGEMENTS

The parties acknowledge and agree other than designation of order quantities, types of Goods and related Services, delivery destination, dates of order, and scheduled delivery of other performance, any purchase orders or acknowledgement documents are simply for the convenience of the parties to initiate or confirm an order of Goods and related services under this Contract and no other terms or conditions contained in those documents are of any force, effect or are binding upon the parties.

2.23 GOVERNING LAW

This Contract is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws.

2.24 VENUE; CONSENT TO JURISDICTION

2.24.1 State Venue; Consent to Jurisdiction.

Any claim, action, suit or proceeding (collectively, “Claim”) between an Authorized Purchaser that is an agency of the State of Oregon and Contractor that arises from or relates to this Contract shall…