Attachment A-Sample Contract to RFP S-DASOBO-00004937.doc

State of Oregon Sample Contract – Attachment A

Elliott State Research Forest Carbon Credit Market Certification and Sale of Credits Contract for Services No. PO-DASOBO-0000#### This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Department of Administrative Services, Procurement Services (“DAS PS”), on behalf of the Oregon Department of State Lands (“Agency)” and ________, a [_______][doing business as _____] (“Consultant”) and is effective as of the Effective Date.

Consultant’s Contract Administrator for this Contract is:

Name and Title

**Address

**City, State ZIP

Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@yahoo.com

DAS PS' Contract Administrator for this Contract is:

Kim O’Neill, Contract Specialist

Oregon Department of Administrative Services, Procurement Services 1225 Ferry St. SE

Salem, OR 97301

Cell: (971)349-0114

Kim.R.ONeill@DAS.Oregon.gov

Agency’s Contract Administrator for this Contract is:

Name and Title

**Address

**City, State ZIP

Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@yahoo.com

A party may change its Contract Administrator by providing the others notice in compliance with Section 17.6 of this Contract.

Contract Term.

The “Effective Date” of this Contract is the date this Contract 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 Contract terminates on _____. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Consultant that has not been cured.

Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

1.1. this Contract less all exhibits;

1.2. Exhibit A (Statement of Work);

1.3. Exhibit B (Required Insurance);

1.4. Exhibit C (Independent Consultant Certification), and

1.5. Exhibit D [EXHIBIT-IF NEEDED]

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

Services.

1.6. Performance of Services. Consultant shall perform the services (the “Services”) and deliver to Agency the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”). The Statement of Work includes the delivery schedule for the Deliverables and Services. Consultant shall perform the Services in accordance with the terms and conditions of this Contract.

1.7. Submission and Acceptance of Deliverables. When the Statement of Work requires Consultant to deliver Deliverables to Agency, then Consultant shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Work. Consultant shall provide written notice to Agency upon delivery of a completed Deliverables to Agency. By no later than (i) 15 business days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Work, Agency will determine whether the Deliverables has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Work. If Agency determines that the Deliverables has the characteristics and meets acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Consultant in writing of Agency’s acceptance of the Deliverables.

1.8. Rejection of Deliverables; Corrections. If Agency determines that a Deliverable does not have the characteristics or otherwise meet the acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Consultant in writing of Agency’s rejection of the Deliverables and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverables. Upon receipt of notice of non-acceptance, Consultant shall, within a 15-business day period, modify or improve the Deliverables at Consultant’s sole expense so that the Deliverables has the characteristics described in the Statement of Work and meets, in all material respects, the acceptance criteria, and notify Agency in writing that it has completed such modifications or improvements and re-tender the Deliverables to Agency. Agency will thereafter review the modified or improved Deliverables within 15 business days of receipt of the Consultant's delivery of the Deliverables. Failure of the Deliverables to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Work after the second submission will constitute a default by Consultant. In the event of such default, DAS PS or Agency may either, (i) notify Consultant of such default and instruct Consultant to modify or improve the Deliverables as set forth in this Section, or (ii) notify Consultant of such default and pursue its remedies for default provided for by law or the terms of this Contract.

Compensation.

1.9. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Consultant under this Contract, which includes any allowable expenses, is $***,***.**. Agency will not pay Consultant any amount in excess of the not-to-exceed compensation of this Contract and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Consultant performs Services subject to the amendment.

1.10. Payments. Payments, including interim payments, to Consultant 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.

1.11. Invoices. Consultant shall submit invoices to Agency as set forth in the Statement of Work or, if not set forth therein, to Agency’s Contract Administrator. Consultant may submit invoices in accordance with the payment schedule set forth in the Statement of Work or, if no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables and Services. The invoices must describe all Services performed with particularity, including the dates Consultant performed the Services for which it is requesting payment, and by whom the Services were performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Consultant claims reimbursement.

1.12. Expenses. Agency will not pay or reimburse any expenses incurred by Consultant during the completion of the Services except as authorized in the Statement Work or elsewhere in this Contract. 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

1.13. Funds Available and Authorized. Consultant will not be compensated for Services performed under this Contract 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 Contract within Agency’s biennial appropriation or limitation. Consultant understands and agrees that Agency’s payments under this Contract 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 Contract.

Consultant’s Personnel.

1.14. Key Persons. Consultant acknowledges and agrees that Agency selected Consultant, and is entering into this Contract, because of the special qualifications of Consultant's key persons identified in the Statement of Work (each a “Key Person” and, together, “Key Persons”). Neither Consultant nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Consultant employee, subcontractor, or agent without first obtaining the written consent of Agency. Further, Consultant 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, Consultant may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Consultant’s reasonable control, such as death, illness, or termination of employment with Consultant. In the event Consultant requests that Agency approve a re-assignment or transfer of a Key Person, or if Consultant 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 Contract, and the Statement of Work will be deemed amended to include such Key Person.

1.15. Payment for Replacement Key Personnel. If Agency is paying Consultant on an hourly or other periodic basis, then Consultant 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.

1.16. State Premises. Consultant and Consultant 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

1.17. Independent Contractor. Consultant shall perform all Services as an independent contractor. DAS PS and 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 Consultant's performance. Consultant is responsible for determining the appropriate means and manner of performing the Services.

1.18. No Conflicts. Consultant, by signature to this Contract, represents and warrants that Consultant’s performance of the Services under this Contract 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 Consultant currently performs work would prohibit Consultant from performing the Services under this Contract.

1.19. Affiliation. Consultant 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.

1.20. Taxes and Benefits. Consultant is responsible for all federal or state taxes applicable to compensation or payments paid to Consultant under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Consultant's federal or state tax obligations. Consultant is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Consultant under this Contract, except as a self‑employed individual.

Subcontracts, Successors, And Assignments

1.21. Subcontracts. Consultant shall not enter into any subcontracts for any of the Services required by this Contract without DAS PS’ prior written consent. In addition to any other provisions DAS PS may require, Consultant shall include provisions (in any permitted subcontract under this Contract) to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Consultant. DAS PS’ consent to any subcontract does not relieve Consultant of any of its duties or obligations under this Contract.

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

1.23. No Assignment. Consultant shall not assign or transfer any of its rights or delegate its obligations under this Contract without DAS PS’ prior written consent.

Representations and Warranties.

1.24. Consultant’s General Representations and Warranties. Consultant represents and warrants to DAS PS and Agency that:

1.24.1. Consultant has the power and authority to enter into and perform this Contract;

1.24.2. This Contract, when executed and delivered, is a valid and binding obligation of Consultant enforceable in accordance with its terms;

1.24.3. Consultant shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services;

1.24.4. Consultant prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

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

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

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

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

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

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

1.25. Consultant’s Performance Warranties.

1.25.1. Consultant has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Consultant 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 Consultant’s industry, trade, or profession;

1.25.2. The Services and each Deliverable delivered by Consultant pursuant to the Services will materially comply with any service descriptions, specifications, standards, or requirements set forth in this Contract;

1.25.3. Except as otherwise provided in this Contract (including Section 9), Consultant 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

1.25.4. Except as otherwise set forth in this Contract, any subcontractors performing work for Consultant under this Contract have assigned or will assign all of their rights in the Deliverables to Consultant or Agency and no third party has any right, title or interest in any Deliverables supplied to Agency under this Contract.

1.26. 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 Contract.

Ownership of Work Product.

1.27. Definitions. As used in this Section 9, and elsewhere in this Contract, the following terms have the meanings set forth below:

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

1.27.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Consultant.

1.27.3. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Consultant or Consultant’s subcontractors or agents (either alone or with others) pursuant to this Contract, 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).

1.28. Original Works. All Work Product created by Consultant 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 Consultant 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,” Consultant 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, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Agency. Consultant 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.

1.29. License in Consultant Intellectual Property. In the event that a Deliverable delivered by Consultant under this Contract is Consultant Intellectual Property, or is a derivative work based on Consultant Intellectual Property, or is a compilation that includes Consultant Intellectual Property, Consultant hereby grants to the State 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 Consultant Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

1.30. License in Third Party Intellectual Property. In the event that a Deliverable delivered by Consultant under this Contract is Third Party Intellectual Property, or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Consultant shall secure on the State’s behalf and in the name of the State 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.

1.31. No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Consultant any right, title, or interest in any intellectual property that is now owned or subsequently owned by the State. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon the State any right, title, or interest in any Consultant Intellectual Property that is now owned or subsequently owned by Consultant.

1.32. 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 Contract.

1.33. Competing Services. Subject to the provisions of this Section 9, and Consultant’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Contract precludes or limits in any way the right of Consultant to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Consultant in its sole discretion deems appropriate, or (ii) develop for Consultant 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 Contract. 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 Contract free of any use restriction or payment obligation to the other.

Confidential Information.

1.34. Confidential Information. Consultant acknowledges that it and its employees, officers, directors, agents, or subcontractors (collectively, “Consultant Staff”) may, in the course of performing the Services under this Contract, 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 Consultant or any Consultant Staff may come into contact with or that is obtained by Consultant or Consultant Staff in the performance of this Contract shall be considered for the purposes of this Contract the confidential information of Agency (“Confidential Information”). Consultant shall and shall cause Consultant 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 Consultant or Consultant 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 Contract; (iii) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (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 Consultant or Consultant Staff who can be shown to have had no access to the Confidential Information.

1.35. Non-Disclosure. Consultant shall hold, and shall cause Consultant 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 Consultant Staff of their obligations to keep Confidential Information confidential. Consultant shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Consultant shall advise DAS PS and Agency immediately in the event Consultant 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 Contract, and Consultant will at its expense cooperate with DAS PS and Agency in seeking injunctive or other equitable relief in the name of Agency or Consultant against any such person. Consultant shall not at any time during or after the term of this Contract, except as directed by DAS PS or Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at DAS PS or Agency’s request, Consultant shall deliver to Agency all documents, papers, and other matter in Consultant's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Consultant may keep one copy of such Confidential Information necessary for quality assurance, audits, and evidence of performance of the Services.

1.36. Confidentiality Policies. Consultant 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 Consultant will respond when a violation or possible violation occurs.

1.37. Injunctive Relief. Consultant acknowledges that breach of this Section 10, 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. Consultant 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.

1.38. Publicity. Consultant agrees that it will not disclose the form, content or existence of this Contract or 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 Consultant’s services, without the prior written consent of Agency.

Indemnity by Consultant.

1.39. Claims. Consultant 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 Consultant or its officers, employees, subcontractors, or agents under this Contract, 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 Contract.

1.40. Legal Counsel. If Consultant is required to defend the State of Oregon or Agency or their officers, employees, or agents under Section 11.1, then Consultant 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. Consultant'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.

1.41. Damages to State Property and Employees. Consultant 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 Consultant or its officers, employees, subcontractors, or agents under this Contract

1.42. CONSULTANT IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF DAS PS.

Limitation of Liabilities.

1.43. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, CONSULTANT’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 CONTRACT.

1.44. 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. Consultant shall maintain insurance as set forth in Exhibit B.

Default; Remedies; Termination.

1.45. Default by Consultant. Consultant will be in default under this Contract if:

1.45.1. Consultant institutes or has instituted against its insolvency, receivership, or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

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

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

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

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

1.46.1. Termination of this Contract under Section 14.6.2; or

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

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

1.46.4. Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Consultant, without penalty; or

1.46.5. 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 Consultant has been given notice if required by law.

1.47. Remedies Cumulative. The remedies set forth in Section 14.2 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 Consultant was not in default under Sections 14.1, then Consultant will be entitled to the same remedies as if this Contract was terminated pursuant to Section 14.6.1.

1.48. Default by Agency. Agency will be in default under this Contract if:

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

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

1.49. Consultant’s Remedies. In the event DAS PS or Agency terminates this Contract under Section 14.6.1, or Agency is in default under Section 14.4, and whether or not Consultant elects to exercise its right to terminate the Contract under Section 14.6.3, Consultant’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 Contract 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 Consultant. In no event will DAS PS or Agency be liable to Consultant for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Consultant exceed the amount due to Consultant under this Section 14.5, Consultant shall pay immediately any excess to Agency upon written demand.

1.50. Termination.

1.50.1. DAS PS’ Right to Terminate at its Discretion. DAS PS may terminate this Contract:

1.50.1.1. Upon 30 calendar days’ prior written notice by DAS PS to Consultant;

1.50.1.2. Immediately upon written notice by DAS PS to Consultant 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

1.50.1.3. Immediately upon written notice by DAS PS to Consultant 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 Contract is prohibited, or Agency is prohibited from paying for such Services or Work Products from the planned funding source.

1.50.2. DAS PS’ Right to Terminate for Cause. In addition to any other rights and remedies DAS PS or Agency may have under this Contract, DAS PS or Agency may terminate this Contract immediately upon written notice by DAS PS or Agency to Consultant, or at such later date as DAS PS may establish in such notice, if Consultant is in default under Section 14.1.

1.50.3. Consultant’s Right to Terminate for Cause. Consultant may terminate this Contract immediately upon written notice to DAS PS, or at such later date as Consultant may establish in such notice, if Agency is in default under Section 14.4.

1.51. Return of Property. Upon termination of this Contract for any reason whatsoever, Consultant 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 Consultant in whatever stage of development and form of recordation such Agency property is expressed or embodied at that time.

1.52. Effect of Termination. Upon receiving a notice of termination of this Contract, Consultant shall immediately cease all activities under this Contract, unless DAS PS expressly directs otherwise in such notice of termination. Upon DAS PS or Agency's request, Consultant 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.

1.53. Compliance with Law Generally. Consultant shall comply, and cause all subcontractors to comply with all federal, state, and local laws, regulations, executive orders and ordinances applicable to this Contract and the performance of the Services. Without limiting the generality of the foregoing, Consultant expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Contract: (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 Contract and required by law to be so incorporated. Agency’s performance under the Contract is conditioned upon Consultant's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Consultant shall, to the maximum extent economically feasible in the performance of this Contract, 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)).

1.54. Compliance with Oregon Tax Laws.

1.54.1. Consultant shall, throughout the duration of this Contract, 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.

1.54.2. Any violation of Section 15.2.1 constitutes a material breach of this Contract. Further, any violation of Consultant’s warranty in Section 8.1.5 of this Contract that Consultant 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 Contract. Any violation entitles DAS PS or Agency to terminate this Contract and entitles Agency, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to:

1.54.2.1. Termination of this Contract, in whole or in part;

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

1.54.2.3. 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 Consultant's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services.

1.54.3. 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.

1.55. Pay Equity. As required by ORS 279B.235, Consultant shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Consultant’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. Consultant’s compliance with this section constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles DAS PS or Agency to terminate this Contract for cause.

Consultant may not prohibit any of Consultant’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Consultant 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.

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

1.57. Venue and Jurisdiction. Any claim, action, suit or proceeding between DAS PS or Agency (or any other agency or department of the State of Oregon) and Consultant that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. CONSULTANT, BY EXECUTION OF THIS CONTRACT, 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.

1.58. Records Maintenance; Access. Consultant shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Consultant shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Consultant, whether in paper, electronic or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Consultant's performance. Consultant acknowledges and agrees that DAS PS 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 Contract, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Consultant 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 Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

1.59. Foreign Contractor. If Consultant is not domiciled in or registered to do business in the State of Oregon, Consultant 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 Contract. Consultant shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to entering into this Contract.

1.60. Force Majeure. Neither Agency nor Consultant 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 Consultant, respectively. Consultant 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 Contract.

1.61. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 17.4, and provisions regarding Contract definitions, warranties and liabilities, independent Consultant status and taxes and withholding, maximum compensation, Consultant’s duties of confidentiality, ownership and license of intellectual property and Deliverables, confidentiality and non-disclosure, Consultant’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.

1.62. Time is of the Essence. Consultant agrees that time is of the essence under this Contract.

1.63. Notice. Except as otherwise expressly provided in this Contract, 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 Consultant, DAS PS, or Agency at the email address, postal address or telephone number set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section 17.6. Any communication or notice mailed by US Postal Service is effective five (5) 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 Contract Administrator and to DAS PS. 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.

1.64. No Third Party Beneficiaries. Agency and Consultant are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract 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 Contract.

1.65. Severability. The parties agree that if any term or provision of this Contract 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 Contract did not contain the particular term or provision held to be invalid.

1.66. Merger Clause; Waiver. This Contract and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. No waiver, consent, modification or change of terms of this Contract will bind the parties unless in writing and signed by both parties and all necessary State approvals have been obtained. Such waiver, consent, modification, or change, if made, will be effective only in the specific instance and for the specific purpose given. The failure of DAS PS or Agency to enforce any provision of this Contract in one instance will not constitute a waiver by DAS PS or Agency of its right to enforce that or any other provision.

1.67. Amendments. DAS PS may amend this Contract to the extent permitted by applicable statutes and administrative rules. No amendment to this Contract is effective unless it is in writing signed by the parties and has been approved as required by applicable law.

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

1.69. Oregon False Claims Act. Consultant acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Consultant pertaining to this Contract, including the procurement process relating to this Contract, that constitutes a "claim" (as defined by ORS 180.750(1)).