Att A - Sample Price Agreement S-10700-00001796 v3~2.docx

EXHIBIT C

INSURANCE REQUIREMENTS

State of Oregon

PRICE AGREEMENT [PA NUMBER]

FOR

seismic isolation platform goods and services

BETWEEN

STATE OF OREGON, DEPARTMENT OF ADMINISTRATIVE SERVICES, ENTERPRISE GOODS AND SERVICES, PROCUREMENT SERVICES ON BEHALF OF THE DEPARTMENT OF ADMINISTRATIVE services, ENTERPRISE INFORMATION SERVICES, data center services

AND

[CONTRACTOR NAME]

Table of Contents

LIST OF EXHIBITS

Exhibit A - Goods, Services and Prices

Exhibit B – Purchase Order

Exhibit C - Insurance Requirements

This Price Agreement (“Agreement”) is entered into between the State of Oregon (“State”), acting by and through its Department of Administrative Services, Enterprise Goods and Services, Procurement Services (“DAS”) on behalf of the Department of Administrative Services, Enterprise Information Services, Data center Services, (“DCS” or “Agency”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

RECITALS

A. Agency desires to procure seismic isolation platform Goods and Services.

B. To that end, DAS, on behalf of Agency, issued Invitation to Bid #S-10700-00001796.

C. Contractor submitted the lowest, Responsive Bid.

D. DAS and Contractor now desire to memorialize the terms and conditions pursuant to which (i) Contractor will provide the Goods and Services as may be requested by Agency from time to time; and (ii) Agency will pay for the Goods and Services.

THEREFORE, DAS and Contractor agree to the following:

TERMS AND CONDITIONS FOR PRICE Agreement The terms and conditions of this Section 1 are applicable to this Agreement regardless of whether one or more Contracts have been entered into by Contractor and Agency.

PARTIES

The only parties to this Agreement are DAS and Contractor.

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

“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. State holidays and business closure days can be found at the following URL: https://www.oregon.gov/das/pages/buildingclosure.aspx “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 and all of the Price Agreement’s exhibits and amendments.

"Goods" means the individual items described in Exhibit A.

“Purchase Order” means the form attached to this Agreement as Exhibit B and which shall be used by Agency and Contractor for ordering, and fulfilling orders of, Goods and any related Services under this Agreement.

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

"Services" means the services, if any, described in Exhibit A 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.

"State" means the State of Oregon.

Term of Agreement The initial term of this Agreement begins on the date this Agreement has been signed by all parties and all required approvals have been obtained (the “Effective Date”) and ends 2 years from the Effective Date unless sooner terminated or extended as provided in this Agreement. Agency has the option to extend this Agreement for additional term(s), up to a maximum of 10 years. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

Termination of Agreement Parties’ Right to Terminate by Mutual Consent. This Agreement may be terminated at any time by mutual written consent of DAS and Contractor.

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

Termination for Cause. DAS may terminate this Agreement immediately upon written notice to Contractor, or at such later date as it may establish in such notice if Contractor (i) violates any certification, covenant, warranty under Sections 1.9 or 1.10.7, (ii) breaches its obligations under Sections 1.8, 2.2.1, 2.5, 2.7, 4, (iii) if Contractor is found in default under Section 2.14 of this Agreement, or (iv ) if federal or State laws, regulations, rules, or guidelines are modified or interpreted in a way that Agency’s purchase of the Goods or Services offered by Contractor under this Agreement are prohibited.

Remedies. In the event DAS terminates this Agreement for cause under Section 1.4.3 above, DAS may, at its option, pursue any or all of the remedies set forth 2.15.1.1 through 2.15.1.6 below, as well as any remedies that may be available to DAS at law or in equity. DAS may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

Effect of EXPIRATION OR Termination OF AGREEMENT Once this Agreement expires or is terminated, Contractor shall not accept new Contracts or Purchase Orders from Agency.

Expiration or termination of this Agreement does not terminate any Contract for Goods that have been ordered and are in transit for delivery to Agency at the time of termination.

Expiration or termination of this Agreement terminates any and all Contracts or “blanket” Purchase Orders in which Contractor is not legally required to deliver specific quantities of Goods at specific times.

ORDERING instruments From time to time, Agency may acquire the Goods and/or Services under the Agreement by issuing a Purchase Order, Work Order Contract or other ordering instrument (Contract). A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additional, different, or conflicting terms and conditions in any Purchase Order(s) or any other ordering instrument of Agency or Contractor shall not vary the terms of this Agreement. In no event shall Contractor’s online ordering terms and conditions change the terms and conditions of this Agreement or any Contract.

Subject to the provisions of this Agreement, Contractor shall accept ordering instruments from Agency 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.

An ordering instrument is deemed accepted by Contractor unless Contractor rejects an ordering instrument within 3 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.

Accepted ordering instruments establish separate Contracts between Agency and Contractor and regardless of whether expressly stated, incorporate the terms and conditions of this Agreement.

Execution of this Agreement is no guarantee that Agency will issue any ordering instruments against this Agreement. Agency and DAS make no guarantee or representation that any specific quantity of Goods, if any, will be purchased under this Agreement.

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

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

The parties may agree to lower prices for Goods and related Services. In such event, the agreed upon lower prices may apply only to the applicable Contract between Contractor and Agency.

Price Decrease Agency shall be given the immediate benefit of any price decrease Contractor offers to any other customer. Contractor shall promptly notify DAS of the amount and effective date of each decrease. This decrease applies to orders placed on or after the effective date of the decrease provided to the other customer.

Should such decreased prices again increase during the term of the Agreement, DAS shall honor the increase if acceptable documentation verifying the increase is submitted to DAS. DAS shall determine, in its reasonable discretion, what constitutes acceptable documentation.

If, during the Term of this Agreement, Contractor’s unit price for the Goods decreases, whether as a result of a decrease in manufacturing or other expenses, Contractor shall promptly notify DAS and Agency of the decrease in unit price and pass through the decrease in pricing to Agency effective as of date Contractor benefitted from the decrease.

Price Increases. Commencing on the one-year anniversary of the Agreement Effective Date, Contractor may request price increases from DAS, which going forward shall not be made more often than once per calendar year. Contractor may seek a price increase of no more than 4 percent for increased labor and operating costs. Contractor must submit any such request to DAS 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 DAS. DAS 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. However, Contractor shall not request any price increase that produces a higher profit margin for Contractor than at the beginning of the initial term of the Agreement.

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.

REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants that Contractor:

Is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265;

Has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State;

Shall maintain the insurance coverage specified in Exhibit C throughout the Term of the Agreement.

General Terms and COnditions Assignment of Agreement. Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement or any resulting Contract without first obtaining the written consent of DAS. DAS’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.

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.

Force Majeure. Neither DAS nor Contractor will be liable to the other for any failure or delay of performance of any obligations under this Agreement when such failure or delay is wholly or principally caused by acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, fires, floods, earthquakes, or other similar natural disasters, war, riots, or strikes. Both DAS and Contractor will make all reasonable efforts to remove or eliminate such a cause of delay or default and upon the cessation of the cause diligently pursue performance of their respective obligations under this Contract. DAS may terminate this Agreement upon written notice to Contractor after determining, in its reasonable discretion, that such delay or default will likely prevent successful performance of the Agreement.

Governing Law; Venue and Jurisdiction. For any claim or controversy arising out of this Agreement standing alone (i.e. not related to any Contract), Sections 2.19 and 2.20 are incorporated by reference as though fully set forth in this Section.

Notices. Except as otherwise expressly provided in this Agreement, any notices or other communications between DAS and Contractor regarding this Agreement are effective only if in writing and addressed to the authorized representatives at the addresses set forth in Section 3 to this Agreement. DAS and Contractor may each change its authorized representative upon written notice to the other party. All notices and communications required to be made under this Section shall be delivered in accordance with Sections 2.18.1 through 2.18.3 below.

Intended Beneficiaries. DAS 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. Agency is an intended beneficiary of this Agreement.

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 305.380(4), 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.

This Agreement and any resulting Contract(s) that may be entered into with Agency will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including (i) garnishing Contractor’s compensation under this Agreement or Contract or (ii) exercising a right of setoff against Contractor’s compensation under this Agreement or Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

Recycled Products/Materials. 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].

Records Retention. 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 this Section, Contractor shall permit DAS, Agency, and their duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

Merger Clause. Until a Contract is formed in accordance with Section 1.6 of this Agreement, this Agreement constitutes the entire agreement between Contractor and DAS on the subject matter of this Agreement. Each Purchase Order that is accepted by Contractor in accordance with Section 1.6 above of this Agreement, forms a separate Contract. There are no understandings, agreements, or representations, oral or written, not specified in this Agreement on the subject matter.

Amendments. This Agreement may be amended, modified, or supplemented only by a written amendment signed by DAS and Contractor that, if required by applicable law, has been approved for legal sufficiency by DOJ in writing. Any amendment that provides for additional Goods or Services may only provide for Goods or Services (or both) that directly related to the scope of Goods and Services described in Special Procurement 1298-21, and no amendment will be effective until all requisite signatures and approvals are obtained in writing.

Waivers. The failure of DAS or Contractor to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance will not constitute a waiver by, as applicable, DAS or Contractor of that or any other provision nor will it be deemed to be a waiver of any subsequent violation or nonperformance. No waiver, consent, modification, or change of terms of this Agreement will bind either party unless in writing and signed by both parties and, with respect to DAS’s waiver or consent, all necessary State approvals have been obtained. Such waiver, consent, modification, or change, if made, will be effective only in the specific instance and for the specific purpose given.

Performance Evaluations. Agency or DAS, or both, may conduct evaluations of Contractor’s performance during the term of this Agreement. Agency or DAS, or both, will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. Agency or DAS, or both, may also maintain as part of that written record information obtained from Contractor during an exit interview following Agreement termination. Agency or DAS, or both may provide copies of any documents in the written record to the Contractor and third parties upon request. Agency or DAS, or both, 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.

Assignment of Antitrust Rights. Contractor irrevocably assigns to the State of Oregon any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the Contractor for the purpose of carrying out the Contractor's obligations under this Contract, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action. Contractor shall require any subcontractors hired to perform any of Contractor's duties under this Agreement to irrevocably assign to the State of Oregon, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the subcontractor for the purpose of carrying out the subcontractor's obligations to the Contractor in pursuance of this Agreement, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action.

Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this Agreement, including the procurement process relating to this Agreement, which constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Agreement, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Agreement and upon acceptance of a Purchase Order, such acceptance shall serve to recertify the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Agreement. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or Agency or DAS under this Agreement or any other provision of law.

Terms AND CONDITiONS for Contracts CONTRACT DOCUMENTS; ORDER OF PRECEDENCE. In accordance with Section 1.6, upon Contractor’s acceptance of an ordering instrument issued by Agency, a Contract is formed between Agency and Contractor. The terms and conditions of this Agreement (inclusive of Exhibits A through C) are the terms and conditions that comprise the terms and conditions of any and all resulting Contract(s) and are incorporated into each ordering instrument issued by Agency and accepted by Contractor.

A Contract consists of: (i) the ordering instrument and (ii) the provisions of this Agreement as identified in Section 2.1 above. In the event of a conflict between the ordering instrument and this Agreement, this Agreement takes precedence.

No Additional Terms and Conditions; Ordering Acknowledgements. The parties acknowledge and agree that all ordering instruments shall only identify the following: (i) order quantities, (ii) the types of Goods, (iii) any Services that may be related to the Goods ordered, (iv) delivery destination, (v) dates of order, (vi) scheduled delivery of the Goods and Services, and (vii) any (special) delivery instructions. Any Ordering Document that includes any terms and conditions other than those identified in this Section shall have no force or effect, shall not bind the parties, and shall be void.

PRICING; INVOICES; PAYMENT

Pricing. The prices charged to Agency for any Goods and Services that may be ordered in a Purchase Order shall not exceed those identified in Exhibit A to this Agreement.

Agency Responsible for Payment. Contractor shall look solely to Agency for payment of all amounts that may be due under this Contract. AGENCY IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS CONTRACT. Subject to Agency’s acceptance of Goods and any related Services, payment is due from Agency within 45 Calendar Days after the date of receipt of an accurate invoice.

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

Invoices. Contractor shall invoice Agency only after delivery of all Goods and any related Services have been completed. Contractor may assess late fees on any past-due account in accordance with ORS 293.462. Contractor shall email all invoices to DEQEXP@deq.state.or.us. Contractor shall include all of the following in its invoice:

i. Price Agreement number,

ii. Ordering instrument number,

iii. Type of Goods ordered,

iv. Quantity of Goods delivered,

v. Date Goods were delivered,

vi. Price per unit of Goods,

vii. Total price of all Goods delivered,

viii. Services ordered,

ix. Date Services were completed and by whom,

x. Price of Services delivered,

xi. The total amount invoiced for Services and Goods delivered,

xii. A written certification that Contractor is in compliance with its Prompt Payment obligations under Section 2.5 of this Agreement,

xiii. The address to which payment is to be sent, and

xiv. Name, email address, and telephone number of person who is responsible for resolving invoice/billing concerns or questions Payments. Agency shall pay all accurate invoices within 45 days of receipt. All payments shall be delivered to the address identified in the applicable invoice.

SHIPPING AND DELIVERY. Delivery of all Goods shall be FOB destination. Shipping charges shall be pre-paid and charged separately. Title shall not pass until the Goods are received by Agency and acceptance is made in accordance with Section 2.4 of this Agreement. Contractor shall ship orders within five (5) Business Day of receipt of Agency’s Purchase Order (Exhibit B) or as otherwise agreed upon in writing.

CANCELLATION, INSPECTIONS, AND ACCEPTANCE. Agency may cancel an order in whole or in part before Goods and related Services are delivered or performed without any liability to Contractor. Agency 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, Agency 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 whether and when cure will be allowed. Notice of rejection must be received by Contractor within five days after the time for inspection has expired.

Agency may elect to have Contractor deliver substitute conforming Goods at no additional cost to Agency. In such 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 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 this Section 2.4 precludes Agency from exercising any of its other rights or remedies to which Agency may be entitled upon rejection or revocation of acceptance.

PROMPT PAYMENTS TO SUBCONTRACTORS. Pursuant to ORS 279B.220(1), Contractor shall make “Prompt Payment” to all subcontractors supplying Contractor with the labor, services, goods, or materials required to be provided under this Agreement and any resulting Contract.

“Prompt Payment” means Contractor’s payment of amounts owing to its subcontractor(s) within 15 Calendar days after receipt of related payment from Agency. However, if Contractor and Contractor’s subcontractor(s) have agreed to a different payment schedule, then the agreed upon payment schedule establishes what constitutes “Prompt Payment.”

Contractor’s obligation to make Prompt Payment is subject to: (i) (a)satisfactory performance of the subcontracted services, or (b) subcontractor’s timely delivery of conforming goods or materials, or (iii) both (a) and (b); and (ii) Contractor’s receipt of an accurate invoice from the subcontractor for the services, goods, or materials, or all or any combination thereof, as may be applicable.

Contractor’s obligation to make Prompt Payment does not extend to amounts that are subject to a good faith dispute between Contractor and an applicable subcontractor.

Contractor shall include, in each subcontract related to the Goods or Services agreed to under this Agreement, provisions that require Contractor to make Prompt Payments to its Subcontractor(s) as required under this Agreement.

REPRESENTATIONS AND WARRANTIES

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.

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.

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 Agency under this Contract.

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.

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

Software License. To the extent the Goods contain any software, Contractor hereby grants to Agency, or shall ensure that Agency receives, a perpetual, irrevocable, non-exclusive, non-transferable, royalty-free license to use such software (and documentation and associated manuals) (the “Software”) for the Goods.

In the event the Goods include third party intellectual property and unless otherwise agreed, Contractor shall ensure that Agency receives a license to use the third party intellectual property sufficient to fulfill the business objectives, requirements, and specifications identified in this Agreement. Agency shall have the right to review the proposed license agreement and negotiate terms with the licensor; upon agreement to the terms, Agency will be bound by such license agreement. If Agency and licensor cannot reasonably agree to terms, Agency, in its sole discretion, may return the Goods to Contractor (without any liability to Contractor), and Contractor shall provide a full refund including any shipping and handling charges.

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

COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS. Contractor shall comply with all federal (including those set forth in Exhibit D [Provisions Required by Federal Law]), state, and local laws, regulations, and ordinances applicable to this Contract as they may be adopted or amended from time to time.

Compliance with Executive Order 21-29. Contractor shall comply with State of Oregon Executive Order 21-29 (“EO 21-29”), COVID-19 Vaccination Requirement for State Executive Branch. Contractor certifies that for the term of the Price Agreement or the duration of EO 21-29, whichever expires or terminates first, each Worker who provides goods and services at an ODOT worksite is Fully Vaccinated against COVID-19 unless granted an exception in accordance with EO 21-29. Contractor further agrees, as a material condition of this Price Agreement, to maintain Proof of Vaccination for each Worker providing goods or services at an ODOT worksite is Fully Vaccinated or has been granted an exception and to promptly provide written certification of compliance on the request of the State. Contractor’s compliance with this Section is a material term of this Price Agreement, and Contractor’s failure to comply constitutes a breach entitling ODOT to terminate this Price Agreement for cause. Capitalized terms used in this Section that are not defined in this Price Agreement have the meanings assigned to them in EO 21-29. To facilitate Contractor’s compliance hereunder, Contractor may consult the State’s FAQs regarding this matter and EO 21-29 at the following URL: https://www.oregon.gov/das/Procurement/Pages/contractorvaccinations.aspx.

Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.212 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause.

As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

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

Recalled Goods or Components. In the event any Goods or component parts are recalled by a regulatory body or by the manufacturer or in the event Contractor discovers that any Goods or component parts are not in compliance with the applicable specifications or law, Contractor shall promptly notify Agency of the recall or non-compliance and shall provide copies of the notice or other documentation. Upon notification, Agency may elect to do any of the following:

xv. Cancel any portion of the ordering instrument,

xvi. Reject the Goods,

xvii. Revoke its acceptance of the Goods,

xviii. Require Contractor to complete necessary modifications, where applicable, in a timely manner, at no charge to Agency, or

xix. Terminate the Contract.

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

FOREIGN CONTRACTOR. If the amount of a Contract exceeds ten thousand dollars ($10,000), and if Contractor is not domiciled or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue with all information it requires relative to the Contract. Agency may withhold final payment under the Contract until Contractor has met this requirement.

SAFETY DATA SHEET. Contractor shall provide Agency at time of delivery with Safety Data Sheets (as such term is defined by OSHA) and any information related thereto as well as any EPA labels for any applicable Goods provided under the Agreement. Contractor must also properly label, tag, or mark any Goods that are subject to Safety Data Sheets or EPA labels. Contractor shall, upon request, provide Agency with any Safety Data Sheets that are applicable to the Goods delivered to Agency.

TIME IS OF THE ESSENCE. Time is of the essence for Contractor’s performance obligations under a Contract.

FORCE MAJEURE. Neither Agency nor Contractor will be liable to the other for any failure or delay of performance of any obligations under a Contract when such failure or delay is wholly or principally caused by acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, fires, floods, earthquakes, or other similar natural disasters, war, riots, orcivil unrest. Both parties will make all reasonable efforts to remove or eliminate such a cause of delay or default and upon the cessation of the cause diligently pursue performance of their respective obligations under this Contract. Agency may terminate this Contract upon written notice to Contractor after determining, in its reasonable discretion, that such delay or default will likely prevent successful performance of the Contract.

Independent Contractor Status; Responsibility for Taxes and Withholding Contractor is an independent contractor. Although Agency 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, Agency does not have the right to, 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.

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, Agency will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

INDEMNIFICATION

Contractor shall defend, save, hold harmless, and indemnify Agency, DAS, the State, and their respective officers, employees, and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, settlements, awards, and costs of every kind and description (including reasonable attorney’s fees and expenses incurred in any alternative dispute resolution process (i.e. mediation), at trial, on appeal and in connection with any preparation therefor or petition for review) (collectively, “Claim”) which may be brought or made against Agency, DAS, the State, or their respective 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. Agency or DAS shall promptly notify Contractor in writing of any claim of which Agency or DAS becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by (i) the negligent or willful misconduct of Agency, or (ii) Agency’s modification of Goods without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods.

Contractor’s obligation to indemnify Agency as set forth in Section 2.13.1 above is conditioned on Agency providing Contractor with prompt written notice of any claim or potential claim of which Agency becomes aware that may be subject to indemnification. Contractor will have control of the defense and settlement of any claim that is subject to Section 2.13.1; however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the State of Oregon or any agency of State, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written approval of the Oregon Attorney General, such approval not to be unreasonably conditioned, withheld, or delayed. Contractor shall not settle any claim on behalf of the State of Oregon without the prior written approval of the Oregon Attorney General, such approval not to be unreasonably withheld or delayed. Further, the State, acting by and through its Department of Justice (DOJ), 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 being engaged in 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 as set forth in Section 2.13.1 shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) of the foregoing sentence.

EVENTS OF DEFAULT

By Contractor. Contractor will be in default of the provisions of a Contract if 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;

Has undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State; or No longer holds a license or certificate that is required for Contractor to perform Contractor’s obligations under this Contract; or Fails to comply with its obligations in Section 2.5, Prompt Payment, of this Agreement and has not cured the non-performance within 30 Calendar Days of Agency’s written notice to cure.

Violates any provision, covenant, warranty, obligation, or certification or fails to perform under a Contract, provided however that Contractor may cure the default within (30) Calendar Days of the notice or the period specified in DAS’s notice of default when DAS determines the default is curable by Contractor.

By Agency. Agency will be in default of a Contract if Agency:

Fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within ten (10) Business Days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice; or Violates any provision, covenant, warranty, or obligation or fails to perform under this Contract and such breach is not cured within thirty (30) Business Days after delivery of Contractor’s notice of breach or such longer period as Contractor may specify in such notice.

REMEDIES

Agency’s Remedies. If Contractor is in default under Section 2.14.1, in addition to the remedies afforded elsewhere in this Agreement, Agency 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. Agency may, at its option, pursue any or all of the remedies available to it hereunder and at law or in equity. Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. Without limiting any remedies DAS may have to terminate this Agreement under Section 1.4.3.1 above, Agency’s remedies include, but are not limited to:

Stop work or suspend delivery of Goods or performance of related Services as provided in Section 2.16.2.1; or Termination of the applicable Contract as provided in Section 2.16.2.3; or 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 Initiation of an action or proceeding for damages (including, without limitation, direct, incidental, or consequential damages, costs of cure, costs incurred in securing replacement Goods or Services, (or all or any combination thereof), specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or permanent work stoppage until such relief has been restored to the satisfaction of the Agency; or Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Goods and Services 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

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

Contractor’s Remedies. If Agency terminates a Contract, or if Agency is in default under Section 2.14.2 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.16.3, Contractor’s remedy is, as applicable, one of the following: (i) A claim against Agency for the unpaid purchase price for Goods delivered and related Services performed and accepted by Agency, (ii) 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 Agency, and (ii) 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 Agency, less previous amounts paid and any claim(s) which Agency has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Agency immediately upon written demand.

TERMINATION AND STOP WORK UNDER A CONTRACT

The provisions of this Section 2.16 in no way limits DAS’ right to terminate this Agreement under Section 1.4 above.

By Mutual Agreement. A Contract may be terminated at any time by mutual agreement of Agency and Contractor.

Rights of Agency. Agency 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. Upon receipt of any such 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, Agency will either cancel or modify the stop work order by a supplementary written notice and amend the Contract or terminate the Contract.

In its sole discretion, terminate a Contract for convenience upon thirty (30) Calendar Days prior written notice.

Terminate a Contract immediately upon notice to Contractor, or at such later date as Agency may establish in such notice, upon the occurrence of any of the following events: (i) Agency fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Contract; (ii) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the…