Attachment A - Sample Contract - OJD RFP No. S-19800-00010703_Final.pdf

Attachment A – OJD RFP No. S-19800-00010703

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 1

OREGON JUDICIAL DEPARTMENT

MASTER SERVICE AGREEMENT FOR

DOMESTIC RELATIONS MEDIATION SERVICES

MASTER SERVICE AGREEMENT CONTRACT NUMBER:

This Master Service Agreement for Domestic Relations Mediation Services (“Master Agreement”) is between the Oregon Judicial Department (“OJD”) on behalf its Deschutes County Circuit Court (“Court”), and , an individual (“Contractor”). OJD and Contractor are each a “Party” and collectively they are “Parties.” The Parties agree as follows:

1. Contractor Contact Information OJD Contact Information

Name Name Angie Curtis Title Title Trial Court Administrator Address Address 1100 NW Bond Bend, Oregon 97703

Phone Phone 541-317-4780 Email address Email address Angie.Curtis@ojd.state.or.us

2. Purpose and Background. Mediation is a process in which a neutral third party (“Mediator”) assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy. Each of the 27 judicial districts throughout Oregon are required to provide mediation in any domestic relations case in which child custody, parenting time and visitation are in dispute. A circuit court may obtain mediation services, known as court-connected mediation services (“Services”), in a number of ways, including by contracting with private agencies or directly with mediators. Annually close to 1,000 dissolution and other domestic relations cases (not including protective orders) are filed in Deschutes County. It is anticipated that the Court will refer approximately 280 domestic relations cases involving child custody and parenting time each year to mediation, though some parties may choose to not participate in mediation. The purpose of this Master Agreement is to establish the process through which the Court may execute subsequent service orders for Contractor’s provision of Services.

3. Term of Master Agreement. This Master Agreement shall become effective on the date it has been fully executed by every Party.

Unless extended or terminated earlier in accordance with its terms, this Master Agreement shall terminate on December 31, 2029.

Termination of the Master Agreement shall not extinguish or prejudice OJD’s right to enforce its terms and conditions, as well as any service orders created under the Master Agreement with respect to any default by Contractor that has not been cured. OJD may renew this Master Agreement for two additional terms of three years each. All of the terms and conditions of this Master Agreement shall apply to any renewal terms. The Parties acknowledge and agree that this Master Agreement alone does not guarantee a specific amount of work or payment.

4. Master Agreement Documents. This Master Agreement and each service order executed under this Master Agreement

(collectively referred to as the “Agreement”) constitute the complete agreement for those specific Services acquired, and supersede any prior and contemporaneous discussions, agreements or representations and warranties. This Master Agreement consists of the following documents:

4.1. This Master Agreement;

4.2. Exhibit A: Service Order;

4.3. Exhibit B: Insurance;

4.4. Exhibit C: Oregon Judicial Department Court-Connected Mediator Qualifications by Case Type

(https://www.courts.oregon.gov/programs/ADR/Documents/MediatorQualificationsByType.pdf) The exhibits are attached hereto and incorporated into this Master Agreement by this reference.

5. Service Orders. Each “Service Order” will contain the details on the Services to be provided, including consideration, the term that Services must be completed by, and other specific requirements. Any additional terms on Service Orders that conflict with this Master Agreement will be of no force or effect. All Service Orders must be signed by both Parties to be effective. Contractor will perform, and OJD will pay for, Services only when Contractor performs Services pursuant to a Service Order substantially in the form of Exhibit A. Contractor shall complete Services required by each Service Order to OJD’s satisfaction.

6. Services. Contractor shall perform all Services in compliance with the protocols set forth this Agreement and any other applicable rules and procedures.

https://www.courts.oregon.gov/programs/ADR/Documents/MediatorQualificationsByType.pdf

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 2

6.1. Only Qualified Domestic Relations Mediators.

Services are governed by the Oregon Revised Statutes (“ORS”), the Uniform Trial Court Rules (“UTCR”), and any applicable Supplementary Local Rules (“SLR”). ORS 107.755 through 107.795 covers mediation procedures for domestic relations cases.

As of the Effective Date of this Contract, mediator qualifications are found in UTCR Chapter 12. The Court also has SLR Chapter 12 that covers mediation of child custody and parenting time. The requirements to mediate child custody and parenting time or financial issues in domestic relations cases are higher than for other case types. Unless Contractor is granted an exemption as allowed under the governing laws and procedures, only Contractors that possess all minimum qualifications to be an approved domestic relations custody and parenting mediator are able to provide Services under this Agreement. Contractor shall refrain from performing Services under this Agreement if Contractor no longer meets the current minimum qualification requirements or hold a qualified exemption. If Contractor receives notice or otherwise learns Contractor no longer meets the current minimum qualifications or no longer hold a qualified exemption, Contractor must promptly notify OJD and stop performance of any Services.

Contractor is responsible for obtaining the current, relevant laws and rules regarding providing Services and for maintaining their own continued compliance with any future changes to those laws and rules.

6.1.1. Domestic Relations Financial Mediation

Qualifications. Contractor may only provide domestic relations financial mediation services if Contractor meets all minimum requirements and is available to provide such Services to the Court, upon the Court’s request.

6.2. Mediation Orientation Sessions and Screenings.

Contractor’s Services shall include the provision of mediation orientation sessions that comply with all relevant laws and rules covering the information required to be provided to parties referred to mediation, including, but not limited to making the parties aware of what mediation is, what mediation options are available to the parties, and the advantages and disadvantages of each method of dispute resolution. For all cases referred from the Court to Contractor, Contractor shall also perform screenings for domestic violence issues and any potential conflicts of interest that could raise questions as to a mediator’s impartiality and fairness.

6.3. Mediation Proceedings. Contractor’s Services shall

include being responsible for conducting and facilitating mediation proceedings for the cases referred from the Court to Contractor. Contractor shall work with the Court to accommodate parties who require in-person mediation sessions, as determined on a case-by-case basis. Contractor shall be responsible for ensuring that an appropriate physical location is available for conducting mediation proceedings. An appropriate location must provide for confidentiality so that the proceedings are held in private and all persons other than mediation services personnel, the parties, their counsel, and children of the parties shall be excluded. Further, Contractor shall ensure that all communications, verbal or written, made in mediation proceedings shall be kept confidential, except as provided by law. Additionally, at the beginning of each mediation proceeding Contractor shall execute an agreement to mediate that outlines the duty of confidentiality and the exceptions. Contractor shall be responsible for obtaining and providing the necessary equipment and materials to conduct remote proceedings, including, but not limited to remote mediation proceedings.

6.4. Mediation Documentation. Contractor’s Services

shall include documenting the outcome of mediation proceedings using the format requested by the Court (Deschutes County Parenting Plan template, Domestic Relations Mediator Report and other documents or reports requested by the Court).

Contractor shall complete and provide to the Court any Court-requested reports and any other requested documents within two weeks of the conclusion of mediation.

6.5. Mediation Program and Plan Evaluation.

Contractor’s Services shall include cooperating with and assisting the Court in the evaluation of the domestic relations mediation services and the domestic relations program and any program plans.

Contractor’s most qualified representatives shall meet regularly with designated judge(s) and the Deschutes County Trial Court Administrator or designee, as requested by the Court, to plan, evaluate, and coordinate the domestic relations mediation program and any program plans.

6.6. Schedule for Services. Contractor shall perform the

Services and provide Deliverables required under this Agreement according to the following schedule:

6.6.1. Contractor shall perform Services in a manner

that is consistent with the scheduling and operational needs of the Court and in accordance with any applicable laws, rules, and regulations.

6.6.2. Contractor shall provide Services for at least

four cases per month as referred to Contractor by the Court.

6.6.3. Contractor shall provide to the Court any

reports or requested documentation for a referred case within two weeks of the conclusion of

6.7. Deliverables. The “Deliverables” required by this

Agreement shall be performed in a timely manner and include, but are not limited to the following:

6.7.1. Provide mediation orientation sessions for case

parties for all cases referred by the Court to Contractor for Services.

6.7.2. Conduct a screening of parties for any domestic

violence issues and potential conflicts in all cases referred by the Court to Contractor for Services.

6.7.3. Schedule and conduct mediation proceedings

with the case parties for all cases referred by the Court to Contractor in accordance with the terms of this Agreement.

6.7.4. Provide the Court with all requested

documents, materials, records and information

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 3 required by this Agreement and as directed by the Court.

6.7.5. Cooperate with and assist the Court with the

evaluation of domestic relations mediation services, the domestic relations mediation program and any program plans. Including attending and participating in regular meetings with judge(s) and Court staff on planning, evaluating, and coordinating the Court’s domestic relations program and program plans.

6.8. OJD Acceptance. All Services shall meet all

applicable requirements, specifications, and any warranties set forth in this Agreement. Upon Contractor’s completion of all required Services the Court shall have 15 business days to review the completed Services to determine if the Services conform with the terms of this Agreement.

7. Insurance. Contractor shall obtain and keep in effect during the term of this Agreement insurance coverage as described in Exhibit B.

8. Consideration. OJD shall compensate Contractor, at the rates identified in a Service Order for the stated term, for Contractor’s satisfactory completion of Services during that term. Except as otherwise agreed to in writing by OJD, OJD will not pay Contractor for Services performed on or after the term specified in the Service Order.

8.1. Expenses. No expenses are reimbursable under this

Agreement.

8.2. Invoices. Contractor shall submit invoice(s) for each

term documented in a Service Order. Each invoice shall include the Master Agreement Contract Number (found on the first page of this Master Agreement), the Service Order contract number (found on the first page of the Service Order), the applicable term and specific dates within that term that Contractor performed Services, the number of cases mediated during that term, and the court case number for all cases mediated during that term.

8.3. Right to Withhold Payment. OJD shall have the

right to withhold and to continue withholding any payment of any amount invoiced by Contractor if OJD provides notice to Contractor before the date such payment is due, that the Services described on the invoice have not been performed in accordance with the terms of this Agreement, that the number of cases mediated by Contractor is excessive, or that the amount invoiced is excessive and Contractor fails or refuses, and continues to fail or refuse, to correct the defect. Further, OJD is entitled to withhold payment of any amount invoiced after Services are complete until OJD has had a reasonable opportunity to inspect and accept all the Services provided by Contractor are in accordance with this Agreement. OJD will only pay for completed Services that are accepted by OJD.

9. RESERVED.

10. Governing Law; Venue; Consent to Jurisdiction. This

Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit, or proceeding (collectively, "Claim") between OJD (and/or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this Section be construed as 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 or from the jurisdiction of any court. CONTRACTOR, BY

EXECUTION OF THIS AGREEMENT, HEREBY

CONSENTS TO THE IN PERSONAM JURISDICTION OF

SAID COURTS.

11. Availability of Funding. At the time this Agreement is executed, sufficient funds are either available within OJD’s current appropriation or are expected to become available from federal, state, or other sources to finance the costs of Services. Contractor understands and agrees that OJD's payment of amounts under this Agreement is contingent on OJD receiving appropriations, limitations, allotments, or other expenditure authority sufficient to allow OJD, in the exercise of its reasonable administrative discretion, to continue to make payments under the Agreement.

12. Time is of the Essence. Contractor agrees that time is of the essence for Services to be provided under this

13. Independent Contractor; Responsibility for Taxes and

Withholding.

13.1. Independent Contractor. Contractor shall perform

all Services as an independent contractor. OJD reserves the right to:

13.1.1. Determine and modify the delivery schedule

for Services; and

13.1.2. Evaluate the quality of Services; however, OJD 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.

13.2. No Conflicts. Contractor, by signature to this

Agreement, represents and warrants that Contractor’s performance under this Agreement creates no potential or actual conflict of interest as defined in 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’s Services under this Agreement.

13.3. Affiliations. Contractor understands and agrees

that Contractor is not an "officer," "employee," or "agent" of OJD, as those terms are used in ORS

30.265 or otherwise.

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 4

13.4. Taxes and Benefits. Contractor shall be

responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Agreement and, unless required by applicable law, OJD will not withhold from such compensation or payments of 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 Agreement, except as a self-employed individual.

14. Representations and Warranties.

14.1. Contractor represents and warrants to OJD that:

14.1.1. Contractor has the power and authority to

enter into and perform this Agreement;

14.1.2. This Agreement, when executed and

delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms;

14.1.3. Contractor has the skill and knowledge

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

14.1.4. At the time of Contractor’s signing of this

Agreement, Contractor meets the minimum qualifications required for an approved domestic relations custody and parenting mediator and if applicable, the minimum qualifications required to provide domestic relations financial mediation services.

14.1.5. Contractor shall, at all times during the term of

this Agreement, be qualified, professionally competent, and duly licensed to perform the Services;

14.1.6. Contractor prepared its proposal related to this

Agreement, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty;

14.1.7. The Services and each Deliverable delivered

by the Contractor to OJD shall materially conform to the service descriptions, specifications, capabilities, characteristics, functions and performance standards set forth in this Agreement, shall be free from error or defect that materially impairs their use, and shall be free from material defects in material, workmanship and design;

14.1.8. Contractor shall, except as otherwise provided

in this Agreement, transfer to OJD all Deliverables 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

14.1.9. When used as authorized by this Agreement, no Deliverable delivered by Contractor to OJD infringes, nor will OJD’s use, duplication, or transfer of such Deliverable infringe, any copyright, patent, trade secret, or other proprietary right of any third party.

14.2. The warranties set forth in this Section are in

addition to, and not in lieu of, any other warranties set forth elsewhere in this Agreement or provided by Contractor.

15. Ownership of Work Product. As used in this Section, and elsewhere in this Agreement, the following terms have the meanings set forth below:

15.1. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from this Agreement.

15.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than OJD or Contractor.

15.3. “Work Product” means every invention, discovery, work of authorship, trade secret, or other tangible or intangible item and all intellectual property rights therein that Contractor is required to deliver to OJD pursuant to this Agreement.

15.4. 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, shall be the exclusive property of OJD. OJD and Contractor agree that such Work Products of authorship are “work made for hire” of which OJD is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to this Agreement is not “work made for hire” Contractor hereby irrevocably assigns to OJD any and all of its rights, title, and interest in all Work Product created pursuant to this Agreement, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon OJD’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in OJD. Contractor forever waives any and all rights relating to Work Product created pursuant to this Agreement, 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.

15.5. In the event that Work Product is Contractor

Intellectual Property, or a derivative work based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property, Contractor hereby grants to OJD an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on OJD’s behalf.

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 5

15.6. In the event that Work Product is Third Party

Intellectual Property, or a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Contractor shall secure on OJD’s behalf and in the name of OJD, an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property, and to authorize others to do the same on OJD’s behalf.

15.7. Except as expressly set forth in this Agreement, nothing in this Agreement may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned by OJD. Except as expressly set forth in this Agreement, nothing in this Agreement may be construed as granting to or conferring upon OJD any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

15.8. Neither Party grants the other the right to use its

trademarks, trade names, service marks or other designations in any promotion or publication without written consent. Each Party grants only the licenses and rights specified in this Agreement.

15.9. Subject to the provisions of this Section, and

Contractor’s obligations with respect to Confidential Information, including as defined in Section 16, nothing in this Agreement precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this 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 pursuant to this 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 Agreement free of any use restriction or payment obligation to the other.

16. Confidential Information.

16.1. Contractor shall exercise due care to choose and

manage its employees so that only suitably responsible, professionally competent, and disciplined representatives shall be providing Services, and have access to sensitive and critical activities or information.

16.2. Any and all information of any form obtained by

Contractor or its employees or agents in the performance of this Agreement, including the information identified in Section 7 shall be deemed to be confidential information of OJD. Contractor shall instruct its employees to keep such information confidential by using the same care and discretion that Contractor uses with similar information which

Contractor designates as confidential or proprietary.

Contractor shall not be required to keep confidential any information which is or becomes publicly available, which came into Contractor’s possession prior to entering into discussions with OJD, is independently developed by Contractor, or is rightfully obtained from third parties, or information required to be disclosed by law, rule, regulation, subpoena, or other administrative or legal process in connection with litigation resulting from this Agreement.

Contractor will notify OJD in writing prior to the release of any information to third parties resulting from this Agreement. OJD will notify the Contractor in writing within ten business days of any objections to the disclosure of information.

17. Personal Information. In the performance of this Agreement, Contractor may have possession or access to documents, records or items that contain “Personal Information” as that term is defined in ORS 646A.602.

Personal Information is a type of confidential information that is highly sensitive and subject to additional protection.

Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, Contractor shall have in place, a formal written information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons, as required by the Oregon Consumer Identity Protection Act (“OCIPA”), ORS 646A.600-646A.628. Accordingly, Contractor agrees and warrants that it will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control. At OJD’s request, Contractor shall provide to OJD Contractor’s written security policies describing the steps Contractor will take to preserve Personal Information.

17.1. Contractor shall not breach or permit breach of the

security of any Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody, or control under this Agreement.

Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor shall not use, distribute, or dispose of any Personal Information other than expressly permitted by OJD, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

17.2. Contractor shall report to OJD, as promptly as

possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Contractor receives access, possession, custody or control in the performance of this Agreement.

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 6

17.3. Contractor shall be responsible for all costs, expenses, and losses associated with complying with the notice requirements of OCIPA that result from acts or omissions of Contractor, its employees, subcontractors, and agents under this Agreement.

Contractor shall also be responsible for all expenses reasonably incurred by OJD, and all claims and damages asserted by any third parties that arise from a breach of security of Personal Information resulting from acts or omissions of Contractor, its employees, subcontractors, and agents under this Agreement.

17.4. Contractor shall ensure the compliance of its

employees, subcontractors, and agents with this Section.

18. Indemnity.

18.1. GENERAL INDEMNITY. CONTRACTOR SHALL

DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY THE STATE OF OREGON AND OJD

AND THEIR OFFICERS, EMPLOYEES, AND

AGENTS FROM AND AGAINST ALL CLAIMS,

SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF ANY

NATURE WHATSOEVER, INCLUDING ATTORNEY

FEES, RESULTING FROM, ARISING OUT OF, OR

RELATING TO THE ACTIVITIES OF CONTRACTOR

OR ITS OFFICERS, EMPLOYEES,

SUBCONTRACTORS, OR AGENTS UNDER THIS

AGREEMENT, INCLUDING BUT NOT LIMITED TO,

UNAUTHORIZED DISCLOSURE OF

CONFIDENTIAL INFORMATION, PROFESSIONAL

MALFEASANCE, INFRINGMENT OF

INTELLECTUAL PROPERTY RIGHTS,

INTENTIONAL, WILLFUL, OR WANTON

WRONGFUL ACTS AND ACTS OUTSIDE THE

SCOPE OF SERVICES SET FORTH IN THIS

AGREEMENT.

18.2. INDEMNITY FOR INFRINGEMENT CLAIMS.

WITHOUT LIMITING THE GENERALITY OF

SECTION 18.1, CONTRACTOR EXPRESSLY

AGREES TO DEFEND, INDEMNIFY, AND HOLD

OJD, THE STATE OF OREGON AND THEIR

AGENCIES, SUBDIVISIONS, OFFICERS,

DIRECTORS, AGENTS, AND EMPLOYEES

HARMLESS FROM ANY AND ALL THIRD PARTY

CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES,

COSTS, EXPENSES, INCLUDING ATTORNEY

FEES, AND DAMAGES ARISING OUT OF OR

RELATED TO ANY CLAIMS THAT THE SERVICES,

THE WORK PRODUCT OR ANY OTHER TANGIBLE

OR INTANGIBLE ITEMS DELIVERED TO OJD BY

CONTRACTOR THAT MAY BE THE SUBJECT OF

PROTECTION UNDER ANY STATE OR FEDERAL

INTELLECTUAL PROPERTY LAW OR DOCTRINE,

OR OJD’S USE THEREOF, INFRINGES ANY

PATENT, COPYRIGHT, TRADE SECRET,

TRADEMARK, TRADE DRESS, MASK WORK,

UTILITY DESIGN, OR OTHER PROPRIETARY

RIGHT OF ANY THIRD PARTY; PROVIDED, THAT

OJD SHALL PROVIDE CONTRACTOR WITH

PROMPT WRITTEN NOTICE OF ANY

INFRINGEMENT CLAIM.

18.3. INDEMNITY FOR BREACH OF

CONFIDENTIALITY. WITHOUT LIMITING THE

GENERALITY OF SECTION 18.1, CONTRACTOR

SHALL DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY THE STATE OF OREGON AND OJD

AND THEIR OFFICERS, EMPLOYEES, AND

AGENTS FROM AND AGAINST ALL CLAIMS,

SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF ANY

NATURE WHATSOEVER, RESULTING FROM,

ARISING OUT OF OR RELATING TO A

DISCLOSURE OR USE OF CONFIDENTIAL OR

PERSONAL INFORMATION IN BREACH OF THIS

AGREEMENT BY THE CONTRACTOR OR ITS

OFFICERS, EMPLOYEES, SUBCONTRACTORS,

OR AGENTS TO THE EXTENT ALLOWED BY THE

LAW.

18.4. CONTROL OF DEFENSE AND SETTLEMENT.

CONTRACTOR SHALL HAVE CONTROL OF THE

DEFENSE AND SETTLEMENT OF ANY CLAIM

THAT IS SUBJECT TO SECTIONS 18.1, 18.2, OR

18.3. HOWEVER, NEITHER CONTRACTOR NOR

ANY ATTORNEY ENGAGED BY CONTRACTOR

SHALL DEFEND THE CLAIM IN THE NAME OF THE

STATE OF OREGON OR OJD NOR PURPORT TO

ACT AS LEGAL REPRESENTATIVE OF THE STATE

OF OREGON OR OJD, WITHOUT THE APPROVAL

OF THE OREGON ATTORNEY GENERAL, NOR

SHALL CONTRACTOR SETTLE ANY CLAIM ON

BEHALF OF THE STATE OF OREGON OR OJD

WITHOUT THE APPROVAL OF THE OREGON

ATTORNEY GENERAL AND OJD. FURTHER, THE

STATE OF OREGON 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 INCLUDE 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.

18.5. DAMAGES TO STATE PROPERTY AND

EMPLOYEES. CONTRACTOR SHALL BE LIABLE

FOR ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES

FOR PERSONAL INJURY, INCLUDING DEATH,

DAMAGE TO REAL PROPERTY AND DAMAGE TO

TANGIBLE OR 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

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 7

OR NEGLIGENT ACTS OR OMISSIONS OF

CONTRACTOR OR ITS OFFICERS, EMPLOYEES,

SUBCONTRACTORS, OR AGENTS UNDER THIS

AGREEMENT.

19. Limitation of Liability. EXCEPT FOR LIABILITY TO

THIRD PERSONS ARISING OUT OF OR RELATED TO

SECTIONS 16, 17 OR 18, NEITHER PARTY WILL BE

LIABLE TO THE OTHER FOR ANY LOST PROFITS,

LOST SAVINGS, OR PUNITIVE, INDIRECT,

EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL

DAMAGES.

20. Default; Remedies.

20.1. Default by Contractor. Contractor shall be in

default under this Agreement if:

20.1.1. 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;

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

20.1.3. Contractor commits any material breach or

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

20.2. OJD’s Remedies for Contractor Default. In the

event Contractor is in default under Section 20.1, OJD may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, but not limited to:

20.2.1. Termination of this Agreement under Section

21;

20.2.2. Withholding monies due for Services, Deliverables and Work Product that Contractor has failed to deliver within any scheduled completion date or has performed inadequately or defectively;

20.2.3. Initiation of an action or proceeding for

damages, specific performance, or declaratory or injunctive relief; or

20.2.4. Exercise of its right of setoff and withholding of

amounts otherwise due and owing to Contractor, without penalty.

20.3. Remedies Cumulative. The remedies set forth in

Section 20.2 are cumulative to the extent the remedies are not inconsistent, and OJD 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 Section 20.1, then Contractor shall be entitled to the same remedies of this Agreement as if it was terminated pursuant to Section 21.

20.4. Default by OJD. OJD shall be in default under this

Agreement if:

20.4.1. OJD fails to pay Contractor any amount

pursuant to the terms of this Agreement, and OJD 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

20.4.2. OJD commits any material breach or default of

any covenant, warranty, or obligation under this 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.

20.5. Contractor’s Remedies. In the event OJD

terminates the Agreement under Section 21, or is in default under Section 20.4, and whether or not Contractor elects to exercise its right to terminate the Agreement under Section 21, Contractor’s sole remedy shall be:

20.5.1. With respect to Services compensable at a

stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Agreement but not yet invoiced, authorized expenses incurred, and interest subject to ORS 293.462; and

20.5.2. 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 OJD, less previous amounts paid and any claim(s) that OJD has against Contractor. In no event shall OJD be liable to Contractor for any expenses related to termination of this Agreement or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay immediately any excess to OJD upon written demand.

21. Termination.

21.1. OJD’s Right to Terminate at its Discretion. OJD

may terminate this Agreement:

21.1.1. Upon 30 days’ prior written notice by OJD to

Contractor; or

21.1.2. Immediately upon written notice by OJD to

Contractor if OJD fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to pay for the Services or Work Product; or

21.1.3. Immediately upon written notice by OJD to

Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that OJD’s purchase of the Services or Work Product under this Agreement is prohibited or OJD is prohibited from paying for such Services or Work Products from the planned funding source.

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 8

21.2. OJD’s Right to Terminate for Cause. In addition to

any other rights and remedies OJD may have under this Agreement, OJD may terminate this Agreement immediately upon written notice by OJD to Contractor, or at such later date as OJD may establish in such notice, if Contractor is in default under Section 20.1.

21.3. Contractor’s Right to Terminate for Cause.

Contractor may terminate this Agreement immediately upon written notice to OJD, or at such later date as Contractor may establish in such notice if OJD is in breach pursuant to Section 20.4.

21.4. Return of Property. Upon termination of this

Agreement for any reason whatsoever, Contractor shall immediately deliver to OJD all of OJD’s property (including without limitation any Services, Deliverables, or Work Product for which OJD has made payment in whole or in part) that are in the possession or control of Contractor in whatever stage of development and form of recordation such OJD property is expressed or embodied at that time.

21.5. Effect of Termination. Upon receiving notice of

termination of this Agreement, Contractor shall immediately cease all activities under this Agreement, unless OJD expressly directs otherwise in such notice of termination. Upon OJD’s request, Contractor shall surrender to anyone OJD designates, all applicable case materials, documents, research, or objects or other tangible things needed to complete the Services and Deliverables.

22. Compliance with Applicable Law. Contractor shall comply with all federal, state, and local laws, regulations, executive orders, and ordinances applicable to this Agreement. 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 the contract: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996; (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) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) 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 this Agreement and required by law to be so incorporated. Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled plastic resin products and recycled paper, recycled PETE products, and other recycled products as defined in ORS 279A.010.

23. Subcontracts; Successors; Assignments.

23.1. Subcontracts. Contractor shall not enter into any

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

23.2. Successors and Assigns. The provisions of this

Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement, their respective successors, and permitted assigns, if any.

23.3. No Assignment. Contractor shall not assign, delegate, or transfer any of its rights or obligations under this Agreement.

24. No Third Party Beneficiaries. OJD 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 shall 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

25. Maintenance and Access to Records. Contractor shall maintain all financial records relating to this 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 Contractor, whether in paper, electronic or other form, that are pertinent to this Agreement (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that OJD and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to such financial records and other Records that are pertinent to this Agreement, 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 six years, or such longer period as may be required by applicable law, following final payment and termination of this Agreement, or until the conclusion of any audit, controversy, or litigation arising out of or related to this Agreement, whichever date is later.

26. Force Majeure. Neither OJD nor Contractor shall 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 OJD or Contractor, respectively. Contractor shall, however, make all reasonable efforts to remove or eliminate such cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement.

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 9

27. Notice. Except as otherwise expressly provided in this Agreement, any communications between the Parties hereto or notices to be given hereunder shall be given in writing by email, personal delivery, or mailing the same, postage prepaid, to Contractor or OJD at the address or email address set forth in this Agreement, or to such other addresses or email addresses as either Party may indicate pursuant to this Section. Any communication or notice so addressed and mailed shall be effective five days after mailing. Any communication or notice given by personal delivery shall be effective when actually delivered. Any communication or notice given by email shall be 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.

28. Severability. The Parties agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular term or provision held to be invalid.

29. Survival. All rights and obligations shall cease upon termination or expiration of this Agreement, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Agreement.

30. Merger Clause; Waiver. This Agreement and attached exhibits constitute the entire agreement between the Parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification, or change of terms of this Agreement shall bind all Parties unless in writing and signed by both Parties. Such waiver, consent, modification, or change, if made, shall be effective only in the specific instance and for the specific purpose given.

The failure of OJD to enforce any provision of this Agreement shall not constitute a waiver by OJD of that or any other provision.

31. Dual Payments. Contractor shall not be compensated by any other party for Services performed or Deliverables provided under this Agreement.

32. Counterparts. This Agreement may be executed in several counterparts, all of which when taken together constitute one agreement binding all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of the Agreement so executed constitutes an original.

33. 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 any procurement process relating to this Agreement, that constitutes a "claim" (as defined by ORS 180.750). 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. 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 of Oregon or OJD under this Agreement or any other provision of law.

34. Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.112 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 Agreement, to maintain such policy and practice in force during the entire Agreement term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling OJD to terminate this Agreement for cause.

35. Pay Equity.

35.1. 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 Agreement, and Contractor’s failure to comply constitutes a breach entitling OJD to terminate this Agreement for cause.

35.2. 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.

36. Foreign Contractor. 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 Agreement. Contractor shall demonstrate its legal capacity to perform the work under this Agreement in the State of Oregon prior to entering into this Agreement.

37. Ambiguities. Each Party has participated fully in the review and revision of this Agreement and neither Party shall be considered the “drafter” for the purposes of any rule of construction that might cause any provision to be construed against the drafter of the Agreement.

38. Criminal Background Check. Contractor’s employees, agents and subcontractors, if any allowed, that will

MSA – DOMESTIC RELATIONS MEDIATION SERVICES (OJD K# NUMBER) Page 10 perform Services under this Agreement must submit to a criminal background check if requested to do so by OJD.

If requested by OJD, such background check must occur prior to arrival on OJD premises or prior to performing any Services under this Agreement, whichever occurs first.

Background checks will be performed at…