AttA_Price Agreement Pressure Washing Services v2 DOJ APPROVED.doc

State of Oregon

Attachment A – Sample Price Agreement Pressure Washing Services

Price Agreement No.: ________________

This Price Agreement for Services (“Price Agreement”) is by and between the State of Oregon, acting by and through its Department of Administrative Services, State Procurement Services (“DAS SPS”), on behalf its Department of Administrative Services, Enterprise Asset Management (“DAS EAM” or “Agency”), and __________________ (“Price Agreement or”), collectively, the “Parties”.

Price Agreement Term; Extensions.

The “Effective Date” of this Price Agreement is the date this Price Agreement has been fully executed by each party and, approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Price Agreement terminates two (2) years from last date signed. Parties may extend Price Agreement for any number of years after the initial two (2) year term, and with no maximum term limit. This Price Agreement may be extended by fully executed amendments for additional terms, provided that the total value of any one Purchase Order issued under this Price Agreement does not exceed $150,000.00. The termination of this Price Agreement will not extinguish or prejudice Agency’s right to enforce this Price Agreement with respect to any default by Contractor that has not been cured.

Price Agreement Documents. This Price Agreement consists of the following documents:

1.1. this Price Agreement less all exhibits;

1.2. Exhibit A, (Statement of Services);

1.3. Exhibit B (Special Conditions Concerning the Performance of the Services);

1.4. Exhibit C (Insurance Requirements);

1.5. Exhibit D (Price Agreement Contact Information);

1.6. Exhibit E (Site List [Pricing TBD]);

1.7. Exhibit E-1 (Supplemental Cleaning Instructions);

1.8. Exhibit F (Sample Purchase Order); and

1.9. Exhibit G (Independent Contractor Certification)

The foregoing documents and Exhibits are attached hereto and made a part of the Price Agreement by this reference.

Services.

1.10. Performance of Services. From time to time, Agency may issue Purchase Orders for Services substantially in the form attached hereto as Exhibit F and pursuant to the process described in Section 5 below. Contractor shall perform the services (the “Services”) and deliver to agency the deliverables (“Deliverables”) set forth in the specific Purchase Order and as described in Exhibit A, Statement of Services (the “Statement of Services”). Agency shall set forth the delivery schedule for the Deliverables and Services in the specific Purchase Order. Contractor shall perform the Services in accordance with the terms and conditions of this Price Agreement.

Compensation.

1.11. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Contractor for any Purchase Order executed under this Price Agreement, which includes any allowable expenses, is $150,000.00. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Price Agreement and will not pay for Services performed before the Effective Date or after the expiration or termination of this Price Agreement. Any specific Purchase Order maximum compensation shall not exceed $150,000.00.

1.12. Payments. Agency shall pay Contractor for the Deliverables and/or Services as described in the Purchase Order subject to the Rates set forth in Exhibit E, Site List and Pricing. Payments, including interim payments to Contractor are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A, Statement of Services and Exhibit E, Site List and Pricing.

a. Invoices. Contractor shall submit invoices for completed and approved work to Agency as set forth in this section. Contractor may submit invoices in accordance with the payment schedule set forth in the Purchas Order or Statement of Services or, in no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables or Services. Invoices must describe all Deliverables delivered and Services performed with particularity as listed below.

1. Invoices must include the following information:

· Price Agreement #

· Purchase Order #

· Building Location where Services were performed

· Description of Deliverables delivered and/or Services performed

· Delivery Date(s)

· Total amount invoiced; and

· Remit to payment address

2. Contractor shall invoice only for Deliverables delivered and/or Services performed.

3. Submit Invoice. All invoices shall be sent to Agency at:

DAS Enterprise Asset Management

Administration – Price Agreement Services

Attn: Contracts Services – Accounts Payable

1225 Ferry Street SE, U100

Salem OR 97301

Phone: 503-881-6505 Email: EAM.Contracts@das.oregon.gov

1.13. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in Exhibit A, Statement of Services or elsewhere in this Price Agreement. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at: http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

1.14. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Price Agreement and any Purchase Order by any agency or department of the State of Oregon other than Agency. Agency believes it has sufficient funds currently available and authorized for expenditure to make payments under this Price Agreement within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Price Agreement are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Price Agreement.

1.15. Price Adjustments. Except as set forth in this section, all Price Agreement prices are firm for the initial term of the Price Agreement. Changes in prices or discounts may be considered, by DAS EAM, only at the time of renewal. Price increases shall not exceed increases in the Consumer Price Index (CPI), based on the Portland/Salem Urban Consumers percentage adjustment. All information regarding proposed price changes shall be submitted to DAS EAM, in writing, at least 60 days prior to the Price Agreement expiration date. Proposed price changes must be accompanied by documentation supporting such increases. DAS EAM may accept or reject any proposed price changes, in the best interest of DAS EAM. If the proposed price or discount changes are accepted, they shall become effective on the first day of the Price Agreement renewal period.

Ordering Process – Purchase Order(s); Mandatory Language; Rates; Delivery Acceptance.

1.16. Ordering Process – Purchase Order(s). Contractor shall provide Pressure Washing Services as requested by Agency, at a mutually agreed upon date and time, pursuant to Purchase Orders issued incorporating the terms, conditions and rates in this Price Agreement. Agency must use DAS SPS approved Purchase Order forms to order Pressure Washing Services under this Price Agreement. (See Exhibit F, Sample Purchase Order Form.

1.17. Contractor shall only accept Purchase Order(s) that comply with the requirements of this Section and that include the following information:

· Price Agreement # ________;

· Purchase Order #;

· Service Location;

· Requested Service(s);

· Service Schedule;

· Total Compensation due under the Purchase Order, based upon the Rates set forth in Exhibit E, Site List and Pricing;

· Agency Accounts Payable Address for Invoicing; and

· Agency Authorized Representative and Contact Information

1.18. Mandatory Purchase Order Language. Purchase Orders will incorporate this Price Agreement by reference and shall identify the Price Agreement number. No language in a Purchase Order will vary, amend, modify or add terms and conditions to this Price Agreement. Each Purchase Order must include the following language:

THIS PURCHASE IS PLACED AGAINST THE STATE OF OREGON PRICE AGREEMENT OREGONBUYS PO#-10700-xxxxxxx. THE PRICE AGREEMENT TERMS AND CONDITIONS (T’S&C’S) APPLY TO THIS PURCHASE AND TAKE PRECENDENCE OVER ALL OTHER CONFLICTING T’S & C’S, EXPRESS OR IMPLIED.

1.19. Rates. See Exhibit E, Site List and Pricing.

1.20. Acceptance of Deliverable. Contractor shall deliver all Services to Agency as requested and mutually agreed upon, as set per authorized executed Purchase Order(s) and in accordance with the Rates set in Exhibit E, Site List and Pricing.

Special Considerations. None.

Price Agreement Personnel.

1.21. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Price Agreement, because of the special qualifications of Contractor’s key persons identified in Exhibit A, Statement of Services (each a “Key Person” and, together, “Key Persons”). Neither Contractor, nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Price Agreement to another Contractor employee, subcontractor agent without obtaining the written consent of Agency. Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Price Agreement, and the Statement of Services will be deemed amended to include such Key Person.

1.22. Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties.

1.23. State Premises. Contractor and Contractor’s staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other agency of the State.

Independent Contractor; Responsibility For Taxes And Withholding

1.24. Independent Contractor. Contractor shall perform all Services as an independent Contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

1.25. No Conflicts. Contractor, by signature to this Price Agreement, represents and warrants that Contractor’s performance of the Services under this Price Agreement creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Price Agreement.

1.26. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

1.27. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Price Agreement and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount 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 Price Agreement, except as a self‑employed individual.

Subcontractors, Successors, And Assignments

1.28. Subcontractors. Contractor shall not enter into any subcontractor for any of the Services required by this Price Agreement without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontractor under this Price Agreement provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. Agency’s consent to any subcontractor does not relieve Contractor of any of its duties or obligations under this Price Agreement.

1.29. Successors and Assigns. The provisions of this Price Agreement are binding upon and inure to the benefit of the parties to this Price Agreement, their respective successors, and permitted assigns, if any.

1.30. No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Price Agreement without Agency’s prior written consent.

Representations and Warranties.

1.31. Contractor’s General Representations and Warranties. Contractor represents and warrants to Agency that:

1.31.1. Contractor has the power and authority to enter into and perform this Price Agreement;

1.31.2. This Price Agreement, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

1.31.3. Contractor shall, at all times during the term of this Price Agreement, be qualified, professionally competent, and duly licensed to perform the Services;

1.31.4. Contractor prepared its proposal related to this Price Agreement, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

1.31.5. Contractor to the best of Contractor’s knowledge, after due inquiry, for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

1.31.5.1. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

1.31.5.2. Any tax provisions imposed by a political subdivision of this state that applied to Contractor or, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Price Agreement or;

1.31.5.3. Any tax provisions imposed by a political subdivision of this State that applied to Contractor or to goods, services, or property, whether tangible or intangible, provided by Price Agreement or;

1.31.5.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

1.31.6. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

1.32. Contractor’s Performance Warranties.

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

1.32.2. The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Price Agreement;

1.32.3. Except as otherwise provided in this Price Agreement (including Section 9), Contractor shall transfer all Deliverables to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

1.32.4. Except as otherwise set forth in this Price Agreement, any subcontractors performing work for Contractor under this Price Agreement have assigned all of their rights in the Deliverables to Contractor or Agency and no third party has any right, title or interest in any Deliverables supplied to Agency under this Price Agreement.

1.33. Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Price Agreement.

Ownership of Work Product.

1.34. Definitions. As used in this Section, and elsewhere in this Price Agreement the following terms have the meanings set forth below:

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

1.34.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Price Agreement or.

1.34.3. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to this Price Agreement, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection).

1.35. Original Works. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations of Work Product, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of Agency. Agency and Contractor agree that such Work Product is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

1.36. License in Contractor Intellectual Property. In the event that a Deliverables delivered by Contractor under this Price Agreement is or is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

1.37. License in Third Party Intellectual Property. In the event that a Deliverables delivered by Contractor under this Price Agreement is or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the Agency’s behalf and in the name of the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

1.38. No Rights. Except as expressly set forth in this Price Agreement, nothing in this Price Agreement may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency. Except as expressly set forth in this Price Agreement, nothing in this Price Agreement may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Price Agreement or.

1.39. Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Price Agreement.

1.40. Competing Services. Subject to the provisions of this Section 9, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Price Agreement precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Price Agreement, or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Price Agreement. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Price Agreement free of any use restriction or payment obligation to the other.

Confidential Information.

1.41. Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this Price Agreement, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this Price Agreement shall be considered for the purposes of this Price Agreement the confidential information of Agency (“Confidential Information”). Contractor shall, and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Price Agreement; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Price Agreement; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

1.42. Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise Contractor Staff of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Price Agreement, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Price Agreement, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Price Agreement. Upon expiration or termination of this Contractor at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor’s possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Price Agreement, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

1.43. Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

1.44. Injunctive Relief. Contractor acknowledges that breach of this Section, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

1.45. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contractor any Deliverables in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Agency or the State of Oregon of Contractor’s services, without the prior written consent of Agency.

Indemnity by Price Agreement or.

1.46. Claims. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and Agency and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees) and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this Price Agreement, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Services set forth in this Price Agreement.

1.47. Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees or agents under Section 11.1, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, Agency or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

1.48. Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including death, damage to real property and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors or agents resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Price Agreement.

1.49. CONTRACTORIS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF AGENCY.

Limitation of Liabilities.

1.50. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, PRICE AGREEMENT OR’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO ONE AND ONE HALF TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF THIS PRICE AGREEMENT.

1.51. EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.

Insurance. Contractor shall maintain insurance as set forth in Exhibit C.

Default; Remedies; Termination.

1.52. Default by Price Agreement or. Contractor will be in default under this Price Agreement if:

1.52.1. 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; or

1.52.2. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Price Agreement and Contractor has not obtained such license or certificate within 14 calendar days after Agency’s notice or such longer period as Agency may specify in such notice; or

1.52.3. Contractor commits any material breach or default of any covenant, warranty, obligation, certification, or agreement under this Price Agreement, fails to perform the Services under this Price Agreement within the time specified herein or any extension thereof, or so fails to pursue the Services as to endanger Contractor's performance under this Price Agreement in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after Agency's notice, or such longer period as Agency may specify in such notice; or

1.52.4. Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

1.53. Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 14.1, Agency may, at its option, pursue any or all of the remedies available to it under this Price Agreement and at law or in equity, including, but not limited to:

1.53.1. Termination of this Price Agreement under Section 16.6.2; or

1.53.2. Withholding all monies due for Services and Deliverables that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; or

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

1.53.4. Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Price Agreement or, without penalty; or

1.53.5. Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law.

1.54. Remedies Cumulative. The remedies set forth in Section 16.2 are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Sections 14.1, then Contractor will be entitled to the same remedies as if this Price Agreement was terminated pursuant to Section 16.6.1.

1.55. Default by Agency. Agency will be in default under this Price Agreement if:

1.55.1. Agency fails to pay Contractor any amount pursuant to the terms of this Price Agreement, and Agency fails to cure such failure within 30 calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

1.55.2. Agency commits any material breach or default of any covenant, warranty, or obligation under this Price Agreement, and such breach or default is not cured within 30 calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

1.56. Contractor’s Remedies. In the event Agency terminates this Price Agreement under Section 16.6.1, or is in default under Section 16.4, and whether or not Contractor elects to exercise its right to terminate the Price Agreement under Section 16.6.3, Contractor’s sole monetary remedy will be (i) with respect to Services compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Price Agreement but not yet invoiced and authorized expenses incurred and interest, subject to ORS 293.462, and (ii) with respect to Deliverables-based Services, a claim for the sum designated for completing the Deliverables multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid and any claim(s) that Agency has against Price Agreement or. In no event will Agency be liable to Contractor for any expenses related to termination of this Contractor for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 16.5, Contractor shall pay immediately any excess to Agency upon written demand.

1.57. Termination.

1.57.1. Agency’s Right to Terminate at its Discretion. Agency may terminate this Price Agreement:

1.57.1.1. Upon 30 calendar days’ prior written notice by Agency to Price Agreement or;

1.57.1.2. Immediately upon written notice by Agency to Contractor if Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or

1.57.1.3. Immediately upon written notice by Agency to Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the Agency’s purchase of the Services or Work Products under this Price Agreement is prohibited or Agency is prohibited from paying for such Services or Work Products from the planned funding source.

1.57.2. Agency’s Right to Terminate for Cause. In addition to any other rights and remedies Agency may have under this Price Agreement, Agency may terminate this Price Agreement immediately upon written notice by Agency to Price Agreement or, or at such later date as Agency may establish in such notice, if Contractor is in default under Section 16.1.

1.57.3. Contractor’s Right to Terminate for Cause. Contractor may terminate this Price Agreement immediately upon written notice to Agency, or at such later date as Contractor may establish in such notice, if Agency is in default under Section 16.2.

1.58. Return of Property. Upon termination of this Price Agreement for any reason whatsoever, Contractor shall immediately deliver to Agency all of Agency’s property (including without limitation any Services or Work Products for which Agency has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such Agency property is expressed or embodied at that time.

1.59. Effect of Termination. Upon receiving a notice of termination of this Price Agreement, Contractor shall immediately cease all activities under this Price Agreement, unless Agency expressly directs otherwise in such notice of termination. Upon Agency's request, Contractor shall surrender to anyone Agency designates, all documents, research or objects or other tangible things needed to complete the Services and the Deliverables.

Compliance with Law.

1.60. Compliance with Law Generally. Contractor shall comply, and cause all subcontractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Price Agreement and the performance of the Services. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Price Agreement: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act portion of the American Recovery and Reinvestment Act of 2009 (ARRA), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164, as the law and its implementing regulations may be updated from time to time; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) Section 188 of the Workforce Investment Act (WIA) of 1998, as amended; (ix) ORS Chapter 659, as amended; (x) all regulations and administrative rules established pursuant to the foregoing laws; and (xi) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the Price Agreement and required by law to be so incorporated. Agency’s performance under the Price Agreement is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Price Agreement, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

1.61. Compliance with Oregon Tax Laws.

1.61.1. Contractor shall, throughout the duration of this Price Agreement, 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 the tax laws described in Section 8.1.5.1 through 8.1.5.4.

1.61.2. Any violation of Section 17.2.1 constitutes a material breach of this Price Agreement. Further, any violation of Contractor’s warranty in Section 8.1.5 of this Price Agreement that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also constitutes a material breach of this Price Agreement. Any violation entitles Agency to terminate this Price Agreement, to pursue and recover any and all damages that arise from the breach and the termination of this Price Agreement, and to pursue any or all of the remedies available under this Price Agreement, at law, or in equity, including but not limited to:

1.61.2.1. Termination of this Price Agreement, in whole or in part;

1.61.2.2. Exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to Contractor without penalty; and

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

1.61.3. These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

1.62. Pay Equity. As required by ORS 279B.235 or ORS 279C.520, Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s 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 constitutes a material element of this Price Agreement and a failure to comply constitutes a breach that entitles Agency to terminate this Price Agreement for cause.

Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

Governing Law; Venue and Jurisdiction.

1.63. Governing Law. This Price Agreement is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

1.64. Venue and Jurisdiction. Any claim, action, suit or proceeding between Agency (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Price Agreement must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. PRICE AGREEMENT OR, BY EXECUTION OF THIS PRICE AGREEMENT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim, action, suit or proceeding, or (ii) consent by the State of Oregon to the jurisdiction of any court.

Miscellaneous Provisions.

1.65. Records Maintenance; Access. Contractor shall maintain all financial records relating to this Price Agreement in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Price Agreement or, whether in paper, electronic or other form, that are pertinent to this Price Agreement (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that Agency and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives will have access to such financial records and other Records that are pertinent to this Price Agreement, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records and other Records for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and termination of this Price Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this Price Agreement, whichever date is later.

1.66. Foreign Price Agreement or. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Price Agreement. Contractor shall demonstrate its legal capacity to perform the Services under this Price Agreement in the State of Oregon prior to entering into this Price Agreement.

1.67. Force Majeure. Neither Agency nor Contractor may be held responsible for delay or default caused by fire, riot, acts of God, terrorist acts, or other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or Price Agreement or, respectively. 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 Price Agreement.

1.68. Survival. All rights and obligations cease upon termination or expiration of this Price Agreement, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Price Agreement, including without limitation this Section 19.4, and provisions regarding Price Agreement definitions, warranties and liabilities, independent Contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Deliverables, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of Agency property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

1.69. Time is of the Essence. Contractor agrees that time is of the essence under this Price Agreement.

1.70. Notice. Except as otherwise expressly provided in this Price Agreement, any communications between the parties hereto or notices to be given hereunder must be given in writing by email, personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or Agency at the email address, postal address or telephone number set forth in this Price Agreement, or to such other addresses or numbers as either party may indicate pursuant to this Section 19.6. Any communication or notice so addressed and mailed is effective five business days after mailing. Any communication or notice delivered by facsimile is effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours, or on the next business day, if transmission was outside normal business hours of the recipient. To be effective against Agency, any notice transmitted by facsimile must be confirmed by telephone notice to Agency’s Price Agreement Administrator. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

1.71. No Third Party Beneficiaries. Agency and Contractor are the only parties to this Price Agreement and are the only parties entitled to enforce the terms of this Price Agreement. Nothing in this Price Agreement gives, is intended to give, or may be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Price Agreement.

1.72. Severability. The parties agree that if any term or provision of this Price Agreement is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Price Agreement did not contain the particular term or provision held to be invalid.

1.73. Merger Clause; Waiver. This Price Agreement and…